Gujarat Panchayat Parishad vs Gujarat State Election ...
2021 Latest Caselaw 121 Guj

         C/SCA/16857/2020                                        ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 16857 of 2020

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               GUJARAT PANCHAYAT PARISHAD
                          Versus
GUJARAT STATE ELECTION COMMISSION THROUGH STATE ELECTION
                     COMMISSIONER
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Appearance:
MR CP CHAMPANERI(5920) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER WITH MS
AISHWARYA GUPTA, AGP - ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 2
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    CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
           and
           HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 06/01/2021

                                ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 By this writ application under Article 226 of the Constitution of

India, the writ applicant, a so­called organization of village panchayat,

district panchayat and district panchayat across the State of Gujarat, has

prayed for the following reliefs:

"(A) This Hon'ble Court may kindly be pleased to admit and allow the present petition.

(B) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of same and be pleased to direct the respondent no.1 and 2 to resume process of election of panchayat across the State and complete it at the earliest possible time frame in the interest of justice;

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(c) This Hon'ble may kindly be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of same and be pleased to direct respondent no.2 not to appoint Administrator in any panchayat at Village, Taluka and District level across the State.

(D) This Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of same and be pleased to direct the respondent no.2 to extend the term of elected bodies of various panchayats across the State at Village, Taluka and District level till holding of elections, in the interest of justice.

(E) Pending admission till final disposal of the present petition, this Hon'ble Court may be pleased to restrain the respondent no.2 authority from appointing Administrators in panchayat across the State whose term is likely to be over in the month of December, 2020 in the interest of justice.

(E) This Hon'ble Court will be pleased to pass such other and further order as the nature and circumstances of the case may require."

2 We have heard Mr. C. P. Champaneri, the learned counsel

appearing for the writ applicant and Ms. Manisha Lavkumar Shah, the

learned Government Pleader assisted by Ms. Aishwarya Gupta, the

learned A.G.P. appearing for the respondent No.2 - State of Gujarat.

3 As this writ application can be disposed of on a short ground, the

presence of the respondent No.1 - Gujarat State Election Commission is

not necessary.

4 Our attention has been drawn by the learned Government Pleader

as well as by the learned counsel appearing for the writ applicant to a

recent order dated 9th December 2020 passed by the Supreme Court in

the case of Parmar Samantsinh Umedsinh vs. State of Gujarat and

C/SCA/16857/2020 ORDER

others [Special Leave to Appeal (Civil) No.24950 of 2015 arising out of

the final judgement and order passed by this Court dated 29th July 2015

in Special Civil Application No.12084 of 2015]. The order passed by the

Supreme Court reads thus:

"Upon hearing the counsel the Court made the following

ORDER

I.A. No.124718/2020 in SLP (C) No.30635/2015

Heard Shri Tushar Mehta, learned Solicitor General appearing for the respondent/State, Shri Anirudh Sharma, learned counsel appearing for the petitioner and Shri Maninder Singh, learned senior counsel for State Election Commission. By this application the following prayers have been made:

"A. Stay the operation of the impugned final judgment and order dated 21.10.2015 passed by the Hon'ble High Court of Gujarat at Ahmedabad in Special Civil Application No.16313 of 2015, to the extent that it reads deemed extension of the term of an elected body which is contrary to the Constitutional mandate prescribed in Part IX and Part IX­A of the Constitution of India, and

B. Hold and declare that, on conclusion of the term of local bodies, in the event elections cannot be held on account of circumstances beyond control of the State Election Commission, the State government 1n consonance with the provisions of the Constitution of India would be empowered to appoint administrators to the local bodies till elections are held by the Respondent No.3 Commission...."

As per the constitutional provisions the term of the local bodies Municipality, Nagar Palika, Panchayat is to continue for five years from the date appointed for its first meeting and no longer. It is submitted by Shri Tushar Mehta that the tenure of Municipality Corporation/ Municipalities/Panchayats are coming to an end in December, 2020. He

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submits that looking to the pandemic Covid­19 the process of completion of election, before the end of tenure, could not be completed and State Election Commission has already taken a decision to postpone the process of preparation of voter list for a period of three months. On the query by the Court at what earliest time election of all the aforesaid bodies can be completed, Shri Maninder Singh, learned senior counsel, after instructions, submits that election of all the local bodies shall be completed by the end of February, 2021.

In the meantime, we are of the view that the Chief Executive Officer (whatever designation called in each local body) shall carry on necessary functions without taking any policy decision so that all local bodies will be smoothly run till the newly elected bodies take charge. We make it clear that as per the constitutional provision of Article 243E and 243U, the tenure of elected bodies is only for five years from the date appointed for its first meeting and no longer. After expiry of the tenure in the month of December, 2020, it goes without saying that elected bodies shall cease to function and as submitted fresh steps for constituting the fresh elected bodies shall be undertaken within the time stated hereinabove.

The application is disposed of accordingly."

5 Thus, on plain reading of the aforesaid order passed by the

Supreme Court, after the expiry of the tenure in the month of December

2020, the elected bodies shall cease to function and fresh steps for

constituting the fresh elected bodies shall be undertaken within the time

stated by the Supreme Court in the order referred to. We need not

adjudicate the matter any further in view of the aforesaid order of the

Supreme Court. The respondent - State of Gujarat shall proceed to act in

accordance with the order passed by the Supreme Court referred to

above.

6 At this stage, Ms. Shah, the learned Government Pleader pointed

out two things : First, with regard to the locus of the writ applicant as an

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organization to file the petition of the present type, and secondly, our

attention has been drawn by Ms. Shah to the observations made by the

Supreme Court that once the tenure expires, it is for the Chief Executive

Officer (whatever designation called in each body) would continue with

the necessary functions without taking any policy decision till the newly

elected bodies take charge. Ms. Shah further pointed out that apropos

the directions issued by the Supreme Court, the necessary instructions

have been issued by the State Government to all the local authorities in

this regard.

7 With the above, this writ application stands disposed of.

(J. B. PARDIWALA, J)

(ILESH J. VORA,J) CHANDRESH