Gujarat High Court
Maheshbhai Bhikhabhai Vasava vs Election Commission on 14 September, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6267 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MAHESHBHAI BHIKHABHAI VASAVA
Versus
ELECTION COMMISSION
==========================================================
Appearance:
MR. V.C. VAGHELA, LD. ADVOCATE WITH MR. ANIL H PATEL(7832) for
the Petitioner(s) No. 1
MR. AYAN PATEL, LD. ASST. GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
UNSERVED REFUSED (N)(10) for the Respondent(s) No. 4,5
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 14/09/2021
ORAL JUDGMENT
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ application under Article 226 of the
Constitution of India, the writ applicant has prayed for the
following reliefs;
"(A) Your Lordships may be pleased to admit and
allow this Petition.
(B) Your Lordships may be pleased to issue writ of
mandamus or writ in the nature of mandamus or any
other appropriate writ order or direction quashing
and setting aside the election result of ward no.5 for
the seat reserved for schedule tribe candidate
declaring Respondent No.4 as elected as illegal and
further be pleased to declare the petitioner as
elected from ward no.5 seat reserved for schedule
tribe candidate as Councilor for Rajpipla Nagarpalika
and further be pleased to direct the respondent no.3
to modify the election result of ward no.5 of Rajpipla
Nagarpalika accordingly.
(C ) Pending admission and final disposal of this
petition Your Lordships may be pleased to restrain
the Respondent No.4 from functioning as Councilor of
Rajpipla Nagarpalika from ward no.4.
(D) Any other and further relief/s that may be
deem, just and proper may kindly granted in the
interest of justice."
2. The facts, giving rise to this writ application may be
summarized as under;
2.1 The writ applicant is a resident of Rajpipla Town,
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
District: Narmada and is a voter in the Ward No.5 of the
said town. The writ applicant contested the election for
the post of Councillor from the ward No.5 on a seat
reserved for the Scheduled Tribe.
2.2 The respondent No.4 is also a resident of Rajpipla,
and she too contested the election to the post of
Councillor from the ward No.5.
2.3 It is the case of the writ applicant that he contested
the election on the seat reserved for Scheduled Tribe,
whereas the respondent No.4 contested on the seat
reserved for woman in General Category.
2.4 The election was held on 28.02.2021 and the results
were declared on 02.03.2021. The votes secured by the
first 09 candidates were as under;
Sr. No. Name of Candidates Affiliated to the Total votes
Political Party received
Solanki Party
Mahendrakumar Rami Party
Vasava Party
(Writ Applicant)
Shaikh Rashtriya
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
Congress
Chauhan Rashtriya
Congress
6. Shahenurbibi Shahrukhkhan Bhartiya 1054
Pathan Rashtriya
Congress
Vasava Party
(Respondent No.4)
Vasava Rashtriya
Congress
Mohammed Fakir PartY
2.5 It is the case of the writ applicant that on the seat
reserved for the Scheduled Tribe, he secured the highest
number of votes, i.e, 776. His grievance is that despite the
fact that he secured the highest number of votes on the
seat reserved for the Scheduled Tribe, the Returning
Officer declared the respondent No.4 as the winner on the
seat reserved for the Scheduled Tribe despite the fact
that the respondent No.4 contested the election on the
seat reserved for woman in General Category.
2.6 In other words, the case put up by the writ applicant
is that the respondent No.4 having contested the election
on a seat reserved for woman in General Category could
not have been declared as elected on the seat reserved
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
for the scheduled tribe.
2.7 In such circumstances, referred to above, the writ
applicant first lodged his objections before the Collector,
Narmada vide application dated 02.03.2021 followed by a
second application dated 03.03.2021.
2.8 It appears that ultimately the writ applicant was
informed that there was no substance in the grievance
redressed by him vide the two applications referred to
above and vide the communication in writing dated
02.08.2021, the Returning Officer informed the writ
applicant that his objections as regards the declaration of
the result stood overruled.
2.9 In such circumstances, referred to above, the writ
applicant is here before this Court with the present writ
application.
Submissions on behalf of the writ applicant:-
3. Mr. V.C. Vaghela, the learned counsel assisted by Mr.
Anil H. Patel, the learned advocate appearing for the writ
applicant vehemently submitted that the declaration of
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
the result of the ward No.5 could be said to be absolutely
illegal and contrary to the provisions of the Gujarat
Municipalities Act, 1963 (for short "the Act, 1963") and the
Gujarat Municipalities (Conduct of Election) Rules, 1994
(for short "the Rules, 1994").
4. The principal argument of Mr. Vaghela is that the
respondent No.4 having declared in no uncertain terms in
her nomination form filled up in the Form No.3 as
prescribed by Rule 7 of the Rules that she proposed to
contest the election on the seat reserved for woman of
General Category could not have been declared as a
winner on the seat reserved for the Scheduled Tribe. To
put it in other words, the argument of Mr. Vaghela is that
although the respondent No.4 belongs to the Scheduled
Tribe, yet she was entitled to contest the election even on
a general seat reserved for woman and having contested
the election on the seat reserved for woman of general
category, could not have been declared as a winner on the
seat reserved for Scheduled Tribe.
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
5. Mr. Vaghela would submit that his client, i.e, the writ
applicant secured highest votes so far as the seat
reserved for the scheduled tribe is concerned and, in such
circumstances, it is the writ applicant who should have
been declared as elected or winner on the seat reserved
for the scheduled tribe.
6. Mr. Vaghela invited the attention of this Court to the
following averments made in the memorandum of his writ
application which according to him makes the picture
more clear. We quote the same as under;
"It is submitted that after the list of votes secured by
each candidate was declared the Respondent No.3
had to declare the candidates who are elected as per
the schedule declared by Respondent No.1. It is
submitted that in ward No.5 the first seat was
reserved for schedule caste candidate and Smt.
Vanitaben Kamalbhai Chauhan had secured 868
votes and filled up her nomination form as schedule
caste candidate and therefore Vanitaben Kamalbhai
Chauhan was declared as elected. The second seat
was reserved from women and the seat reserved for
women was in the general category. Therefore, Smt.
Shahenurbibi Shahrukhkhan Pathan having secured
highest votes from general category women seat was
declared elected. The third seat was reserved for
scheduled tribe community. The Petitioner had filled
up the form from scheduled tribe community and had
secured 776 votes whereas the other candidate i.e.,
Sanjaybhai Kadujibhai Vasava had secured only 667
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
votes therefore the Petitioner was required to be
declared elected instead the Respondent No.3
declared Sapnaben Rameshbhai Vasava as elected
from schedule tribe reserved seat as respondent
No.4 had received 887 votes. It is submitted that
since Respondent No.4 had not filled her nomination
form from seat reserved for the schedule tribe
candidate, Respondent No.4 cannot be declared
elected from the seat reserved for schedule tribe
candidate. It is submitted that the forth seat was for
general category and Respondent No.4 had received
more votes than Respondent No.5 and therefore the
Respondent No.3 ought to have declared Respondent
No.4 as elected from seat for general category
candidates. It is submitted that as soon as the
Respondent No.4 was declared as elected in place of
the Petitioner, the Petitioner gave objection and
requested the election officer to declare the
Petitioner as elected from the schedule tribe reserve
seat from ward No.5.
The petitioner states that the Petitioner had filed his
nomination form from ward no.5 for seat reserved for
schedule tribe whereas respondent No.4 had filed her
nomination form for the seat reserved for women in
general category. The election was held and the
Petitioner received 776 votes whereas Respondent
No.4 received 887 votes and respondent no.5
received 857 votes. As per the schedule issued by
the Respondent No.1 for ward No.5 the first seat was
reserved for schedule caste and therefore candidate
who had secured the highest votes from schedule
caste was to be declared elected. The second seat
was reserved for general category women and
therefore the women candidate who received highest
votes was to be declared elected and one
Shahenurbibi had received 1054 votes was declared
elected. The third seat was reserved for schedule
tribes candidates and only two candidates had filed
their nomination for schedule tribe seat therefore the
Respondent No.3 could not have considered
Respondent No.4 as candidate for schedule tribe
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
because Respondent No.4 had not offered herself as
scheduled tribe candidate. The Respondent No.3
without taking into such fact into consideration
declared Respondent No.4 elected in the seat
reserved for schedule tribe candidate. The Petitioner
filed objection which was not considered. It is
submitted that Respondent No.4 ought to have been
declared elected in seat No.4 as per the judgment
reported in 2006(1) GLH Pg. 489."
