Kamini Gopalsingh Solanki vs Election Officer And City Deputy ...
2022 Latest Caselaw 7591 Guj

    C/SCA/11062/2021                            JUDGMENT DATED: 06/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 11062 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                          Sd/-
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1    Whether Reporters of Local Papers may be allowed                No
     to see the judgment ?

2    To be referred to the Reporter or not ?                         No

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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                   KAMINI GOPALSINGH SOLANKI
                             Versus
     ELECTION OFFICER AND CITY DEPUTY COLLECTOR (PASCHIM)
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Appearance:
MR VC VAGHELA WITH MR ANIL H PATEL(7832) for the Petitioner(s) No. 1
HEENA D RANA(8349) for the Respondent(s) No. 2
MR DILIP B RANA(691) for the Respondent(s) No. 2
MS NIDHI VYAS AGP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                            Date : 06/09/2022
                            ORAL JUDGMENT

By the present petition, the petitioner has prayed for

the following reliefs:

"7B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside

C/SCA/11062/2021 JUDGMENT DATED: 06/09/2022

the order dated 28.7.2021 passed by respondent No.1 rejecting the nomination of the petitioner and further be pleased to hold that nomination paper of the petitioner is valid and allow the petitioner to contest the election of Gujarat State Cooperative Housing Finance Corporation Limited.

C. Pending admission, hearing and final disposal of the petition, YOUR LORDSHIPS be pleased to stay the operation, implementation and execution of order dated 28.7.2021 rejecting the nomination of the petitioner and direct the respondent No.1 to add the name of the petitioner as validly nominated candidate in the list of contesting candidates and permit the petitioner to contest the election;"

2. It is the case of the petitioner that she had filed

nomination for the election to be held for the Managing

Committee of the Gujarat State Cooperative Housing

Finance Corporation Limited with a specified cooperative

society registered under the provisions of Gujarat

Cooperative Societies Act, 1961. It is submitted that the

election programme came to be declared by the respondent

No.1 on 13.7.2021 and accordingly, the nomination was

filed on 16.7.2021. The scrutiny of the nomination was to be

held on 27.7.2021 and the list of valid candidature was to

be published on 27.7.2021. The list of final contesting

C/SCA/11062/2021 JUDGMENT DATED: 06/09/2022

candidates was to be published on 3.8.2021 and voting if

necessary was to be held on 13.8.2021. The petitioner

submits that she filed the nomination paper as per the

programme. That on the date of the scrutiny, objection was

raised by the respondent No.2 herein in respect of the

petitioner's nomination stating that the petitioner was not a

member of any society and also not a member of the

Managing Committee and therefore, the nomination of the

petitioner ought to be rejected. The petitioner also filed her

reply to the said objection. The respondent No.1 - Election

Officer rejected the nomination of the petitioner by order

dated 28.7.2021 for the reasons mentioned therein.

Aggrieved, the petitioner has filed the present writ

petition.

3. Mr. V.C.Vaghela, learned advocate appearing for the

petitioner submitted that the order of the Election Officer

was illegal and bad in law since the reasons mentioned in

the order are extraneous and could not have been taken

into consideration for the purpose of deciding the validity of

C/SCA/11062/2021 JUDGMENT DATED: 06/09/2022

the nomination. It was submitted that the petitioner's name

had appeared in the preliminary voters' list and no objection

was raised at that point of time. The name of the petitioner

has come in the final voters' list also. Once the petitioner

was included in the final voters' list, the respondent No.1

could not have questioned the membership of the petitioner

and therefore, the rejection of the nomination was without

jurisdiction and against the provisions of the Law. He

submits that due to rejection of the nomination of the

petitioner, the respondent No.2 has been declared elected

unopposed and therefore also, the order of the respondent

No.1 be interfered with.

4. Mr. D.B.Rana, learned advocate for the respondent

No.2, submits that the elections have been held and the

results have been declared on 3.8.2021 where the petitioner

has been declared as elected. He further submits that the

petitioner has committed a fraud with the record of the

Housing Society by showing that the petitioner has become

a member on 3.12.2021 by transfer of property and on the

C/SCA/11062/2021 JUDGMENT DATED: 06/09/2022

very same day, the petitioner has also become a member of

the Managing Committee of the society. He submits that the

petitioner was not holding any membership in the

Paramhansh Cooperative Housing Society as per the audit

report and also not holding any post in the Managing

Committee. He further submits that no evidence was placed

on record to show that any procedure was followed before

entering the name of the petitioner in the record of the

society. He submits that the documents produced by the

petitioner in her favour are sham and bogus and perpetuate

fraud. He submits that the Election Officer has rightly

decided the objection raised by the respondent No.2 while

rejecting the nomination of the petitioner. He finally

submitted that since the results of the election have been

declared on 13.8.2021 and the new Managing Committee

has also taken over in respect of the Gujarat State

Cooperative Housing Finance Corporation Limited, the only

appropriate remedy is by way of election petition. He further

submitted that this Court in catena of decisions has held

that in such circumstances, appropriate remedy was an

C/SCA/11062/2021 JUDGMENT DATED: 06/09/2022

election petition under Section 145U of the Gujarat

Cooperative Societies Act. He, therefore, submits that this

Court may dismiss the present writ petition.

5. Heard learned counsel for the parties and perused the

documents on record.

6. A perusal of the prayers prayed for in the writ petition

shows that the relief prayed for by the petitioner is that to

hold that her nomination paper is valid and to allow her to

contest the election of the Gujarat State Cooperative

Housing Finance Corporation Limited. No other relief is

prayed for. In the present case, the election to the Managing

Committee has already been held and is over as on

13.8.2021 and the new Managing Committee has also taken

over the charge and functioning since last about one year.

7. This Court in catena of decisions has held that the

powers under Article 226 of the Constitution of India would

not be exercised by the Court when there is a remedy in

C/SCA/11062/2021 JUDGMENT DATED: 06/09/2022

filing the election petition which has to be exhausted only

after the elections are over. In the present case, the

elections are already over on 13.8.2021. Section 145U of the

Act read with Rule 82 of the Rules of 1982 provides for

grounds for declaring the election as void. Rule 82(c)

provides for a specific ground for declaring the election to be

void in case of improper acceptance or rejection of the

nomination paper. It is well settled that in normal course,

the High Court will not interfere with the election process to

interrupt, interfere or stall such process and that all

election disputes arising in the middle of the elections shall

be postponed for their resolution until after the elections are

over, to be dealt with in accordance with the machinery

provided under the relevant statute.

8. In view of the well settled legal position, this Court is of

the opinion that no interference is called for in the present

writ petition. The petitioner is at liberty to pursue her

remedy under the statute by way of filing an election

petition. It is made clear that this Court has not expressed

C/SCA/11062/2021 JUDGMENT DATED: 06/09/2022

any opinion on the merits of the impugned decision of the

Election Officer. The petitioner is at liberty to raise all the

contentions available to her in law. The present writ petition

is accordingly dismissed. Notice is discharged.

Sd/-

(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN