Vejabhai Masribhai Chandera vs State Of Gujarat
2021 Latest Caselaw 696 Guj

        C/SCA/11942/2020                                        ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 11942 of 2020

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                     VEJABHAI MASRIBHAI CHANDERA
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR VIJAY H NANGESH(3981) for the Petitioner(s) No. 1
MR KANVA ANTANI, AGP for the Respondent(s) No. 1
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 2
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 3
NOTICE SERVED(4) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 19/01/2021

                                 ORAL ORDER

1. Heard learned advocate Mr.Vijay Nangesh for the petitioner, learned advocate Ms.Roopal Patel for the respondent No.2 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 petitioner has prayed for the following reliefs:

"(A) Your Lordship may be pleased to admit and allow this petition;

(B) Your Lordship may be pleased to issue appropriate writ order or direction to quash and set aside the order on dated 09­09­2020 issued by the respondent No.2 (Annexure­A) and be pleased to direct the respondent authority to declare 17­Maktupur District Panchayat seat as General Category in the interest of justice;

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(D) Any such order and / or further orders that may be through just and proper, in the facts and circumstances of the present case."

3. Brief facts of the case are as under:

3.1 The petitioner is a resident of the village Loej, Taluka Mangrol, District Junagadh.

3.2 The petitioner came to know that on 09.09.2020, the Gujarat State Election Commission­ respondent no.2 issued order for allocation of reserved seats on rotation for Junagadh District Panchayat election as per Gujarat Taluka and District Panchayat Elections (Manner of Allotment of reserved Seats by Rotation) Rules, 1994 (for short "the Rules,1994") wherein in the Schedule at Sr. No. 17 Maktupur constituency is declared as reserved seat for the Scheduled Caste.

3.3 The petitioner raised an objection by application dated 10.09.2020 before the Collector, Junagadh by stating that allocation reserved seat by the rotation for Maktupur Taluka Panchayat is not correct and there is a mistake as boundaries of village Maktupur and Village Mankhetra do not touch geographically and village Mankhetra is near to Mangrol Taluka.

3.4 The petitioner also submitted that boundaries of the villages Mankhetra and Maktupur are not geographically attached and accordingly there is

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error in considering numbers of the Scheduled Caste voters is as 3174 whereas, voters of the Scheduled Caste are only 2637 in the Maktupur District Panchayat seat and therefore, as per the rotation Maktupur ought to have been at Sr. No.4 and generalcategory seat is required to be allotted.

3.5 It was submitted by the petitioner that as per the Gujarat Taluka & District Panchayat (Delimitation of Electoral Division) Rules, 2010 (for short" the Rules,2010"),as per rule 2 if the State Election Commission is satisfied that in order to maintain homogeneity and geographical continuity in the electoral division then only the boundaries villages can be altered but in the present case boundaries of both the villages are separate, the respondent no.2 could not have passed under the Rules,2010.

3.6 According to the petitioner, in the provisions of Rule 4 of Rules, 1994, it is clearly stated that, the Election Commission shall determine the electoral division of Taluka and those of districts, which consists of population of Scheduled Caste and such electoral division of a Taluka and District shall be arranged in accordance with the percentage of population of the Scheduled Caste in such electoral division beginning with the electoral division consisting the highest percentage of population of the Scheduled Caste and shall be assigned Serial No. of SC 1, SC 2 and so on,

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however,in the present case, if the villages are assigned in Serial Number as per the population then, the Maktupur seat is required to be declared as General category.

4. The Learned advocate Mr. Nangesh submitted that the respondent No.1­State Election Commission has passed the final order dated 9th September, 2020 contrary to the Rule 2 of the Rules, 2010 which provides that the State Election Commission is to be satisfied that in order to maintain homogeneity and geographical continuity in the electoral division, which is not maintained by the State Election Commission in the facts of the case, and therefore, the petitioner made an application on 10.09.2020 to the District Collector, Junagadh pointing out that the village Mankhetra cannot be included in electoral division of village Maktupur as boundries of both the villages are separate, and therefore there is a technical error.

5. The Learned advocate Mr.Nangesh would also would submit that the allocation of seats to Schedule Caste for Maktupur electoral constituency is also contrary to the number of persons belonging to Schedule Caste residing there and as both the villages are separate, allocation as per the Rules, 1994 are to be considered separately.