7. Mr. Vaghela, in support of his aforesaid submissions,
seeks to rely upon a Division Bench decision of this High
Court in the case of Udaybhai Nareshbhai Vora vs.
State Election Officer & Ors., reported in 2006 (1)
GLH 489.
8. In such circumstances referred to above, Mr. Vaghela
prays that there being merit in his writ application the
same may be allowed and the relief prayed for in the writ
application may be granted in favour of the writ applicant.
Submissions on behalf of the State Election
Commission:-
9. Ms. Roopal Patel, the learned counsel appearing for
the State Election Commission has filed her submissions in
writing. The submissions of Ms. Patel are in two parts. The
submissions dated 02.09.2021 are as under;
"1. Petitioner challenges by way of the instant
petition, election result for Ward No. 5 of Rajpipla
Nagarpalika, whereby, Respondent No. 4 has been
declared elected against ST category. As per the
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
petitioner, this cannot be done, as, Respondent No.
4-Sapanaben had filled in the Nomination Form for
General category. And since, petitioner had filled in
the Nomination Form for ST category and since, he
had secured highest votes amongst ST candidates,
he should be declared elected against this seat.
2. In this context, relevant Rules of The Gujarat
Municipalities (Conduct of Election) Rules, 1994 are
quoted herein below for ready reference:
"Rule-7-(1) Every nomination shall be made in Form
3.
(2) Every Nomination shall contain full particulars of
the name, age, sex, and address of the candidate, be
subscribed by two persons-one as the proposer and
the other as the seconder-who are entitled to vote at
the election to that ward and whose names are
included in the List of voters for that ward and must
bear the signature of the candidates in token of his
willingness to be so nominated...
(8) A candidate who desires to be considered as a
Scheduled Caste or Scheduled Tribe or other
Backward Class candidate, as the case may be, shall
submit, along with his nomination paper, an
authenticated Xerox copy of a caste/tribe/class
certificate issued by a competent authority
prescribed by the State Government to issue such
certificates;..."
"Rule-9: Classification of validly nominated
Candidates.- The validly nominated candidates shall
be classified into the following categories, namely:-
......
(c) "Scheduled Tribe woman candidate" one who is
entitled to be elected against a seat reserved for a
general woman or a seat reserved for Scheduled
Tribe woman or a seat reserved for Scheduled Tribe
and an unreserved seat but none other,....."
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
"Rule-10. List of validly nominated candidates.-
Immediately after all the nomination papers have
been scrutinized and decisions accepting or rejecting
the same have been recorded, a list of validly
nominated candidates along with their classification
shall be prepared by the returning officer in Form 4
and displayed for the information of the public in his
office."
3. It is submitted that, Rule-7 provides regarding
Nomination Form. Sub-Rule-8 thereof provides that,
who desires to considered against SC/ST/OBC shall
have to submit caste/tribe/class certificate. Petitioner
and respondent No. 4 both had whilst filling the Form
3 and more particularly Part-V thereof had
mentioned that they belong to ST category. Not only
that, but, had also submitted ST certificates. Such
certificate submitted by the respondent No. 4 is
annexed hereto and marked as Annexure-R/1. Since,
respondent No. 4 had stated her to be ST in Part-V of
the Form 3 and since, she had submitted ST
certificate along with Nomination Form, as per Sub-
Rule 8 of Rule 7, she had desired to considered
against ST seat. Nowhere in the Rules or Nomination
Form it has been provided to state as to against
which seat candidate want to contest.
4. Rule 9 provides as classification of validly
nominated candidates. This classification has to be
made on the basis of candidate's entitlement to be
elected against seat (s). Meaning thereby, if
candidate is entitled to be elected against a seat
reserved for general woman and also against
unreserved seat, she shall be classified as "General
Woman Candidate". Likewise, if candidate is entitled
to be elected against a seat reserved for general
woman; ST woman, ST and an unreserved seat, she
shall be classified as "Scheduled Tribe Woman
Candidate". As per Rule-7 (8), since, respondent No.4
had desired to be considered as ST candidate, she
shall be entitled to be elected against general
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
woman or ST woman or ST or unreserved seat.
Hence, as per Rule-9 (c) she shall be classified as
"Scheduled Tribe Woman Candidate".
5. For the present case, Part-I and Part-V of Form-3
(Nomination Form) would be relevant. Part-I is
soliciting name of the Municipality, ward number,
candidate's name etc., but, nowhere it is asking for
to mention about against which seat candidature has
been offered for. In Part-V of the Form, inter alia
declaration has to be provided of Caste/Tribe if
applicable. Here the respondent No. 4 declared her
as ST category. She also submitted ST certificate in
support of this. As per Rule-7 (8) read with Rule-9 (c),
she shall be classified as "Scheduled Tribe Woman
Candidate" and accordingly, she was classified and
listed in Form-4 under Rule-10 (List of validly
nominated candidate). So far the petitioner is
concerned, he had also submitted ST certificate and
hence, he would be entitled to be elected against
seat reserved for ST as well as against General seat.
Accordingly, he shall be classified as "Scheduled
Tribe Male Candidate" under Rule-9 (f). This Form
has to be displayed in the office for information of
the public and accordingly published on 15.02.2021.
As such, it was in the knowledge of the petitioner
that, respondent No. 4's name was classified for ST
category. No objection was taken by him at that
time. Annexed hereto and marked as Annexure-R/2
are the copies of extract of the said Rules as referred
to hereinabove as well as Part-I and V of Form 3.
Annexed hereto and marked as Annexure-R/3 is a
copy of the said Form 4 displayed on 15.02.2021. It
is submitted that, neither Rules prescribe nor any
Part of the Nomination Form 3 ask for to mention as
to against which seat one is offering the candidature
for. Candidate has to offer candidature for particular
ward of the Municipality. He cannot offer candidature
for particular seat. Like, one can ask for visa for
U.S.A. and not for New Jersey. In the Nomination
Form evenif somebody suggest the seat, cannot be
kept in view. Instead, as per statutory Rule-9,
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
classification has to be made of the candidates. If the
contention of the petitioner is accepted, one can be
declared/not declared against the particular seat
mentioned by him/her only and would not be entitled
for any other seat as per the entitlement provided in
Rule-9. Proposition canvassed by the petitioner
would make the Rule-9 otiose. For the clarification
purpose of Election Officer, a Circular dated
30.11.1995 had also been issued by the respondent
No. 1 which is annexed hereto and marked as
Annexure-R/4.
6. Respondent No. 1 had declared Schedule of seats
which is annexed with the petition at Annexure-B,
page-19. For Ward No. 5 of Rajpipla Nagarpalika, 4
seats were reserved which were for SC Woman,
General Woman, ST & General. As per the
entitlement to be elected in view of Rule-9 (c),
barring 1st seat meant for SC Woman, respondent
No. 4 would be entitled to be elected against rest of
the three seats viz. General Woman, ST and General.
First seat was reserved for SC Woman. Vanitaben
Chauhan secured highest votes amongst SC Woman,
she was declared elected against that seat. Against
2nd seat of General Woman, Sahanurbibi was
declared elected as she secured highest votes i.e.
1054, whereas, respondent No. 4 had secured 887
declared elected against this seat, as, she secured
highest votes. Petitioner had secured 776 votes only.
Annexed hereto and marked as Annexure-R/5 is a
document prepared to demonstrate as how
candidates came to be declared elected.
7. There cannot be any dispute to the proposition
laid down in the decision of this Hon'ble Court cited
by the petitioner. It is submitted that, however, the
said decision would reinforce the submissions of the
respondent No. 1. The decision lay down that, claim
of eligibility for a reserved seat does not exclude the
claim of the candidate for a general seat. It is an
additional claim/entitlement. It is submitted that, as
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
per Rule-7 (8) read with Rule-9, respondent No. 4 is
entitled for general woman, ST woman, ST and
General. Over and above ST, she is entitled to be
elected against these categories. She was considered
against General Woman, but, she did not secured
highest votes there-against. She then was considered
for 3rd seat of ST, where, she secured highest votes
and therefore, declared to be elected. Taking into
consideration said Rules, Forms appended thereto,
Nomination Forms filled in by the petitioner and
respondent No. 4 and the votes secured by them,
respondent No. 4 has been rightly declared to be
elected which cannot be faulted for. The petitioner's
claim as such is misconceived, erroneous and
opposed to the statutory provisions.
In the premises aforesaid, aforementioned petition
has no merits, required to be dismissed forthwith. "
9.1 The submissions dated 06.09.2021 read as under;
1. Written submission on behalf of the respondent
No.1 were tendered on 03.09.2021 with the kind
permission of this Hon'ble Court. Few legal
submissions were left out through inadvertence,
which are as follows:
2. Relevant to be noted that, Rajpipla Nagarpalika is
situated in Narmada District which is predominated
by Tribals. This Nagarpalika is having 7 wards.
Present case pertains to ward No. 5. Total 4 seats of
this ward was allotted respectively for SC woman,
General Woman, ST and General (schedule declared
reserving the seat is at Annexure-B, Pg. 19 to the
petition). As has been explained in the written
submission tendered on 03.09.2021, as per Rule 7
(8) read with Rule 9, how to classify the candidates
for their entitlement to seat. Important is that,
candidature is not for any particular seat, but, is for
the entire ward. It is further submitted that, Rule-63
of the Rules provide declaration of the result. Extract
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
of Rule-63 is annexed hereto and marked as
Annexure-R/6. Annexed hereto and marked as
Annexure-R/7 is a copy of the explanation provided
in the Handbook meant for Election Officer, describes
how the results shall be declared. As such, Election
Officer shall firstly declare the result of women seats.
Out of these two seats of woman, firstly result of SC/
ST/OBC woman seat shall be declared from amongst
the women who has secured highest votes and is
eligible to be elected against such seat. Then result
of 2nd women seat shall be declared from amongst
the woman who is eligible to be elected against such
women seat and who has secured the highest votes.
Thereafter, result of 3rd seat of SC/ST/OBC/General
shall be declared from amongst the rest of the
candidates who secures highest votes and is eligible
for that seat. Likewise, result of the 4th seat shall be
declared. In the present case, seats were reserved
respectively for SC, General Woman, ST and General.
Accordingly, in view of the said Rule-63 read in
conjunction with Rules-7 (8) as well as Rule-9, as per
the classification of candidate and as per votes
secured by the candidates result of ward No. 5 of
Rajpipla Nagarpalika is declared which is legal and in
consonance with the statutory Rules.
3. It is submitted that, on declaration being made by
the candidate that he/she belongs to SC/ST/OBC and
produces SC/ST/OBC certificate along with
Nomination Form, he/she has to be classified as 'SC
Woman', 'ST Woman', "OBC Woman', 'SC Male' etc.
A candidate who does not state as to belonging to
any of the reserved category and not producing
reserved category certificate, has to be classified as
'General Woman', General Male'. Then comes their
entitlement to be elected against the seat (s). As per
the classification carried out under Rule-9, as per
Rule 63, election result shall be declared. It is
submitted that, if the view canvassed by the
petitioner has to be accepted, not only it would not
be in consonance with the Rules, but, consequently
would entail large ramification in the entire State.
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
Very example of the instant case, since, respondent
No. 4 has produced Tribe certificate, as per Rule 9,
she shall be classified as 'Scheduled Tribe Woman'
and her entitlement to be elected would be against
seat reserved for General Woman or seat reserved
for ST Woman or seat reserved for ST or against
unreserved seat. Here, first seat is for SC Woman
against which she was not entitled to be elected. 2nd
seat is for General Woman, where-against she has
entitlement, but, she did not secured highest votes.
3rd seat is for ST, where-against also she has the
entitlement. She secures highest votes for this seat
and as such, declared elected against this seat. She
is also entitled to be elected against 4th seat meant
for General, but, she already has been declared
elected against ST seat and therefore shall not be
considered further. If suppose, respondent No. 4 had
not been declared elected against ST seat though
secures highest votes qua this category, she would
rightly grieve that, since I have declared myself as ST
candidate and has produced Tribe Certificate, I must
be classified as 'Scheduled Tribe Woman' as per
Rule-9 and I am entitled to be elected against ST
woman, ST, General Woman, General. She would
claim that, though I have not secured highest votes
amongst General woman, still my further entitlement
for the ST seat can't be overlooked/ignored.
4. Petitioner who has mentioned in his Nomination
Form that, he belongs to ST category and he also had
appended ST certificate therewith. He shall be
classified as 'ST Male Candidate'. His entitlement to
be elected against ST seat and an unreserved seat.
He did not secured highest votes amongst ST
candidates, but, he still be entitled to be elected
against an unreserved seat. He could not secured
highest votes from amongst the rest of the
candidates also and hence, could not be declared
elected. Instant petition has been filed by the
petitioner by taking undue advantage of the fact
that, merely because in Part-I of Form 3 it has been
mentioned by the respondent No. 4 that, she is
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
offering her candidature for General Woman Seat. If
the Part-I is perused, candidate has to fill in merely a
name of Municipality. Part-I do not ask for category
of seat. In such, eventuality, even if somebody
specify something not asked for, would have no
relevance, resultantly, has to be ignored. I reiterate
that, election would be of a ward and not of a seat.
Since, petitioner could not secure votes to be elected
against either ST or unreserved seat has projected
the things which would suit to his purpose. Election
officer has proceeded in consonance with the Rules
right from scrutiny of Nomination Forms, making
classification of candidates and ultimate declaration
of election result.
In the premises aforesaid, aforementioned petition
has no merits, required to be dismissed forthwith. "
10. Having regard to the aforesaid submissions
canvassed on behalf of the State Election Commission, Ms.
Patel the learned counsel prays that there being no merit
in the present writ application, the same may be rejected.
Submissions on behalf of the Returning Officer:-
11. Mr. Ayan Patel, the learned AGP appearing for the
Deputy Collector and Returning Officer, submitted that
there is no merit in the case put forward by the writ
applicant. Mr. Patel seeks to rely upon the following
averments made in the affidavit-in-reply filed on behalf of
the Respondent No.3;
"6. I state that I had been appointed as the
Returning Officer for the general elections ward-5 of
the Rajpipla Nagarpalika. I state that the Respondent
No.4-Sapnaben was declared the successful
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
candidate under the category of Scheduled Tribe. On
16.02.2021, the list of candidates for ward-5 of
Rajpipla Nagarpalika was published wherein the
Respondent No.4 was listed under the said category.
At this stage and even at the time of declaration of
results, no candidate raised any objection to the
category of the Respondent No.4.
7. During the course of carrying out my duty as
Returning Officer, I have acted strictly in accordance
with the guidelines laid down in the Returning Officer
Handbook and in terms of the Gujarat Municipalities
Act, 1963 as well as the Gujarat Municipalities
(Conduct of Election) Rules, 1994 ("Rules").
8. I state that Annexure-95, Chapter-19 (19.10) of
the Returning Officer Handbook reproduces
notification dated 30.11.1995 (Copy at Annexure-I
hereto) of the State Election Commission. As per the
said notification, it was stated that a question was
being raised by multiple Returning Officers if it would
be permissible for a candidate to refer to the
category sought to be contended for in the election
form. It was stated that for Nagarpalika elections,
candidates do not contest under any particular
category at the time of election. Therefore, if a
candidate inadvertently mentions a category in the
election form, the same must be ignored. Further, at
the stage of examining the election form, this aspect
must be ignored. It was further stated that during the
course of declaring results, it must be considered as
to which category the candidates fall under in terms
of Rule 9 of the Rules. Hence, even if a candidate
seeks to contest under a particular category, the
same is not permissible and any reference to a
category in the election form is required to be
ignored.
9. In terms of the Final Result dated 02.03.2021
(Copy at Annexure-2 hereto) the Respondent No.4
secured 887 votes as compared to the 776 votes of
the Petitioner. Seats were reserved for 4 categories
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
of persons viz. (1) Scheduled Caste (Woman) (2)
General (Woman) (3) Scheduled Tribe and (4)
General. As the Respondent No.4 had the highest of
votes in the category of (3) Scheduled Tribe, she
came to be declared as a successful candidate.
10. I deny that there is any mala fide or ulterior
motive on the part of the undersigned. I state that
the undersigned has simply acted in terms of the
notification dated 30l.11.1995 (i.e. Annexure-95
Chapter 19-19.10 of the Returning Officer Handbook)
whereby any category referred to in the election
form is required to be ignored. I further state that
upon a perusal of the Final Result dated 02.03.2021,
it is evident that the Petitioner and the Respondent
No.4 belong to the very same party. Hence, there
cannot be said to be any bias, political or otherwise.
11. In view of the legal position and facts and
circumstances, as described hereinabove, it becomes
evident that the present Petition, being devoid of
merits, no relief, as prayed for, be granted in favour
of the Petitioners and against the Respondents and
the present petition be dismissed."
12. In such circumstances, referred to above, Mr. Patel,
the learned AGP prays that there being no merit in the
present writ application, the same may be rejected.
13. At this stage, we must also record the preliminary
objection raised on behalf of both, the State Election
Commission as well as the Returning Officer as regards
the maintainability of the present writ application. Ms.
Roopal Patel and Mr. Ayan Patel would submit that in view
of the bar of Article 243ZG of the Constitution of India and
also in view of Section 14 of the Act, 1963, the writ
applicant could not have invoked the writ jurisdiction of
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this High Court under Article 226 of the Constitution of
India. Both the learned counsel submitted that the validity
of any election of a Councillor, if brought in question, can
be determined only in accordance with the provisions of
Section 14 of the Act, 1963.
ANALYSIS
14. Having heard the learned counsel appearing for the
parties and having gone through the materials on record,
two questions fall for our consideration;
(i) Whether the present writ application is maintainable in
view of the bar of Article 243ZG of the Constitution of
India and Section 14 of the Act, 1963?
(ii) Whether the declaration of the result could be said to
be illegal and contrary to the provisions of the Act, 1963
and the Rules, 1994?
15. We must first deal with the preliminary objection as
regards the maintainability of the present writ application.
16. Article 243ZG reads thus;
"243ZG:- Bar to interference by courts in
electoral matters:- Notwithstanding anything in
this Constitution,
(a) the validity of any law relating to the
delimitation of constituencies or the allotment of
seats to such constituencies, made or purporting to
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be made under article 243ZA shall not be called in
question in any court;
(b)no election to any Municipality shall be called in
question expect 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"
17. Section 14 of the Act, 1963 reads as under;
"14. Determination of validity of elections. - (1)
If the validity of any election of a councillor is
brought in question by any person qualified to vote
at the election to which such question refers or by
any candidate for such election such person may, at
any time within fifteen days after the date of
declaration of the result of the election, apply to the
District Court of the district within which the election
has been or should have been held, for the
determination of such question."
18. We are of the view that the provisions of Article
243ZG of the Constitution does not constitute an absolute
bar to the powers of judicial review vested in the
Constitutional Courts under Article 226 of the Constitution
of India. It is altogether different to say that the Writ
Court, in its discretion, may decline to entertain the writ
application seeking to challenge the conduct of the
election, more particularly, the result of the election,
having regard to the fact that Section 14 of the Act, 1963
provides for determination of validity of elections.
However, it is difficult for us to take the view that the
provisions of Article 243ZG read with Section 14 of the
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Act, 1963, should be construed to impose an absolute
embargo on the exercise of jurisdiction under Article 226
of the Constitution of India.
19 If the jurisdiction of the Constitutional Courts is also
barred, then the power of judicial review, which is the
basic feature of the Constitution, is deemed to have been
taken away. There is a difference between the 'power of
judicial review' and 'judicial power'. The 'power of judicial
review' is specially conferred on the Constitutional Courts,
i.e. the High Courts and the Supreme Court under Articles
226 and 32 of the Constitution, respectively. The other
Courts and the Tribunals created under the different
enactments are conferred with 'judicial powers'. Such
Courts and the Tribunals created under different
enactments cannot exercise the 'power of judicial review'.
20. In a catena of decisions, the Supreme Court had the
occasion to consider the scope and ambit of the 'judicial
review'. Patanjali Sastri, C.J. speaking for the Court in the
State of Madras vs. V.G. Row, reported in AIR 1952 SC
196, observed (at p.199 of AIR):
"Before proceeding to consider this question, we
think it right to point out what is sometimes
overlooked, that our Constitution contains express
provision for judicial review of legislation as to its
conformity with the Constitution, unlike in America
where the Supreme Court has assumed extensive
powers of reviewing legislative acts under cover of
the widely interpreted 'due process' clause in the
Fifth and Fourteenth Amendments. If, then, the
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Courts in this country face upto such important and
none too easy task, it is not out of any desire to tilt at
legislative authority in a crusader's spirit, but in
discharge of a duty plainly laid upon them by the
Constitution."
21. While considering the validity of the Constitution (25 th
Amendment) Act, 1971, the theory of basic structure was
propounded by the Supreme Court in Kesavananda
Bharathi vs. State of Kerala, reported in (1973) 4 SCC
225. Majority of the Judges held that the separation of
powers of the legislature, executive and judiciary is one of
the basic features of the Constitution. J.M.Shelat and
A.N.Grover, JJ., held:
"The function of interpretation of the Constitution
being thus assigned to the judicial power of the
State, the question whether a subject of law is within
the ambit of one or more powers of the legislature,
conferred by the Constitution would always be the
question of interpretation by the Constitution."
22. The two learned Judges observed that the power of
judicial review is one of the important features of the
Federal Constitution. They also quoted with approval the
opinion of Patanjali Sastri, C.J., in V.G. Row's case (supra)
that judicial review is undertaken by the Courts not out of
any desire to tilt as legislative authority in a crusader's
spirit, but in discharge of a duty plainly laid down therein
by the Constitution. P.Jaganmohan Reddy, J. observed as
under:
"A sovereign democratic republic, Parliamentary
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democracy, the three organs of the State, certainly in
my view constitute the basic structure."
23. Hans Raj Khanna J., observed:
"Our Constitution postulates Rule of law in the sense
of supremacy of the Constitution and the Jaws as
opposed to arbitrariness. The vesting of power of
exclusion of judicial review in a legislature, including
State Legislature, contemplated by Article 31-C, in.
my opinion, strikes at the basic structure of the
Constitution."
24. By reading these individual Judgments in Keshavanand
Bharathi's case (supra), the consensus of opinion that has
emerged is that the judicial review is one of the basic
features of the Constitution and that the Parliament has
no power to amend the basic structure or feature of the
Constitution.
25. The constitutional validity of the Constitution (39 th
Amendment) Act, 1975, fell for the consideration of the
Supreme Court in Smt. Indira Nehru Gandhi vs. Raj Narain,
reported in AIR 1975 SC 2299. Majority of the Judges
declared clause (4) of Article 329-A as introduced by the
Constitution 39th Amendment Act of 1975 as
unconstitutional. Khanna, J., dealing with the contention of
the learned Solicitor General, that according to the
judgment in Keshavananda Bharathi's case (supra) no
fundamental right is part of the basic structure of the
Constitution, by quoting the observations in
Keshavananda Bharthi's case (supra), held that the power
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of amendment under Article 368 does not include the
power to abrogate the Constitution nor does it include the
power to alter the basic structure or framework of the
Constitution. As regards the 'basic feature' of the
Constitution, K.K.Mathew, J., observed:
"This Constitution has a basic structure comprising
the three organs of the Republic: the Executive, the
Legislature, and the Judiciary ........... Neither of these
three separate organs of the Republic can take over
the function assigned to the other. This is the basic
structure or scheme of the system of Government of
the Republic laid down in this Constitution whose
identity cannot, according to the majority view in
Keshavananda's case, be changed even by resorting
to Art. 368."
26. Y.V.Chandrachud, J., held:
"Basic structure', by the majority Judgment is not a
part of the fundamental rights nor indeed a provision
of the Constitution. The theory of basic structure is
woven out of the conspectus of the Constitution and
the amending power is subject to it because it is a
Constituent power."
27. The Constitution (42nd Amendment) Act, 1976, which
added Clauses (4) and (5) to Article 368 placing
Constitutional amendments beyond the purview of the
judicial review, was challenged in the Minerva Mills Ltd. vs.
Union of India, reported in AIR 1980 SC 1789. The
Constitution Bench declared the new clauses (4) and (5)
Articles 368 as unconstitutional holding:
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"A limited amending power is one of the basic
features of the Constitution and therefore the
limitations on the power cannot be destroyed. In
other words, Parliament cannot; under Art. 368
expand its amending power so as to acquire for itself
the right to repeal or abrogate the Constitution or to
destroy its basic and essential features."
28. When the Constitutionality of sub-clause (d) of clause
(2) of Article 323-A of the Constitution fell for the
consideration, a Full Bench of the Andhra Pradesh High
Court in S.Harinath v. State of H.P., (1993) 2 Andh LT
471, considering the decisions referred to above, held:
"From a close examination of the views expressed by
the majority in Keshavananda (2) (supra) we get a
clear picture that the power of Parliament under Art.
368 to amend the Constitution does not extend to
abrogating the basic features of the Constitution.
What are integral to the Constitution cannot be
destroyed by Parliament in exercise of its constituent
power under Art. 368. Even though the language
employed in Art. 368 is wide, the nature of the
constituent power confined in Parliament is subject
to the aforesaid limitations. It is, therefore, followed
that not being a sovereign body with unlimited
powers, whatever powers are confided in it must be
exercised within the specified limitations. What it can
do in exercise of its constituent power, it cannot do
in exercise of legislative power. The power of judicial
review is a basic feature of the Constitution and an
integral part of our Constitutional system. The
independence of the Constitutional Courts, the
Supreme Court and the High Courts, is assured by
the Constitution and the power of judicial review is
vested in them."
29. The Supreme Court, in the case of Harnek Singh
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vs. Charan Singh & Ors., reported in (2005) 8 SCC 383
in context of Article 243-O of the Constitution, observed
that having regard to the constitutional mandate, all
election disputes must be determined only by way of an
election petition, yet this by itself, may not per se bar the
Judicial Review, which is the basic structure of the
Constitution. It is altogether a different thing to say that
ordinarily such jurisdiction would not be exercised. There
is a fine distinction between "Writ Petition per se not
maintainable" and "Writ Petition relating to election
ordinarily should not be entertained"
30. In K. Venkatachalam (supra), the Supreme Court,
after discussing all its earlier decisions on the question of
maintainability of a writ-application under Article 226 of
the Constitution of India vis-a-vis Article 329(b) thereof,
concluded as a statement of law in paragraph-27 among
others as follows :
"Various decisions of this Court, which have been
referred to by the appellant that jurisdiction of the
High Court under Article 226 is barred challenging
the election of a returned candidate and which we
have noted above, do not appear to apply to the
case of the appellant now before us. Article 226 of
the Constitution is couched in widest possible term
and unless there is clear bar to jurisdiction of the
High Court its powers under Article 226 of the
Constitution can be exercised when there is any act
which is against any provision of law or violative of
constitutional provisions and when recourse cannot
be had to the provisions of the Act for the
appropriate relief. In circumstances like the present
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one bar of Article 329(b) will not come into play when
case falls under Articles 191 and 193 and whole of
the election process is over. Consider the case where
the person elected is not a citizen of India. Would the
Court allow a foreign citizen to sit and vote in the
Legislative Assembly and not exercise jurisdiction
under Article 226 of the Constitution?"
31. In view of the aforesaid, we are of the view that we
should look into the pivotal issue involved in the present
litigation and decide the same on its own merits.
32. Before we advert to the rival submissions canvassed
on either side, we must look into few relevant provisions
of the Rules, 1994.
33. The Government of Gujarat, in exercise of the powers
conferred by sub-section (1) of Section 277 of the Act read
with sub-section (5) of Section 6 of the Act, 1963, framed
the rules called the Gujarat Municipalities (Conduct of
Election) Rules, 1994. Part-II of the rules relates to the
election process. Rule 7 is with respect to the nomination
papers. Rule 7 reads thus;
"7. Nomination paper:- (1) Every nomination shall be
made in Form 3.
(2) Every nomination shall contain full particulars of
the name, age, sex, and address of the candidate, be
subscribed by two persons- one as the proposer and
the other as the seconder who are entitled to vote at
the election to that ward and whose names are
included in the List of Voters for that ward and must
bear the signature of the candidate in token of his
willingness to be so nominated;
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Provided that a candidate not set up by a recognized
political party shall not be deemed to be duly
nominated for election from a ward unless the
nomination paper is subscribed by ten proposers and
ten seconders being electors of that ward.
(3) Subject to the reservation in favour of
Scheduled Castes, Scheduled Tribes, Other Backward
Classes and Women, a person who is entitled to vote
in the election to a municipality and whose name is
included in the municipal electoral roll, can contend
from any ward;
(4) More than one nomination paper may be filled
on behalf of a candidate by different votes, but the
total nomination papers filled on behalf of a
candidate shall not exceed four per ward. In case
more than four nomination are presented, only the
first four presented shall be considered and the rest
summarily rejected;
(4-A) A candidate shall be prohibited from the
nomination for election from more than two wards of
a municipality;
(5) A voter cannot nominate, either as a proposer
or seconder, more than one candidate Where a voter
has signed on nomination, as a proposer or seconder,
for more than one candidate, all such nomination
other than the first one received by the returning
officer shall be declared invalid.
(6) Every nomination paper subscribed and signed
as aforesaid must be delivered to the returning
officer in person by the candidate or any of the
proposer or seconder during office hours but before
three O' clock in the afternoon of the days fixed for
the nomination of candidates at the place specified
in this behalf in the notice issued by the returning
officer under rule 6;
Provided that the nomination paper shall be
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delivered to the returning officer on a working day
and not on a public holiday.
(7) The returning officer shall, on receiving a
nomination paper, either in the nomination paper its
serial number and shall sign thereon a certificate
stating the date on which and the time at which the
nomination paper has been delivered to him and
shall as soon as may be thereafter cause to be
affixed in some conspicuous place in his office, a
notice of the nomination containing description
similar to those contained in nomination paper, of
the candidate, of the proposer and of the seconder.
(8) A candidate who desires to be considered as a
Scheduled Caste or Scheduled Tribe or Other
Backward Class candidate, as the case may be, shall
submit, along with his nomination paper, an
authenticated Xerox copy of a caste/tribe/class
certificate issued by a competent authority
prescribed by the State Government to issue such
certificate.
In case of any dispute regarding the status of a
candidate being considered eligible to be elected
against a reserved seat arises at the time of scrutiny
of nominations, the returning officer may ask the
candidate to produce the original of the certificate
referred to above and or any other documents in
support of the claim of the candidate. After scrutiny
of such evidence, the returning officer shall declare
whether the candidate's claim for being eligible to be
elected from a reserved seat is accepted or not. If
the claim is not accepted the candidate shall be
considered a general candidate and in that case, he
shall deposit or cause to be deposited immediately
the deficit in deposit as required under rule 17."
34. Rule 8 provides for the scrutiny of nomination
papers. Rule 8 reads thus;
"8. Scrutiny of Nomination Papers:- on the date
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and time fixed for scrutiny of nomination papers
under rule 5, the returning officer shall examine the
nomination papers and decide all objections which
may be made to any nomination and may, either on
such objections or on his own motion, after such
summary enquiry, if any, as he thinks necessary,
declare invalid any nomination on any of the
following grounds;
(I) that the candidate is not enrolled in the
municipal electoral roll as a voter of the municipal
borough;
(ii) that the candidate has not made or caused to
be made the deposit referred to in rule 17;
(iii) that the candidate has not attained the
minimum age required for being elected a councillor;
-
(iv) that the candidate is disqualified under any
provisions of the Act from being the councillor;
(v) that [any proposer or seconder] has not been
enrolled as a voter of the ward for which the
nomination has been filled;
(vi) that the signature of the candidate or [any
proposer or the seconder] on the nomination is not
genuine;
(vii) that the signature of (any proposer or the
seconder) on the nomination paper has been filled on
another nomination paper which has been delivered
to the returning officer to this nomination paper."
35. Rule 9 provides for the classification of validly
nominated candidates. Rule 9 reads thus;
"Classification of validly nominated
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candidates.- The validity nominated candidates
shall be classified into the following categories,
namely:-
(a) "general woman candidate" one who is entitled to
be elected against a seat reserved for a general
woman and an unreserved seat but none other;
(b) "Scheduled Caste woman candidate" one who is
entitled to be elected against a seat reserved for a
general woman or a seat reserved for Scheduled
Casts Woman or a seat reserved for Scheduled
Castes and an unreserved seat but none other;
(c) "Scheduled Tribe woman candidate" one who is
entitled to be elected against a seat reserved for a
general woman or a seat reserved for Scheduled
Tribe woman or a seat reserved for Scheduled Tribe
and an unreserved seat but none other;
(d) "Other Backward Class woman candidate" one
who is entitled to be elected against a seat reserved
for a general woman or a seat reserved for Other
Backward Class woman or a seat reserved for Other
Backward Classes and an unreserved seat but none
other; '
(e) "Scheduled Caste male candidate" one who is
entitled to be elected against a seat reserved for
Scheduled Castes and an unreserved seat but none
other;
(f) "Scheduled Tribe male candidate" one who is
entitled to be elected against a seat reserved for
Scheduled Tribes and an unreserved seat but none
other;
(g) "Other Backward Classes male candidate" one
who is entitled to be elected against a seat reserved
for Other Backward Classes and an unreserved seat
but none other;
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(h) "general male candidate" one who is entitled to
be elected against an unreserved seat but none
other;"
36. Rule 10 is with respect to the preparation of the list
of validly nominated candidates. Rule 10 reads thus;
"10. List of validly nominated candidate:-
Immediately after all the nomination papers have
been scrutinized and decisions accepting or rejecting
the same have been recorded, a list of validly
nominated candidates along with their classification
shall be prepared by the returning officer in Form 4
and displayed for the information of the public in his
office."
37. Rule 17 is with respect to the deposit and refunds.
Rule 17 reads thus;
"17. Deposit and refund:- (1) On or before the last
date for filing nominations fixed under sub rule (2) of
rule 5, each candidate shall deposit or cause to be
deposited with the returning officer the sum of [two
thousand rupees] in cash, and no candidate shall be
deemed to be duly nominated unless such deposit
has been made:
Provided that where the candidate is a woman or
belongs to the Scheduled Castes or Scheduled Tribes
or Other Backward Classes the amount of deposit
shall be reduced to two hundred and fifty rupees.
Provided further that where a candidate's claim of
belonging to Scheduled Castes or Scheduled Tribes
or Other Backward Classes has been rejected and he
is declared to be a general candidate under clause
(ii) of sub -rule (8) of rule 7, the candidate shall
deposit or cause to be deposited immediately with
the returning officer, in cash, the deficit amount of
rupees [one thousand rupees].
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(2) The deposit shall be returned if-
(i) the candidate is declared or is deemed to be duly
elected; or
(ii) the candidate withdraws his nominations as per
the provisions of these rules; or
(iii) the nomination of the candidate is declared
invalid, or
(iv) the candidate dies before the commencement of
the poll; or
(v) the candidate fails to be elected but secures valid
votes in excess of the number specified in sub-rule 3.
(3) If a candidate is not elected, and if the number of
valid votes polled by him does not exceed one sixth
of the total, number of valid votes polled divided by
the number of councillors to be elected in the ward,
his ward shall be forfeited [and shall be a part of
municipal fund].
(4) The deposit shall, if it is not forfeited, be returned
as soon as may be after the declaration of the result
of the election under rule 63:
Provided that if a candidate is duly nominated at a
general election in more than one ward, not more
than one of the deposits made by him or on his
behalf shall be returned and the rest shall be
forfeited: .
Provided further that where the candidate dies
before the deposit is returned it shall be returned to
his legal heirs."
38. Rule 61 provides for preparation of the result-sheet.
Rule 61 reads thus;
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"61. Preparation of result sheet:- After the
completion of the counting, the Returning Officer
shall prepare in Form 21 the result sheet containing:-
(i) the names of the candidates for whom valid
votes have been given;
(ii) number of valid votes given for each candidate;
(iii) number of votes declared invalid;
(iv) number of tendered votes give."
39. In the last we must look into Rule 63 which is with
respect to the declaration of results. Rule 63 reads thus;
"63. Declaration of results.- (1) When the counting
of votes has been completed, the returning officer
shall proceed to declare the result of the election in
the following manner.
(2) He shall first decide the result of the seat
reserved for women by declaring elected to that seat
the woman who has secured the greatest number of
valid votes amongst women eligible to be elected to
that seat.
(3) He shall then decide the result of the seat
reserved, if any, for Scheduled Castes or Scheduled
Tribes or Other Backward Classes in that order by
declaring elected to that seat the person, other than
the person who has already been declared elected to
the seat reserved for women, who has secured the
highest number of valid votes amongst persons
eligible to be elected to that reserved seat.
(4) He shall then decide the result of the unreserved
seat or seats as the case may be, by declaring
elected the person or, where there are more than
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one such seat, the persons not exceeding the
number of such seats, other than the persons who
have already been declared elected to the reserved
seats, who has or have secured the highest number
of valid votes."
40. We should now look into the Form-3 as prescribed
under Rule 7 of the rules referred to above. Form-3 is as
under;
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41. At this stage, we look into the Form-3 filled up by the
respondent No.4;
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42. Thus, the Form-3 as above filled up by the
respondent No.4 would indicate that in Part-I, referred to
above, she stated that she proposed to contest the
election from ward No.5 on a seat reserved for woman of
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general category. It appears that the Returning Officer has
also written something in this regard on the form as is
evident on bare perusal of the same. Part-V of the Form-3
filled up by the respondent No.4 also assumes significance
because she declared that she is a member of the
scheduled tribe and also attached a certificate in that
regard issued by the Mamlatdar, Nandod dated
09.11.2015. It is not in dispute that the respondent No.4
was set up as a candidate by the political party, namely,
the Bhartiya Janta Party (BJP).
43. We now proceed to look into the Form-4 as
prescribed under Rule 10 of the rules, referred to above.
Form-4 is as under;
FORM-4
(SEE RULE 10)
LIST OF VALIDLY NOMINATED CANDIDATES
Election to the Municipality of .....................................
Ward Number.......................... Ward Name..................
Serial Name of the Address Party Category
Number Candidates affiliation of the
candidate
1,
2,
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3.
4.
Etc.
Place : ........................
Date : ........................ Returning Officer
44. In the last, we look into Form-21 as prescribed under
Rule 61 of the Rules. The same is as under;
"FORM- 21
(SEE RULE 61)
FINAL RESULT SHEET
Election to the Municipality of ...........................................
Ward Number ................... Ward Name ..........................
Serial Number Name of the Party affiliation Number of
Candidate votes polled
.................. ..................... ....................... ....................
................... ..................... ....................... ....................
................... ..................... ....................... .....................
................... .................... ....................... ....................
Total number of valid votes .....................
Total number of rejected votes .....................
Total number of tendered votes .....................
Total number of votes .....................
I hereby declare, after following the procedure prescribed
in Rule 63, the following candidates duly elected.
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1. Shrimati .................................... to the seat
reserved for general woman/Scheduled Castes
woman/Scheduled Tribes woman/Backward Classes
woman.
2. Shri/Shrimati ............................. to the seat reserved
for Scheduled Castes / Scheduled Tribes / Backward
Classes / Unreserved seat.
3. Shri / Shrimati......................... to the unreserved
seat.
Date: ..................... Returning Officer."
Scheme of the entire election process as prescribed
under the Election Rules, 1994;
45. The provisions of Rule 7 of the Rules, 1994 provide
for the definition of a valid nomination paper. The
provisions of Rule 7(1) prescribes that every nomination
paper shall be made in the Form-3, referred to above. The
provisions of Sub-rule (8) of Rule 7 prescribes that a
candidate who desires to be considered as a Scheduled
Caste or Scheduled Tribe or Backward Class candidate
shall submit, along with the nomination paper, an
authenticated Xerox copy of the caste/tribe/class
certificate issued by the competent authority. Accordingly,
Part-V has been inserted in the Form-3, whereby a
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
candidate is under an obligation to declare his/her caste.
Thus, in order to claim a right to contest over a reserved
seat, the candidate is required to declare his/her caste in
accordance with the provisions of sub-rule (8) of Rule 7 of
the Rules.
Neither the provisions of Rule 7 nor the contents of
the Form-3 requires or mandates that the candidate
should mention the classification (woman/SC/ST/OBC) in
the Form-3 in order to file a valid nomination paper.
46. The provisions of Rule 9 provide for the classification
of the validly nominated candidates and the provisions of
Rule 10 provide for the list of validly nominated
candidates. The provisions of Rule 9(a) prescribes for the
classification of a General Woman Candidate. A "General
Woman Candidate" is one who is entitled to be elected
against a seat reserved for general woman and
unreserved seat but none other. Further, the provisions of
Rule 9(c) prescribe for the classification of Scheduled
Tribe Woman Candidate. The "Scheduled Tribe Woman
Candidate", is one who is entitled to be elected against a
seat reserved for a general woman or a seat reserved for
scheduled tribe woman or a seat reserved for scheduled
tribe and an unreserved seat but none other.
The provisions of Rule 9 prescribe for the
classification of candidates and such classification is
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
relatable to the candidature only. It is required to be
noted that in no manner, the provisions of Rule 9 binds a
candidate's claim to a particular reserved or general seat.
47. The provisions of Rule 10 provide for the list of validly
nominated candidates. The provisions of this rule casts a
statutory duty upon the Returning Officer to assign a
particular classification in the Form-4 which is displayed
for the information of the public in his office.
48. In the case on hand, the Form-4 filled in is as under;
FORM-4
(SEE RULE 10)
LIST OF VALIDLY NOMINATED CANDIDATES
Election to the Municipality of Rajpipla
Ward No.5 Ward Name..................
Sr. Name of the Address Party Category
No. Candidates affiliation of the
candidate
1. Jayshriben Kamleshbhai Nr. Ramji Bhartiya Scheduled
Solanki Temple, Janta Party Caste Woman
Solanki vas,
Rajpipla
2. Pragneshkumar Darbar Road, Bhartiya Genral
Mahendrakumar Rami Rajpipla Janta Party
3. Maheshbhai Bhikhbhai Nr. Bhartiya Scheduled
Vasava Nandeshwar Janta Party Tribe
Mahadev
Temple,
Rajpipla
4. Muntazirkhan Sindhivad, Bhartiya Backward
Mehbubkhan Shaikh Rajpipla Rashtriya Class
Congress
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
5. Vanitaben Kamalbhai Rajpipla Bhartiya Scheduled
Chauhan Rashtriya Caste
Congress Woman
6. Shahenurbibi West Bhartiya Backward
Shahrukhkhan Pathan Rajpipla-3, Rashtriya Class Woman
Congress
7. Sapnaben Rabari Bhartiya Scheduled
Rameshbhai Vasava Fadiya, Janta Party Tribe Woman
Sindhivas,
Rajpipla
8. Sanjaybhai Kadujibhai Rajendra Bhartiya Scheduled
Vasava Nagar Rashtriya Tribe
Society, Congress
Rajpipla
9. Mohammed Hanif Safi Arab Tekra, BTP Backward
Mohammed Fakir Navi Nagri, Class
Rajpipla
10. Ganeshbhai Sindhivad, Independent Scheduled
Ravishankarbhai Rabari Tribe
Vasava Fadiyu,
Rajpipla
11. Chimanbhai Behind Independent Scheduled
Punamchand Vasava Nandeshwar Tribe
Mahadev
Temple,
Rajpipla
12. Chetanbhai Sanubhai Arab Tekra, Independent Scheduled
Vasava Rajpipla Tribe
13. Maqbulsafi Kaderbhai Arab Tekra, Independent Backward
Mansuri Nr. Noorani Class
Masjid,
Rajpipla
14. Maniyaben Haridas Ranchhod Independent General
Solanki Temple, Woman
Rajpipla.
15. Manishaben Haridas Valmiki Vas, Independent Scheduled
Solanki Rajpipla-4 Caste Woman
16. Mohammed Irfan Kadivad-2, Independent Backward
Abdulraheman Arab West Class
Rajpipla-4
17. Yogeshkumar Ramanlal Laxmi Independent Backward
Limchiya Narayan Class
Temple,
Darbar Road,
Rajpipla
18. Rekhaben Amitkumar Darbar Road, Independent General
Mali East Rajpipla Woman
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
19. Vijaybhai Vithalbhai Motamalivad, Independent General
Rami Janipayga,
Rajpipla
20. Shabanabanu Ayazbhai Kodivad, Independent Backward
Arab Rajpipla Class Woman
21. Saltanatbegum Sindhivad, Independent Backward
Mohammed Hanif Rajpipla Class Woman
Baluchi
22. Sahilbhai Aiyubbhai Sindhivad, Independent Backward
Shaikh Rajpipla Class
23. Sikanderkha Arab Tekra, Independent Backward
Mahebubkha Ghori Navi Nagri, Class
Rajpipla
24. Hussain Salim Fakir Kolivad, Independent Backward
Rajpipla Class.
49. A conjoint reading of the rules 7, 9 and 10
respectively provide that the candidate is not required to
prescribe the classification of his/her nomination in the
nomination form and that the classification made by the
Returning Officer in the Form-4 is final in nature. Further,
a candidate desirous of having a classification of the
scheduled tribe/scheduled tribe woman must disclose the
details in Part-V of Form-3 in compliance with the
provisions of sub-rule (8) of Rule 7. However, the
classification, if any, claimed by the candidate is required
to be ignored at this stage. But the classification assigned
to a candidate in Form-4 has some significance and on the
basis of such classification made in Form-4 , the candidate
can be said to be eligible to be elected on a particular
reserved seat.
50. It is worth mentioning at this stage that the
provisions of Rule 17 of the rules provide for the deposit
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
and refund. A general candidate is required to deposit a
sum of Rs.2,000/- at the time of filling the nomination,
while a candidate belonging to woman scheduled caste or
schedule tribe or other backward class shall have to
deposit a sum of Rs.250/- at the time of filling of the
nomination.
51. The provisions of Rule 16 requires that the Returning
Officer shall prepare a list of contesting candidates in
Form-6 which includes the category of the candidate as
well.
52. The provisions of Rule 29 of the rules prescribe the
form of ballot paper which says that every ballot paper
shall have a counterfoil attached thereto and that such
counterfoil shall be in Form-11. A perusal of the Form-11
would reveal that the ballot paper mentions the serial
number, name and symbol of the candidate only and that
the classification of the candidate is not required to be
reflected in the ballot paper. Form-11 reads thus;
"FORM-11
(SEE RULE 29)
FORM OF BALLOT PAPER
COUNTER FOIL
Municipality of ................... Year of Election ...............
Ward No......... Serial No. of Ballot Paper ......................
Polling Station No................... Polling Station
Name....................... in Ward .................... Signature of
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
T.I. of the Elector........................
OUTER FOIL
Serial No. Name and symbol of candidate
Name of Municipality ............... Serial No. of Ballot Paper.........
Year of Election ......................
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
Serial Number Name and Symbol of Candidate
53. The provisions of Rule 37 of the rules prescribe the
number of votes to be given by a voter. The said rule
provides that every voter is entitled to give as many votes
as equivalent to the councillors to be elected at such an
election for such ward. Thus, the voting right has a nexus
with the number of seats in a ward but there is no nexus
between the classification of seats and/or candidate and
the votes to be given by the voter. In other words, a voter
is not required to cast his votes on the basis of the
reservation and that the voter may cast multiple votes
based on the number of seats in a particular ward
irrespective of the classification of candidates.
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
54. In light of the aforesaid, the provisions of Rule 61
assumes significance. Rule 61 provides that the Returning
Officer shall prepare the result-sheet in Form-21. A perusal
of Form-21 would indicate that the result-sheet contain
the particulars of serial number, name of the candidate,
party affiliation and the number of votes polled by the
candidate.
55. The provisions of Rule 63 of the rule provide for the
declaration of results. At the time of deciding the result of
a seat reserved for a particular category, the eligibility to
be elected to that seat is required to be considered and
such eligibility relates to the classification as provided
under the provisions of Rule 9 and as made in accordance
with the provisions of Rule 10 by the Returning Officer in
the prescribed Form-4.
In accordance with the provisions of Rule 63 of the
Rules, the Returning Officer shall first proceed to declare
the result of a seat reserved for woman, thereafter, the
result of the seats reserved for the scheduled caste,
scheduled tribe and other backward class in that order
and, thereafter, he shall declare the result of the
unreserved seats.
56. At this stage, we may reproduce the declaration as
under;
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
Sr. No. Name of Candidates Affiliated to the Total votes
Political Party received
Solanki Party
Mahendrakumar Rami Party
Vasava Party
(Writ Applicant)
Shaikh Rashtriya
Congress
Chauhan Rashtriya
Congress
6. Shahenurbibi Shahrukhkhan Bhartiya 1054
Pathan Rashtriya
Congress
Vasava Party
(Respondent No.4)
Vasava Rashtriya
Congress
Mohammed Fakir PartY
57. The conjoint reading of the above referred provisions
of Rules 7, 9 , 10 and 63 respectively of the rules would
indicate that a candidate classified by the Returning
Officer in Form-4 as the "Scheduled Tribe Woman
Candidate" stands a chance first to be elected as a
general woman then on a seat reserved for scheduled
tribe woman, thereafter, on a seat reserved for scheduled
tribe and, thereafter, on an unreserved seat based on the
higher number of votes secured by her in Form-21.
