Surajkumar Dipakbhai Chavda vs The Gujarat State Election ...
2021 Latest Caselaw 658 Guj

        C/SCA/13666/2020                                        ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 13666 of 2020

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                SURAJKUMAR DIPAKBHAI CHAVDA
                            Versus
      THE GUJARAT STATE ELECTION COMMISSION THROUGH ITS
                         SECRETARY
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Petitioner(s) No. 1,2
MR RAHUL K DAVE(3978) for the Petitioner(s) No. 1,2
MR K.M.ANTANI, AGP for the Respondent(s) No. 2
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 19/01/2021

                                 ORAL ORDER

1. Heard learned advocate Mr.Kirtidev Dave for the petitioners, learned advocate Ms.Roopal Patel for the respondent No.1 and learned Assistant Government Pleader Mr.K.M.Antani for the respondent­State through video conference.

2. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:

"a. Your Lordships be pleased to admit this petition.

b. Your Lordships be pleased to issue writ of mandamus or any other appropriate writ, direction and/or orders directing the Respondents to reconsider the notification dated 09/09/2020 for the purpose of reservations of seats for the elections to the district and Taluka Panchayat elctions of

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Junagadh district in accordance with law and after considering the representations of the petitioners and other persons or parties made before it.

c. Your Lordship be pleased to direct the respondents not to take further steps for the elections of district and Taluka Panchayat in Junagadh district on the basis of the notification dated 09/09/2020 pending admission, hearing and final disposal of this petition.

d. Your Lordship be pleased to grant any other relief/s as may be deemed fit in the facts and circumstances of the case."

3. The petitioners are residence of Keshod Taluka in Junagadh District. The petitioner No.1 is elected Sarpanch of Gram Panchayat of village Sondarda. The petitioners are aggrieved by the publication of the notification dated 9th September, 2020 by the respondent­Gujarat State Election Commission.

4. According to the petitioners, the notification dated 9th September, 2020 allocating seats of Junagadh District Panchayat among various categories is contrary to the Gujarat Taluka and District Panchayat Election (Manner of Allotment of Reserved Seats by Rotation) Rules 1994 (for short 'the Rules, 1994').

5. Learned advocate Mr.Dave submitted that Sub­ section 5 of Section 11 of the Gujarat Panchayat Act, 1993 (for short 'the Act, 1993') provides for reservation of seats for Schedule Castes and Schedule Tribes in every district which shall be in proportion to the total number of seats to be filled in by direct election in the District Panchayat as the population of the Schedule Caste in the district or

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as the case may be Schedule Tribes in the district ­ to the total population in the district. Therefore, it was submitted that the reserved seats have to be as per the ratio of the population of the caste or tribe in the area. Learned advocate Mr.Dave would submit that in the year 2010, allocation of the seat was made as per the census of 2001 whereas, for the election held in 2015, the seat allocation was made by the State Election Commission on the basis of census of 2011. Learned advocate Mr.Dave would submit that without inviting the objections from the petitioners and public at large the State Election Commission has allocated the seats among various categories in the impugned notification dated 09.09.2020. Learned advocate Mr.Dave therefore submitted that the impugned notification deserves to be quashed and set aside as the seat allocation is not in accordance with the Rules, 1994.

6. On the other hand learned advocate Ms.Patel appearing for the respondent No.1­State Election Commission submitted that the petition is not maintainable as no specific prayer is made by the petitioners. It was submitted that for the year 2020 there was no delimitation process undertaken by the respondent No.1­Commission and therefore, there was no need for inviting any objection. Reliance was placed on Clause (b) of Article 243­O of the Constitution of India to point out that the election of any Panchayat cannot be called into question except by Election Petition. It was submitted that

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the election process would start as soon as finalization of electoral division and therefore, the petition is not maintainable challenging the final order dated 09.09.2020 whereby, allocation of seats are made on the basis of the Rules, 1994.

7. Learned advocate Ms.Patel relied upon the following averments made in the affidavit­in­reply filed by the respondent No.1­Election to oppose the petition which reads as under:

"6. In this context, it would be apt to refer to the Gujarat Taluka and District Panchayat Elections (Manner of Allotment of reserved Seats by Rotation) Rules, 1994 which are annexed hereto and marked as Annexure­S for ready reference. These Rules inter alia provides as to how to allot reserved seats to SC, ST, SEBC, ect. As per the Rule­4, firstly Election Commission has to determine the electoral divisions of Taluka and those districts which consists of population of Schedule Caste and such electoral divisions of Taluka and District shall be arranged in accordance with the percentage of population of Schedule Caste in such electoral divisions consisting of the highest population of Schedule Caste and shall be assigned special serial number SC 1, SC 2 and so on. It is relevant to mention that, definition of 'Population" is provided in Article­243 (f) of the Constitution of India, according to which "Population" means last census which was carried out. For the purpose of present election, census which was carried out in the year 2011 is the last census and which has to be kept in view for 2020 election and which had also been kept in view in 2015 election.

7. After understanding Rules on the subject of allotment of seats and rotation thereof, it is apt to peruse notifications of 2015 as well as 2020 in order to ascertain as to whether allotment/rotation of seats carried out by the respondent No.1 is in consonance with the Rules or not. The final Notification dated 03.09.2015 qua 2015 Election is annexed hereto and marked as Annexure­T. This Notification reflects that, two seats had been allotted to SC women and one seat was allotted to SC by the Government. Keeping in view, last census which was carried out in the year 2011, in accordance with the said Rules, Election Commission had assigned special serial numbers to electoral divisions beginning with the highest percentage of population of the Scheduled Caste. Noteworthy is that, as per the Rules, firstly seats have to be allotted to the SC.

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Since, three seats were reserved for SC firstly, three electoral divisions with highest population had to be identified. Apropos, in 2015 special serial number i.e. SC 1, SC 2 & SC 3 were given to Electoral Division Matiana, Taluka Panchayat Manavadar, Electoral Division Koylana Taluka Panchayat Manavdar and Electoral Division Dhandhusar Taluka Panchayat Vanthali respectively. Two seats were reserved for SC women and one for SC and hence, first and third seats were allotted SC woman seats and second was alltted SC seat appropriately in the year 2015. Based on this, in the next election i.e. election of 2020, seats have to be rotated and not to be given to SC 1, SC 2 & SC 3. Noteworthy is that, if more than one seat comes in one Taluka, than first seat shall be allotted to woman, second to male and so on and so forth.

Now, in 2020 the government has allotted two seats to SC women and one seat to SC. Since, in 2015, three seats were allotted to electoral divisions having special serial numbers SC 1, SC 2 and SC 3, now in 2020 due to rotation, seats would have to be allotted to special serial numbers SC 4, SC 5 and SC 6. Electiral Division Balagam Taluka Panchayat Keshod, Electoral Division Agatrai Taluka Panchayat Keshod and Electoral Division Maktupur Taluka Panchayat Magrol are having SS 4, SC 5 & SC 6 respectively as per percentage of population of SC. They have been allotted SC woman, SC & SC woman seats respectively legally and rightly. Accordingly reset of the seats of respective categories viz. ST, SEBC and general seats have been rotated within the bounds of statutory Rules by the respondent No.1 herein in 2020 which I can demonstrate at the time of hearing of the present petition. Annexed hereto and marked as Annexure­U is a document prepared for explaining more easily as to how rotation of seats is carried out in 2020 and which is in accordance with the Rules. As such, the Final order dated 09.09.2020 is quite legal, cannot be faulted for. Therefore, petitioners' s claim that, Final Order dated 09.09.2020 should be reconsidered in accordance with law by respondent No.1 for the purpose of reservation of the seats for the elections to the district and Taluka Panchayat elections of Junagadh has no leg to stand. In fact, if Notifications of 2015, 2020 and the said Rules are juxtaposed, the said Notification on the face of them are quite legal, do not warrant reconsideration from any angle. I say and submit that, In view of Rule­10 of Gujarat Taluka and District Panchayat (Manner of Allotment of Reserved Seats by Rotation) Rules, if any question arises as to interpretation of these Rules, the question shall be referred to the Election Commission for its decision and its decision shall be final.

In the premises aforesaid, in issuing Final Order dated 09.09.2020 qua Junagadh District Panchayat, no illegality is committed and hence, do not warrant reconsideration from any angle. Thus, the present petition is devoid of any merits, requires to be rejected in order to run smooth election process."

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8. Referring to the above averments made in the affidavit­in­reply, it was submitted that the petition deserves to be dismissed in view of the fact that the petitioners have failed to point out any violation of any of the Rule of the Rules, 1994.

9. Having considered the rival submissions and having gone through the record, I am of the opinion that though the petition may be maintainable, it cannot be entertained in view of the absence of any specific lacuna pointed out by the petitioners in the impugned order dated 09.09.2020. The only grievance of the petitioners is that the reservation which was made in the year 2010 is repeated in the year 2020 without pointing out breach of any of the rules of Rules, 1994. On the other hand the affidavit of the respondent No.1­State Commission is clear on this issue that the impugned order dated 09.09.2020 is passed in consonance with the Rules, 1994 for the purpose of reservation of the seats for the election of the Taluka and District Panchayat of Junagadh.

10. The reliance placed by the respondent No.1 on the decision of the Division Bench of this Court in case of Prafulbhai Ladhabhai Raiyani V/s. State of Gujarat and others in Special Civil Application No.19068 of 2015 and other allied matters rendered on 26.11.2015 would squarely apply to the facts of the case, wherein, the Division Bench has held as under:

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"11. From such decisions, it can be seen that interference by the Court in exercise of writ jurisdiction during an intermediate stage of election to the local bodies is a rare and exceptional phenomena. Only in a given case as highlighted by the Supreme Court in case of Ashok Kumar (supra), decision of the Election Commission is found to be male fide, judicial review would be open. There too, interference would not permit derailing, delaying or protracting the ensuing election. Power can be exercised for facilitating the process of free and fair election.

12. In view of such legal position, we are not inclined to entertain this petition at this intermediate stage. Counsel for the petitioner however submitted that it is always open for the Court to interject when it is found that the acceptance of the nomination is not according to Rules. Even if such a view were to be accepted, interference by the High Court would be extremely rate and in exceptional circumstances and not in a routine manner merely because some prima facie arguable point being pointed out by the petitioner. In the present case, Counsel for the petitioner argued that there was no requirement of any special being issued once the final order was passed by the authority. In this context, Counsel relied on the decision of Division Bench of this Court in case of Chinubhai Khodidas Patel Vs. Election Officer­Mehsana Nagarpalika and Special Land & Ors., reported in 2008 (2) GLH, page No.785. Counsel invited our attention to para­8 of the said judgment wherein the Bench observed that Had it been a case where there was final decision by the Director of Municipality under Section 70 of the Act for fastening of the financial liability and non­ payment thereof by the petitioner, it might stand on a different consideration. Such once sentence cannot be picked out of context from entire judgment as to contend that the same lays down ratio of the decision. In any case, any such arguable point would not be sufficient to interfere with the decision of the Election Officer accepting nomination of a candidate. All such questions can be examined in properly instituted election petition once the election is over and result of the election is declared. With these observations, the petitions are dismissed."

11. In view of the above dictum of law, no interference is required to be made at this stage and the petition cannot be entertained by interjecting the electoral process which is already set in motion and there are no rare and exceptional circumstances emerging from the fact of the case which would require any interference while exercising

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extraordinary jurisdiction under Article 226 of the Constitution of India.

12. In view of the above facts and circumstances, the petition being devoid of any merit, is dismissed. Notice is discharged.

(BHARGAV D. KARIA, J)

PALAK