Gujarat High Court
Himmatsinh Narvatsinh Dabhi vs Gujarat State Election ... on 24 February, 2021
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/3797/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3797 of 2021
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HIMMATSINH NARVATSINH DABHI
Versus
GUJARAT STATE ELECTION COMMISSION
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Appearance:
MR. AAMIR S PATHAN(7142) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MS. MANISHA LUVKUMAR SHAH, LD. GOVERNMENT PLEADER WITH
MS. AISHWARYA GUPTA, LD. AGP (99) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 24/02/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. We have heard Mr. Darshit R. Brahmbhatt, the learned
counsel appearing for the writ applicant and Ms. Manisha L.
Shah, the learned Government Pleader assisted by Ms.
Aishwarya Gupta, the learned AGP appearing for the
respondent No.1.
2. In the light of the provisions contained in Article 243O(b)
of the Constitution of India, which provides that no election to
any Panchayat shall be called in question except by an election
petition presented to such authority and in such manner as is
provided for by or under any law made by the legislature of a
State, we do not consider that it is permissible to interfere with
the acceptance or rejection of the nomination papers for the
C/SCA/3797/2021 ORDER
ensuing municipalities election/corporation election. The
election process commences from the issuance of the calender
of events till the results of the election are declared. As the
acceptance or rejection of the nomination is one of the stages
in the process of election, the validity of it can only be
challenged in election petition and not under Article 226 of the
Constitution of India. There was a controversy earlier to the
introduction of Part IX and Article 243O of the Constitution, as
to whether the principles underlying Article 329 of the
Constitution could be extended to the matters relating to the
elections to the various local bodies. But, ultimately now the
controversy is put an end to by the introduction of the Article
243O( b) of the Constitution of India. Hence, we are of the view
that the jurisdiction under Article 226 of the Constitution of
India cannot be exercised as against the order of acceptance
or rejection of the nomination paper or in respect of any of the
stages of the election process.
3 In taking the aforesaid view, we are fortified by an order
passed by a coordinate bench of this Court in the case of
Parshottam Dayabhai Yadav Vs. Election Commission of
India & Anrs.; Special Civil Application No.16166 of 2012;
decided on 4th December, 2012. We quote the relevant
observations:-
"2. The petitioner wanted to contest the election from
legislative constituency No.79 - Jamnagar South. His
nomination paper has been rejected and he has
challenged the rejection of his nomination papers.
3. Mr.Preman Rachh, learned advocate for the
petitioner has placed reliance on the Apex Court decision
- Pothula Rama Rao Vs.Pendyala Venkata Krishna Rao &
Ors. Reported in AIR 2007 SC 2924. On the strength of
this judgment, he has urged that his nomination paper
C/SCA/3797/2021 ORDER
has wrongly been rejected as it was not signed by 10
proposers.
4. On the other hand, Mr.Percy Kavina, learned senior
counsel assisted by Mr.Biren Vaishnav, learned advocate
for the respondent No.1 has urged that the remedy is not
available to the petitioner, and against the rejection of
nomination paper, the remedy available to the petitioner
is filing a election petition. He has placed reliance on an
Apex Court decision - Manda Jaganath Vs. K.S.Rathnam &
Ors. Reported in AIR 2004 SC 3600.
5. We are in agreement with the view taken by the
Hon'ble Apex Court in Manda Jaganath's case (supra).
The proper remedy available to the petitioner is to
challenge his rejection of nomination paper after the
elections are over by filing election petition. This petition,
therefore, is dismissed on the ground of alternative
remedy of election petition."
4. In view of the aforesaid, this writ application fails and is
hereby rejected.
(J. B. PARDIWALA, J)
(ILESH J. VORA,J)
Vahid