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
58. However, the candidate classified in Form-4 as a
general woman candidate by the Returning Officer under
Rule 10 either for want of production of caste certificate
in Part-V of the Form-3 or upon any adverse adjudication
as prescribed under sub-rule (8) of Rule 7 at the time of
scrutiny of the nomination paper, may stand a chance to
be first elected against the seat reserved for general
woman and, thereafter, against an unreserved seat as
per the conjoint reading of the Rules 7, 9, 10 and 63
respectively of the Rules.
What exactly happened in the case on hand before
and after the candidates came to be classified in
Form-4
59. Having explained the entire scheme as regards the
conduct of election as envisaged under the Rules, we now
proceed to consider whether the respondent No.4,
namely, Sapnaben Rameshbhai Vasava was treated as a
general woman candidate or a scheduled tribe candidate.
60. Prima facie, it appears that the respondent No.4 was
desirous to contest the election on a seat reserved for
general woman. This is evident from the Form-3 filled up
by the respondent No.4. The entire Form-3 filled up by the
respondent No.4 has been incorporated in this judgment.
However, although the respondent No.4 might have
intended to contest the election on a seat reserved for
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
woman in general category, yet having attached the caste
certificate along with her nomination form as envisaged in
Part-V of the Form-3, the Returning Officer classified the
respondent No.4 in the category of scheduled tribe. This is
evident from Form-4 which has been incorporated in Para-
48 of this judgment. It is in such circumstances that
ultimately the final result came to be declared in
accordance with Rule 63 of the Rules. We proceed, for the
time being, on the footing or rather trying to understand
what would have been the position if the respondent No.4
would not have attached or produced the caste certificate
along with her nomination form. If the respondent No.4
would not have produced the caste certificate as
envisaged in Part-V of the Form-3, then the Returning
Officer could not have treated her as a candidate falling in
the category of scheduled tribe but she would have been
placed in the category of general woman. If she would
have been placed in the category of general woman, then
she could have been first considered for being declared
elected on a seat reserved for general woman depending
on the number of votes secured by her and, thereafter,
against any unreserved seat. This is exactly what we have
explained in Para-58 of this judgment as above. However,
as noted above, the respondent No.4 was placed in the
category of scheduled tribe candidate and having secured
the highest number of votes in that category, she came to
be declared as elected on the seat reserved for scheduled
tribe.
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
61. The aforesaid takes us now in the last to consider the
Division Bench decision of this Court, upon which, strong
reliance has been placed by Mr. Vaghela, the learned
counsel appearing for the writ applicant. In Udaybhai
Nareshbhai Vora (Supra), the challenge was to the
election of one of the respondents as a Councillor in the
Mehsana Municipality on the unreserved seat. The second
part of the challenge was to the constitutional validity of
Rule 9(a) and Rule 63(4) of the Rules, 1994. In the said
case, the elections to ward No.8 of the Mehsana
Municipality were held on 17.12.2005 and the results were
declared on 13.12.2005. Three councillors were to be
elected from the ward No.8. Out of three seats, one was
reserved for woman, another seat reserved for the SEBC
candidates and the third seat was a general seat, i.e, it
was not reserved for any category. When the results
came to be declared, the votes secured by the different
candidates were as under;
1. Chiragbhai Gajendrakumar Barot 1408 votes
2. Nilaben Bharat Kumar Harde 1270 votes
3. Kulsumbibi Ibrahimbhai (respondent No.3) 1268 votes
4. Udaybhai Nareshbhai Vora (petitioner) 1193 votes
5. Yusufbhai Ibrahimbhai Motisara 1099 votes
7. Jaydevbhai Babulal Barot 1097 votes
62. In accordance with Rule 63 of the Rules, the Election
Officer first declared Smt. Nilaben Bharatkumar Harde as
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
elected to the seat reserved for woman. This was done
under sub-rule (2) of Rule 63. The Election Officer,
thereafter, declared Chiragbhai Gajendrakumar Barot as
elected to the seat reserved for the SEBC candidate. This
was done under sub-rule (3) of Rule 63. The only seat
thereafter remained was the unreserved seat attracting
sub-rule (4) of Rule 63. After excluding the candidates
who were declared elected to the seat reserved for
woman and to the seat reserved for the SEBC candidates,
it was found that the respondent No.3-Kulsumbibi
Ibrahimbhai had secured the highest number of valid
votes being 1268. The Election Officer accordingly
declared the respondent No.3 as elected to the
unreserved seat.
63. The writ applicant challenged the aforesaid
declaration of the respondent No.3 having been elected to
the unreserved seat on the ground that the respondent
No.3 having contested as a woman candidate and another
woman candidate (Nilaben Bharatkumar Harde) having
secured more votes-1270 as against 1268 obtained by the
respondent No.3, the respondent No.3 could not,
thereafter, have put forward her claim for the unreserved
seat. A Coordinate Bench of this Court, while negativing
such contention canvassed on behalf of the writ applicant
as noted above, first considered Rule 9 of the Rules. The
Coordinate Bench, thereafter, considered the decision of
the Supreme Court in the case of V.V. Giri vs. D.S. Dora,
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
reported in AIR 1959 SC 1318. In the said case, the
Supreme Court laid down that the reservation of a seat in
a double-member constituency cannot affect the basic
position that the constituency is one and for returning
representatives to the concerned body, it is the same joint
electorate that goes to the poll and that the claim of
eligibility for the reserved seat would not exclude the
claim for the general seat. In other words, the Supreme
Court took the view that it would be an additional claim
and both the claims have to be decided on the basis that
there is one election from the double-member
constituency. Ultimately, the Coordinate Bench concluded
in Para-13 as under;
"13. The provisions of Rule 9 as well as Rule 63
embody the same principle as was underlying
Sections 54(4) and 55 of the Representation of
People Act, 1951. Hence, a woman candidate who
offers herself for a seat reserved for women does not
lose her claim to be considered for an unreserved
seat. As mentioned in the decision of the Apex Court
in the VV Giri case, it would be obvious that once the
candidates declared elected to the reserved seats
(one seat reserved for women and another seat
reserved for SEBC in the instant case) are excluded,
the unserved seat has to go to the candidate who
has secured the maximum number of votes amongst
the other candidates. In the facts of the present
case, respondent No. 3 admittedly secured the
maximum number of votes (and definitely more than
the votes secured by the present petitioner) from out
of the candidates who remained after Nilaben Harde
was declared elected to the seat reserved for women
and Chiragbhai Barot to the seat reserved for SEBC
candidates. The declaration of the result by the
Election officer is, therefore, in accordance with the
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
provisions of Rules 9 and 63 of the Election Rules."
64. The aforesaid decision rendered by this Court has
been relied upon by Mr. Vaghela to make good his case
that in the case on hand, the declaration of the result
could not be said to be in accordance with Rule 63 of the
Rules, referred to above. We are afraid, we are not in a
position to agree with such submission of Mr. Vaghela. We
have explained what would have been the position had
the respondent No.4 been treated as a candidate
classified as general woman candidate and what would be
the position having treated the respondent No.4 as a
candidate classified in the category of scheduled tribe.
65. We are of the view that in the case on hand, the
declaration of the result could be said to be in accordance
with Rule 63 of the Rules. The Election Officer first
declared the result of the seat reserved for scheduled
caste woman; thereafter the Election Officer declared the
result of the seat reserved for woman of general category;
thereafter for the seat reserved for scheduled tribe and in
the last, result of the unreserved seat was declared. The
writ applicant and the respondent No.4 both were
classified as scheduled tribe candidate for the third
reserved seat and the respondent No.4 having secured
887 votes as against 776 votes secured by the writ
applicant, she was declared as elected on the third
reserved seat for the scheduled tribe. If the respondent
No.4 would not have been classified as a scheduled tribe
C/SCA/6267/2021 JUDGMENT DATED: 14/09/2021
candidate, then she would have been put or classified as
general woman candidate and in such circumstances, she
could not have been declared as elected because a lady
by name Shahenurbibi Shahrukhkhan Pathan secured
1054 votes against 887 votes secured by the respondent
No.4-Sapnaben Rameshbhai Vasava.
66. In the overall view of the matter, we are convinced
that no case is made out by the writ applicant for grant of
any relief.
67. In the result, this writ application fails and is hereby
rejected.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
Vahid