6. On the other hand, the learned advocate Ms.Patel appearing for the State Election Commission submitted

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that the petition is not maintainable as no specific prayer is made by the petitioner. It was submitted that for the year 2020 there was no delimitation process undertaken by the respondent No.2­ Gujarat State Election Commission 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 preferring Election Petition. It was submitted that 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. The 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:

"5. I state that, in sum and substance grievance raised by the petitioner in the present petition is to the effect that, 17­Maktupur which has been allotted SC seat is wrong and it should be allotted General Category Seat.

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 etc. As per the Rule­4, firstly to 2015 election is not changed so far Junagadh District Panchayat is concerned and therefore, any grievance of the petitioner pertains to delimitation would nto stand at all. Even otherwise process of delimitation of electoral divisions and reservation of seats falls within the domain of the State Government. Function of the Election Commission is

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to allot/rotate the seat in accordance with the Rules. In any case, petitioner's grievance relating to delimitation has no leg to stand.

6. After understanding Rules on the subject of allotment of seats and rotation thereof, I may demonstrate that, as to whether allotment of SC seat to 17­Maktupur is legal or not for which petitioner has raised the grievance in particular. 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 woman 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 Schedule Caste. Noteworthy is that, as per the Rules, firstly seats have to be allotted to the SC.

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 giving to Electoral Division Koylana Taluka Panchayat Manavdar and Electoral Division Dhandhusar Taluka Panchayat Vanthali respectively. Two seats were reserved for SC woman and one for SC and hence, first and third Taluka Panchayat were allotted SC woman seats and second was allotted 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.

Now, in 2020 the government has allotted two seats to SC woman and one seat to SC. Since, in 2015, three seats were allotted to electoral divisions having specific 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. Electoral Division Balagam Taluka Panchayat Keshod, Electoral Division Agatrai Taluka Panchayat Keshod and Electoral Division Maktupur Taluka Panchayat Magrol are having SS 4, SC 5 and SC 6 respectively as per percentage of population of SC. They have been allotted SC woman, SC & SC woman seats respectively legally and rightly. As such, the Final Notification dated 09.09.2020 is quite legal, cannot be faulted for. Therefore, petitioner's claim that, 17­Maktupur District Panchayat seat should be declared for General Category, stands no legal test. I say and submit that, In view of Rule­10 of Gujarat Taluka and District Panchayats (Manner of Allotment of Reserved Seats by Rotation) Rules, if any question arises as to interpretation of these Rules, the question

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shall be referred to the Election Commission for its decision and its decision shall be final.

It is also not out of context to state that, petitioner had submitted his objections dated 10.09.2020 against the said Notification dated 09.09.2020. The respondent commission has already given due reply dated 24.09.2020 to it. Annexed hereto and marked as Annexure­U is a copy of the said reply dated 24.09.2020.

In the premises aforesaid, in issuing Final Notification dated 09.09.2020 qua Junagadh District Panchayat, no illegality is committed. As per the claim of the petitioner, 17­Maktupur District Panchayat cannot be given General Category seat. Thus, the present petition is devoid of any merits, requires to be rejected in order to run smooth election process."

8. Having considered the rival submissions and having gone through the materials on record, it appears that the petition is not maintainable as election process has already started as held by 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, wherein, the Division Bench has held as under:

"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,

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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 non­payment 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."

9. Moreover, the respondent No.2­State Election Commission has explained in detail in the aforesaid affidavit with regard to the grievance raised in the petition for inclusion of village Mankhetra in electoral constituency of Maktupur on the basis of the census which was carried out in the year 2011. It is also emerging from the record that no delimitation process was initiated as provided under Rule 2 of the Rules, 2010 for allocation of seats in the impugned order of 2010 and therefore, there is no question of considering inclusion or exclusion of village Mankhetra from electoral division of village Maktupur.

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10. Allocation of the seat to the reserved category of Schedule Caste is also as per the Rules, 1994 which is explained in detail in the aforesaid affidavit and considering such explanation it cannot be said that there is violation of any of the Rules to allocate the seat to Schedule Caste because the petitioner has prayed for allocation of seat to general category on the presumption that the Mankhetra village is to be excluded from the electoral constituency of Maktupur. On such presumption, the impugned order cannot be said to be faulty or contrary to the Rules, 1994.

11. In view of the foregoing reasons, no interference is called for in the impugned order dated 09.09.2020 because there is no infirmity in the said order and the same is in consonance with the Rules, 1994. The petition therefore lack merit and is accordingly dismissed. Notice is discharged.

(BHARGAV D. KARIA, J)

PALAK