Manojkumar Rupabhai Pandya vs The State Of Gujarat
2024 Latest Caselaw 1206 Guj

Gujarat High Court

Manojkumar Rupabhai Pandya vs The State Of Gujarat on 12 February, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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     C/SCA/20717/2023                              ORDER DATED: 12/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 20717 of 2023

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                        MANOJKUMAR RUPABHAI PANDYA
                                    Versus
                         THE STATE OF GUJARAT & ORS.
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Appearance:
MR NARENDRA L JAIN(5647) for the Petitioner(s) No. 1
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1
MR BHARAT T RAO(697) for the Respondent(s) No. 10,5,6,7,8,9
MR.HEMANG H PARIKH(2628) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 12/02/2024

                                ORAL ORDER

1. By way of present writ-application filed under Article 226 of the Constitution of India the writ-applicant herein has prayed for the following reliefs :-

      "(A)     To admit/allow this petition ;


      (B)      To issue a Writ of mandamus and/or any other order,

writ or direction, to quash and set aside the election of the newly elected 6 members to the committee of the respondent no. 4 completely; OR, alternatively,

(C) To issue a writ of mandamus, directing the respondent 2 to decide the application dated 16.11.2023 submitted by Dr. K. R. Vadalia on behalf of the petitioner and other candidates

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at the earliest and further, stay the operation of the election of the newly elected 6 members till the time the application submitted by the petitioner to the respondent no. 2 is decided;

(CA) To issue a Writ of mandamus, directing the respondent no. 2 to decide the application dated 04.12.2023 submitted by the petitioner at the earliest and further, stay the election of the newly elected 6 members till the time of the application submitted by the petitioner to the respondent no. 2 is decided by the competent authority;

(D) To pass any other and further orders that may be deemed fit and proper to this Hon 'ble Court."

2. Heard Mr. Narendra L. Jain, the learned advocate appearing for the writ-applicant, Ms. Shruti Pathak, the learned AGP appearing for the respondent No.1 and Mr. Bharat T. Rao, the learned advocate appearing for the respondents No.5 to 10.

3. Mr. Jain, the learned advocate appearing for the writ- applicant submitted that the writ-applicant herein seeks to challenge the election process of the Gujarat State Pharmacy Council whereby illegality, favouritism, arbitrariness and corrupt practice are adopted and administered by some of the candidates and their supporters which has vitiated the pillars

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of the free and fair election and ethos of secret ballot.

3.1 It was further submitted that the writ-applicant herein seeks indulgence of issuance of appropriate directions upon the respondent No.1 authority to take necessary steps under the laws.

3.2 Mr. Jain, the learned advocate placed reliance on the Notification dated 2.8.2023 issued by the respondent No.1. Placing reliance on the same, it was submitted that there is ambiguity in the issuance of the said notification wherein the said Notification No.GSPC/ELE/30/8506/2023 is issued pursuant to the provisions of Rule 10 of the Bombay State Pharmacy Council Rules, 1953 and Maharashtra State Pharmacy Council Rules, 1969. It was submitted that the ambiguity lies since issuance of the aforesaid notification by the Gujarat Pharmacy Council which is published in the Gujarat Government Gazette dated 14.9.2023. The entire election process stands vitiated and it is not clear which authority with regard to the alternative remedy with respect to the election petition.

4. Per contra, Mr. B. T. Rao, the learned advocate appearing for the respondents No.5 to 10 placed reliance on the affidavit-in-reply filed and submitted that the writ-applicant has approached the State Government challenging the election process. It was submitted that the remedy lies by filing

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election petition under Section 24 of the Pharmacy Act, 1948. It was submitted that the present writ-applicant be relegated to the statutory alternative remedy and the present writ- application may not be entertained.

5. Considering the submissions advanced by the learned advocates appearing for the respective parties, it is apposite to refer to Section 24 of the Pharmacy Act, 1948 which reads thus :-

"Section 24 : Mode of elections .- Elections under this Chapter shall be conducted in the prescribed manner, and where any dispute arises regarding any such election, it shall be referred to the State Government whose decision shall be final."

6. Further the Bombay State Pharmacy Council Rules, 1953 is applicable for holding election of Gujarat State Pharmacy Council. Part-I thereof provides for mode of election. Rule-7 sub-rule(20) provides for election petition. Rule-7(20) reads as under:-

"7(20) If any question arises as to the intention, construction or application of this rule or regarding any election to the Council shall refer such question to the Government whose decision shall be final. A petition questioning the validity of an election to the Council shall be sent to the Council within two months of the date of declaration of the result of election and the Council shall refer such petition under Section 24 of the Act to the Government within

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three months of the said date for the decision of the Government thereon."

7. The provisions of the Maharashtra State Pharmacy Council Rules, 1969 are also applicable for holding the election of Gujarat State Pharmacy Council. The said Rules in Chapter-2 thereof provide for election. Rule-28 thereof provides for time limit for referring election dispute. Rule 28 reads thus :-

"28. TIME LIMIT FOR REFERRING ELECTION DISPUTES :-

The time limit for referring any dispute arising regarding any election of a member or the President or Vice President to the Sate Government shall be thirty days in the case of elected members from the date of declaration of the result of election and in case of the President or Vice President from the date of their Election."

8(A) Considering the aforesaid provisions of law, this Court deems it fit to the ratio as laid down by the Hon'ble Apex Court in the case of Shaji K. Joseph Vs. V. Viswanath & ors. reported in (2016) 4 SCC 429, Para-15 reads thus :-

"15. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section

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5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election."

(B) In case of Bengal State Election Commission & ors. Vs. Communist of India (Marxist) & ors. reported in (2018) 18 SCC 141, Para-29 as under:-

"29. There is merit in the submission that the discipline which is mandated by the provisions of the Constitution and enforced by the enabling state law on the subject must be maintained. Any dispute in regard to the validity of the election has to be espoused by

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adopting a remedy which is known to law namely through an election petition. It is at the trial of an election petition that factual disputes can be resolved on the basis of evidence. This principle has been consistently adhered to in decisions of this Court. In Boddula Krishnaiah (supra), a three Judge bench, adverted to the decisions of the Constitution Bench in NP Ponnuswami v Returning Officer, Namakkal Constituency5 and in Lakshmi Charan Sen v AKM Hassan Uzzaman6. After referring to Ponnuswamy, it was observed:

"In NP Ponnuswamy v Returning Officer, Namakkal Constituency a Constitution Bench of this Court had held that having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted. In conformity with the principle, the scheme of the election law is that no significance should be attached to anything which does not affect the 'election'; and if any irregularities are committed, while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the 'election; and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."

The binding principle must be followed."

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9. Considering the aforesaid ratio as laid down by the Hon'ble Apex Court, the writ-applicant herein having challenged the election held for six new members of the Committee of the respondent No.4 - Gujarat State Pharmacy Council, the remedy lies by filing election petition.

9.1 Further, if the application pending before the respondent authority is in the form of an election petition, the same is directed to be decided within a period of three weeks. Liberty is also reserved in favour of the writ-applicant to prefer an election petition, if the same is not instituted.

10. This Court has otherwise not opined on the merits of the matter.

11. With the aforesaid direction, the present writ-application stands disposed of accordingly.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED