Vasantbhai Vadilal Joshi vs Laxmikuvar Virendrasinh Parmar
2021 Latest Caselaw 15108 Guj

     C/SCA/7941/2021                               JUDGMENT DATED: 27/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7941 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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                           VASANTBHAI VADILAL JOSHI
                                    Versus
                       LAXMIKUVAR VIRENDRASINH PARMAR
==========================================================
Appearance:
MR. YOGESH RAVANI, LD. SR. ADVOCATE WITH MR. SIDDHANT R
SHAH(8722) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2,6,7
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 8
NOTICE SERVED(4) for the Respondent(s) No. 3,4,5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 27/09/2021

                               ORAL JUDGMENT

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

C/SCA/7941/2021 JUDGMENT DATED: 27/09/2021

1. Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done, but must also seem to be done; similarly, elections should not only be fairly and properly held, but also seem to be so conducted as to inspire confidence in the mind of the electors that everything has been done aboveboard and has been done to ensure free elections.' This was observed by the Supreme Court in the case of Rampakavi Rayappa Belagali Vs. B.D. Jatti & Others, reported in 1970 (3) SCC 147. In the said case, the Supreme Court further held :

"It will be a sad day in the history of our country that the police and the Government Officers create even an impression that they are interfering for the benefit of one or the other candidate. This is particularly so if a candidate is holding an important position or assignment like respondent No.1, at the material time was Minister in the State."

2. This is exactly the allegation of the writ applicant in the case on hand, who has alleged that in the matter of election to the post of President & Vice President of the Satlasana Taluka Panchayat, the total Government Machinery including the police interfered for the benefit of one particular political party.

3. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the

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following reliefs;

"(A) Your Lordships may be pleased to issue a writ of certiorari and/or appropriate writ, order or direction in the nature of certiorari and be pleased to quash and set aside the notification dated 17.03.2021 for the election of President and Vice President of Satlasana Taluka Panchayat shown at Annexure 'A' treating it as void, malafide, tainted and contrary to law and further directing the respondents herein to conduct fresh election for the post of President and Vice President of Satlasana Taluka Panchayat;

(B) Pending admission final hearing and disposal of the present petition, Your Lordships may be pleased to stay the execution, implementation and operation of the notification dated 17.03.2021 for the election of the President and Vice President of Satlasana Taluka Panchayat shown at Annexure 'A' to this petition, and further direct to hold the fresh election of President and Vice president;

(C ) Your Lordships may be pleased to grant such other and further relief as may be deemed just and proper by this Hon'ble Court."

4. The facts, giving rise to this writ application, may be summarized as under;

4.1 The writ applicant is one of the members of the Satlasana Taluka Panchayat, District: Mehsana. It appears that the writ applicant was elected as a member of the Satlasana Taluka Panchayat from the Umri-14 seat of the Satlasana Taluka.

4.2 It appears that , in all, eight candidates nominated by the "X" Party came to be elected. Seven candidates

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nominated by the "Y" Party came to be elected and the writ applicant herein was elected as an independent candidate.

4.3 The election for the post of President and Vice President respectively of the Satlasana Taluka Panchayat was scheduled to be held on 17.03.2021.

4.4 We may pick up the rest of the facts from the averments made in the memorandum of the writ application. The same are as under;

"4.2 The petitioner was informed by many persons of the BJP that if he does not support the candidate sponsored by the BJP he would be tender hook of some criminal proceedings. The petitioner did not intend to change loyalty to the party otherwise also it would incur disqualification. The petitioner was apprehending that some illegal method might be adopted to prevent him from participating in the election of President and Vice President, he had written the representation to the District Collector, Mehsana that he may not be prevented from participating in election process. The copy of the representation sent to the District Collector, Mehsana and copy thereof dated 15/03/2021 sent to various authorities is annexed herewith and marked as Annexure "D" to the present petition. Even the leader of the opposition party of Gujarat State Shri Paresh Dhanani had also written to the DGP of Gujarat State that since officers of LCB, Mehsana Police are going to the place of present petitioner he may not be implicated in some criminal case with a view to prevent the participation of present petitioner in the election process of President and Vice President of Taluka Panchayat, Satlasana. Copy

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of the letter written by the leader of opposition party to the DGP dated 16/03/2021 is annexed herewith and marked as Annexure "E" to the present petition.

4.3 The petitioner states that on 16/03/2021 at Satlasana Police Station the F.I.R. was registered under section 409 of IPC making allegation that present petitioner who was working as Secretary of the Moti Bhalu Dudh Utpadak Sahakari Mandli in the year 2012-2013 there was a due of Rs.1,08,000/- hence, one Bhikhiba Chaudhari has registered the complaint stating that she had been the president for 3 months of such society. Copy of the complaint dated 16/03/2021 is annexed herewith and marked as Annexure "F" to the present petition. The bare reading of the complaint Annexure "E" shows that there is no explanation about the delay in registering the complaint. The complaint is not filed by any authorised person nor, it shows that any such objection was raised in audit or by Registrar, Cooperative Society. The complaint was prima facie could be evaluated as malafide complaint with an ulterior motive to prevent the present petitioner from participating in the election process of Satlasana Taluka Panchayat.

4.4 The petitioner did not get copy of such complaint. On next day i.e. on 17/03/2021, since meeting was arranged at 12 O' clock, along with other party workers the petitioner had reached at office of the Taluka Panchayat, Satlasana at 11.30. To the surprise of the petitioner and his supporters, nearly 250 to 300 police personnel were present outside the Taluka Panchayat Office. These police officers were under the leadership of Dy. S.P. Mr. Valand, LCB PSI Mr. Zala and Satlasna PSI Mr. R. S. Devre. The petitioner and his supporters were informed that petitioner is required to be arrested immediately. The petitioner and his political workers requested to allow the petitioner to attend the election process and after completing the election

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meeting he had shown willingness to surrender to the police authority. In spite of humble and genuine request of the petitioner, the petitioner was picked up manually by number of police constables and taken away from the place of election meeting. Under such circumstances, the petitioner could not participate in the election process. The petitioner was granted bail by the District Court, Mehsana on 23/03/2021. Copy of the bail order passed in Misc. Criminal Application No.158/2021 dated 23/03/2021 is annexed hereto and marked as Annexure "G" to the present petition. The entire incident which had occurred outside the office of Taluka Panchayat, Satlasana is video recorded showing the presence of nearly 200-300 police officers and picking up petitioner by the mob, by refusing to accept the request of the petitioner and other political workers to allow him to participate in the election process. The present petitioner herein as and when required shall produce and relay on the compact disc at the time of hearing."

4.5 Thus, it appears from the aforesaid that on the date of the election, at the last minute, the writ applicant was picked up by the police on the premise that he was to be arrested in connection with a First Information Report registered with the Satlasana Police Station for the offence punishable under Section 409 of the Indian Penal Code. The first information is on record. We take notice of the fact that the first information report is dated 16 th March, 2021. The first information report was lodged just one day before the scheduled election. The allegations levelled in the first information report against the writ applicant are for the period between 01.01.2012 and 31.12.2013. Thus, almost after nine years, the first information report came

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to be lodged by one Bhikhiben W/o. Bhikhabhai Hirabhai Chaudhari.

4.6 It appears that as the writ applicant came to be arrested at the last minute, he was not able to cast his vote in the election for the post of President and Vice President of the Panchayat.

4.7 It is the case of the writ applicant that everything was pre-planned. The police machinery was utilized to ensure that the writ applicant is not able to reach up to the Taluka Panchayat Office and cast his vote. It is the case of the writ applicant that this litigation highlights absolute defiance of the democratic process in the election.

4.8 In such circumstances, referred to above, the writ applicant has come up before this Court with the present writ application.

5. Mr. Y.N. Ravani, the learned counsel appearing for the writ applicant vehemently submitted that the facts of the present case are very gross and those speak for themselves. Mr. Ravani invited the attention of this Court to the averments made in the Ground Nos.5 (c) & (d) respectively. The averments read as under;

"(c ) The police authority had acted in malafide manner hence FIR registered on 16.03.2021 was not

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made available online, with a view to see that present petitioner may not be able to approach any judicial forum for any type of protection. Now in view of the various judicial pronouncements consistently all the FIR of all police stations immediately gets updated on the online portal. However, police authority intended to utilise this FIR for creation of artificial majority in the election process of taluka panchayat same was not made available online on 16.03.2021. It is further submitted that the complaint is registered by complainant at Satlasana Police Station before PSI R. S. Devre, however at the Taluka Panchayat office respondent no. 3 i.e. DYSP, respondent no. 4 i.e. PSI of Local Crime Branch remained present with more than 250 staff members, with number of vehicles of police, though they were not investigating officer, nor there was any case of law and order situation and arrested the petitioner by lifting him physically. This aspects shows personal interest of the police authorities to please the party in power. It is creation of artificial majority by gross misuse of the police machineries.

(d ) The petitioner states that in the meeting the Election Officer was immediately informed about the arrest of the present petitioner by other members of the congress party, requesting him not to hold the election. Even the election officer was standing outside the hall where the election process was to be carried out. Therefore, he was personally aware about the arrest of the present petitioner. The provision of rule 11 of Gujarat Taluka and District Panchayats President and Vice President Rules, 1994 empowers the Election Officer to postpone the election and can be adjourned on some other date. However, the election officer did not prefer to adjourn the proceedings. Under such circumstances, the action of the election officer of conducting election is contrary to the free and fair election process. Therefore, the action was contrary to the provision of Rules."

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6. Mr. Ravani would submit that the averments made in the memorandum of the writ application, referred to above, have not been refuted or rebutted in any manner. He further pointed out that only the respondent Nos. 7 and 8 respectively have filed their reply.

7. In such circumstances, referred to above, Mr. Ravani prays that there being merit in his writ application, the same may be allowed and the election for the post of President and Vice President respectively be declared as void, and the District Panchayat may be directed to hold fresh election in accordance with the Gujarat Panchayats (Procedure) Rules, 1997 (for short the "Rules, 1997").

8. On the other hand, this writ application has been vehemently opposed by Mr. V.C. Vaghela, the learned counsel appearing for the respondent Nos.1 and 2 respectively, i.e, the elected president and vice president respectively. According to Mr. Vaghela, his clients are in no way concerned with what has been alleged in the present writ application. Mr. Vaghela would submit that the writ applicant was lawfully arrested as a first information report came to be registered against him. There is nothing suspicious or illegal about the arrest of the writ applicant. Mr. Vaghela would submit that even otherwise, the Presiding Officer could not have cancelled the meeting and postponed it to a future date, more

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particularly, in view of Rule 8 of the Rules, 1997.

9. Mr. Vaghela would submit that his clients came to be duly and validly elected in the election which was conducted by the Presiding Officer in accordance with the Rules, 1997. Mr. Vaghela would submit that even otherwise the writ applicant has no fundamental right to cast his vote. Its merely a statutory right. He would submit that the infringement of such a right would not call for the intervention of this Court in exercise of its extra ordinary jurisdiction under the Constitution.

10. In such circumstances, referred to above, Mr. Vaghela prays that there being no merit in the present writ application, the same be rejected.

11. Ms. Roopal Patel, the learned counsel appearing for the respondent No.8-State Election Commission would submit that the Commission has no role to play in the present litigation. Since the election was for the post of President and Vice President of the Taluka Panchayat and such election being governed by the Rules, 1997, the Commission could not have done anything in the matter. Ms. Patel submitted that what transpired on the date of the election was brought to the notice of the Commission at the earliest, but since Commission has no role to play, it did not deem fit to do anything further in the matter.

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12. Ms. Manisha Luvkumar Shah, the learned Government Pleader appearing for the State-respondents would submit that the arrest of the writ applicant on 17 th March, 2021 was in accordance with law. The first information report was registered against the writ applicant on the previous day, i.e, on 16 th March, 2021 for the offence of criminal misappropriation punishable under Section 409 of the IPC. Ms. Shah would submit that serious allegations have been levelled in the first information report. Once the first information report is registered for a cognizable offence, it is within the powers of the police to arrest the accused named in the first information report. Ms. Shah would submit that the arrest of the writ applicant on 17 th March, 2021 and the election for the post of President and Vice President of the Taluka Panchayat scheduled on the same date, was a fortuitous circumstance. According to Ms. Shah, there is nothing on record to impute any ulterior motive or malafide on the part of any of the respondents. In such circumstances, referred to above, Ms. Shah prays that there being no merit in the present writ application, the same be rejected.

13. Ms. Shah, at this stage, invited the attention of this Court to the averments made in the affidavit-in-reply filed on behalf of the respondent No.7, duly affirmed by one Shri V.M. Prajapati, In-chage District Development Officer, Mehsana District Panchayat, Mehsana. The relevant averments read as under;

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"2. The respondent No.7 most respectfully submits that the State Election Commission, Gujarat State, Gandhinagar declared results of election of Satlasana Taluka Panchayat on 8.3.2021 and a copy thereof is annexed as Annexure-A. It is most respectfully stated that thereafter an order dated 9.3.2021 was passed through which a General Body meeting of Satlasana Taluka Panchayat was called on 17.3.21 for election of the President as well as Vice President of Taluka Panchayat for a period of 2 ½ years as per the provisions of section 64(4) and section 67(2) of Gujarat Panchayat Act, 1993 and a copy of the order dated 9.3.2021 is annexed as Annexure-B. From a kind perusal thereof, it would be clear that the Accounts Officer (Class-I) of Mehsana District Panchayat appointed as Presiding Officer of the meeting of newly elected members of Taluka Panchayat to be held on 17.3.2021 under the provisions of section 63(5) of Gujarat Panchayat Act, 1993.

3. The Respondent No.7 most respectfully submits that accordingly an agenda was issued and all the 16 members of Taluka Panchayat were served with the same and a copy thereof is annexed as Annexurde-C.

4. The respondent No.7 most respectfully submits that a meeting of the Taluka Panchayat for election of President and Vice President was accordingly held on 17.3.2021 as per the schedule and in all 15 members attended the same while the petitioner Mr. Vasantkumar Vadilal Joshi remained absent and a copy of the attendance sheet forwarded by the Taluka Development Officer, Satlasana Taluka Panchayat is annexed as Annexure-D. The respondent No.7 further submits that the Accounts Officer (Class-I) of the Mehsana District Panchayat presided over meeting held on 17.3.2021 and forwarded minutes of the meeting whereby respondent No.1 is declared elected as President while respondent No.2 declared elected as Vice

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President of Taluka Panchayat and a copy thereof is annexed as Annexure-E. From a kind perusal thereof it would be clear that in all 15 members attended an voted in the meeting held for the post of President and Vice President of the Taluka Panchayat. The respondent No.7 most respectfully submits that accordingly the respondent No.1 and 2 are officiating in their respective capacities.

5. In view of the above mentioned facts and circumstances it is crystal clear that the meeting was held according to the schedule declared well in advance by the respondent No.7 as a competent authority. The respondent No.7 most respectfully submits that ao far as the issue of non participation in the meeting by the petitioner as elected member of the Taluka Panchayat as he was picked up by the police constable at 11:30 a.m. on 17.3.2021 while he was approaching office of Taluka Panchayat. It is submitted that as per the record of Taluika Panchayat, and more particularly the minutes of the meeting, a meeting was held as per the schedule.

6. The respondent No.7 most respectfully submits that no complaint or reports were received at his end about the action taken by the police dept. against the petitioner on 17.3.2021 or thereafter. It is submitted that even the Accounts Officer officiating as Presiding Officer of the meeting has also not made any report in that regard on 17.3.2021.

The respondent No.7 most respectfully submits that as per the provisions of Gujarat Panchayat (Procedure) Rules, 1997 a meeting once called cannot be cancelled. The respondent No.7 most respectfully submits that the provisions of Rule 8 in this regards is vitally important. It is submitted that even the provisions of Rule 11,12,13 and 17 of the said Rule are also making the legal position clear about the adjournment of the meeting a copy of extract of the relevant rule is annexed as Annexure- F"

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ANALYSIS

14. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether we should set aside the election on the ground of "corrupt practice" and "abuse of power"?

15. The facts of the case on hand speak for themselves. We take into consideration the following circumstances to indicate that the arrest of the writ applicant was pre- planned and was for a ulterior purpose.

(i) As noted above, eight candidates nominated by "X" political party came to be elected; seven candidates nominated by "Y" political party came to be elected and the writ applicant herein was elected as an independent candidate. The equation is simple. There were, in all, sixteen members on the date of the election entitled to cast their vote to elect the President and Vice President respectively of the Taluka Panchayat. The vote of the writ applicant, being an independent candidate, would have assumed importance. We are saying so because if the writ applicant would have cast vote in favour of the "Y" political party, then the result would have been a tie. Thereafter, the procedure as prescribed under the rules would have to be adopted to declare the final result.

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(ii) The election was scheduled to be held on 17 th March, 2021. The first information report got registered at the Satlasana Police Station just 24 hours before the election, i.e., on 16th March, 2021.

(iii) The election was scheduled to be held at 11:00 O'clock in the morning. As alleged by the writ applicant, he was picked up by the police outside the premises of the Taluka Panchayat Office.

(iv) The writ applicant, after being arrested, was taken to the police station and, thereafter, he came to be released on bail by the Court on the next day. By that time, the election was completed.

(v) The first information report alleging misappropriation has something to do with the period between 2012 and 2013.

(vi) The writ applicant came before this High Court by filing the Special Criminal Application No.4557 of 2021 under Section 482 of the Cr.P.C and prayed for quashing of the first information report. A learned Single Judge of this Court admitted the application and stayed the entire investigation by order dated 14.06.2021.

16. At this stage, we may look into the averments made in Para-4.4 of the writ application. The same reads thus;

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"4.4 The petitioner did not get copy of such complaint. On next day i.e. on 17/03/2021, since meeting was arranged at 12 O' clock, along with other party workers the petitioner had reached at office of the Taluka Panchayat, Satlasana at 11.30. To the surprise of the petitioner and his supporters, nearly 250 to 300 police personnel were present outside the Taluka Panchayat Office. These police officers were under the leadership of Dy. S.P. Mr. Valand, LCB PSI Mr. Zala and Satlasna PSI Mr. R. S. Devre. The petitioner and his supporters were informed that petitioner is required to be arrested immediately. The petitioner and his political workers requested to allow the petitioner to attend the election process and after completing the election meeting he had shown willingness to surrender to the police authority. In spite of humble and genuine request of the petitioner, the petitioner was picked up manually by number of police constables and taken away from the place of election meeting. Under such circumstances, the petitioner could not participate in the election process. The petitioner was granted bail by the District Court, Mehsana on 23/03/2021. Copy of the bail order passed in Misc. Criminal Application No.158/2021 dated 23/03/2021 is annexed hereto and marked as Annexure "G" to the present petition. The entire incident which had occurred outside the office of Taluka Panchayat, Satlasana is video recorded showing the presence of nearly 200-300 police officers and picking up petitioner by the mob, by refusing to accept the request of the petitioner and other political workers to allow him to participate in the election process. The present petitioner herein as and when required shall produce and relay on the compact disc at the time of hearing."

17. The first question that requires consideration at our end is whether on the facts, referred to above, we should undertake the exercise of judicial review and set aside the

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election of the respondents Nos.1 and 2 respectively. We can do no better in answering the question posed by us by referring to a decision of the Supreme Court in the case of Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel, reported in (2006) 8 SCC 200. The relevant paragraphs read thus;

"12. Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bonafide and within the limits of its power. However, the scope of judicial review in Administrative matters has always been a subject matter of debate despite a plethora of case law on the issue. Time and again attempts have been made by the Courts to devise or craft some norms, which may be employed to assess whether an administrative action is justiciable or not. But no uniform rule has been or can be evolved to test the validity of an administrative action or decision because the extent and scope of judicial scrutiny depends upon host of factors, like the nature of the subject matter, the nature of the right affected, the character of the legal and constitutional provisions applicable etc. While appreciating the inherent limitations in exercise of power of judicial review, the judicial quest has been to find and maintain a right and delicate balance between the administrative discretion and the need to remedy alleged unfairness in the exercise of such discretion.

13. Having said so, we may now refer to a few decisions wherein some broad principles of judicial review in the field of administrative law have been evolved.

14. In Council of Civil Service Unions Vs. Minister for the Civil Service , Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality

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(ii) irrationality and (iii) procedural impropriety. While opining that "further development on a case by case basis may not in course of time add further grounds" he added that principle of "proportionality" may be a possible ground for judicial review for adoption in future. Explaining the said three grounds, Lord Diplock said:

By "illegality" he means that the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality" he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice.

15. The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds' for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn. as follows:

"the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could

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ever have come to it. In such a case, again, I think the court can interfere."

16. In State of U.P. & Anr. Vs. Johri Mal , this Court has observed thus:

"28.The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."

17. Recently in Rameshwar Prasad & Ors. (VI) Vs. Union of India & Anr. , wherein a proclamation issued under Article 356 was under challenge, Arijit Pasayat, J. observed thus:

"240. A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.

241. It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation

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to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."

18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision- making process and not the decision.

19. The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:

"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber- stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."

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Quoting Judge Leventhal from Greater Boston Television Corp. Vs. FCC , he further says:

"....the reviewing court must intervene if it "becomes aware# that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."

18. Bearing in mind the aforesaid principles, we are of the view that the case on hand is one of absolute and gross abuse of power. The stage was set to ensure that the writ applicant is not able to reach the Taluka Panchayat Office and participate in the election proceedings. The writ applicant was apprehensive about such high handed action much prior to the date of the election. In such circumstances, he had also sounded the authorities in that regard. However, no heed was paid by any of the authorities.

19. We are not impressed by the argument canvassed on behalf of the respondent No.7 that in view of Rule 8 of the Rules, 1997, the meeting could not have been cancelled. Rule 8 of the Rules, 1997 reads thus;

"Notice of meeting issued not to be cancelled:- No notice of ordinary or a special meeting once to the members shall be cancelled or modified except for the purpose of sending supplementary agenda items."

20. Rule 8, referred to above, cannot be interpreted in the manner as sought to by the respondents.

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21. We are also not impressed by the submission of Mr. Vaghela that since right to cast a vote is not a fundamental right and is a mere statutory right, the writ applicant cannot maintain the present writ application. We are not concerned with the writ applicant's right to vote. We may also not enter into the debate whether a right to vote is a fundamental right or a statutory right. We are concerned with the "Rule of Law".

22. In a democracy governed by the rule of law, under a written Constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and posed to keep even the scales of justice between the citizens and the State. The "Rule of Law" and judicial review are basic features of the Constitution. It means the active process of preventing or remedying what would arouse the sense of justice. That can only be done effectively by granting independence to the judiciary. The preamble to the Constitution mentions that the people have resolved to give to India a sovereign socialist Secular Democratic Republic and to secure to all its citizens justice.

23. As 'Rule of law' is the basic rule of governance of any civilized policy the scheme of the Constitution of India is based upon the concept of rule of law: everyone, whether individually or collectively, is under the supremacy of law. Whoever the person may be, however high he or she is, no one is above law notwithstanding how powerful and how rich he or she may be.

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24. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the courts that the rule of law unfolds its contents and establishes its concept. The maintenance of the dignity of Courts is one of the cardinal principles of rule of law in a democratic set- up. To decide, with a sense of justice, requires that the judiciary should enjoy independence.

25. In the judgment of the Supreme Court in the case of Jyoti Basu vs. Debi Ghosal, 1982 (1) SCC 691, it has been observed in Para-97 as under;

"97. ... Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights, such as right to secure information about the candidate which are conducive to the freedom."

26. Thus, the Supreme Court while highlighting the fine distinction between the right to vote as a constitutional right and the stage of expression of such a right in a free

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and fair manner would amount to a right guaranteed under Article 19(1)(a) of the Constitution, has thus made it clear that such a right of a voter while casting his vote assumes greater significance. As such, casting of vote decides the fate of a country, inasmuch as the ruling of it entrusted in the hands of a set of persons in whose hands, in turn the basic feature of the Constitution, namely the protection of the democratic set up is ultimately invested. Therefore, the Supreme Court has made it clear that even though the right to vote, though ensures under the provisions of the Representation of the People Act, having regard to the fact that such a creation is pursuant to the constitutional mandate as contained in Article 326 of the Constitution, has been elevated to the position of a constitutional right and not merely a statutory right in stricto-sensu.

27. The above decision has made a distinction between a right to vote and the final act of expressing such a right by means of casting a ballot. While a citizen's right to vote has been described as a constitutional right now, it was originally recognised as a mere statutory right. The Supreme Court has now clarified that once a citizen acquires the said constitutional right, the subsequent act of expressing the said right in an Election assumes the character of a fundamental right and thereby attracting Article 19(1)(a) of the Constitution. Therefore, if there is any hurdle faced by a citizen in acquiring his voting right, he will only have the protection and remedies that are

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available in establishing the said constitutional right. When once such a voting right is acquired, thereafter, the casting of the said voting right having been recognised as a fundamental right, should have all the protection and safeguards that are available as provided under Chapter- III of the Constitution. Thereafter, infringement of such a right will certainly call for the intervention of this Court in exercise of its extraordinary jurisdiction under the Constitution.

28. Today, if we turn a blind eye to what has been brought to our notice, tomorrow, the same thing may be repeated with impunity. We don't want such acts in total defiance of the procedural requirement of the democratic process of holding the election to precipitate. At the end of the day, the "Rule of Law" must prevail. The power of judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man. We don't want a common man to lose faith and confidence in the judiciary but rather we should instill confidence and faith by condemning the act and setting it right.

29. In such circumstances, referred to above, this writ application succeeds and is hereby allowed. The election to the post of President and Vice President respectively of the Satlasana Taluka Panchayat is set aside. We direct the Collector to reconvene the general meeting of the Satlasana Taluka Panchayat for the election of the

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President and Vice President respectively afresh within four weeks of the receipt of copy/writ of this order. In the facts and circumstances of the case, there shall be no order as to costs.

30. At this stage, Mr. Vaghela, the learned counsel appearing for the respondents Nos.1 and 2 respectively made a request to stay the operation of this order passed by us today for a period of four weeks to enable his clients to approach the Supreme Court. In view of what has been stated above, we decline to accede to such request.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J)

Vahid