Gujarat High Court
Mhammedsoyab Abdulrahim Dal vs State Election Commission, Gujarat ... on 22 January, 2025
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C/SCA/16727/2024 JUDGMENT DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16727 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
Yes
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MHAMMEDSOYAB ABDULRAHIM DAL
Versus
STATE ELECTION COMMISSION, GUJARAT STATE & ORS.
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Appearance:
MR SANGEETA PAHWA, LD.ADVOCATE FOR THAKKAR AND PAHWA
ADVOCATES(1357) for the Petitioner(s) No. 1
MR MAYANK CHAVDA, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 3
MS ROOPAL R PATEL(1360) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 22/01/2025
ORAL JUDGMENT
1. Draft amendment is allowed. To be carried out forthwith.
2. Rule returnable forthwith. Learned advocate Ms.Roopal
Patel waives service of Rule on behalf of respondent Nos.1 and
2 and learned Assistant Government Pleader Mr.Mayank
Chavda waives service of Rule on behalf of respondent No.3.
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3. Considering the issue involved and at the request made
by learned advocate on behalf of the petitioner, the matter is
taken up for final hearing today. Learned Assistant Government
Pleader Mr.Mayank Chavda has tendered affidavit in reply
dated 22.01.2025 on behalf of respondent No.3 and the same
is taken on record.
4. This petition is filed seeking following reliefs:
"(A) YOUR LORDSHIPS be pleased to issue a writ of
mandamus or any other appropriate writ, order or
direction, quashing and setting aside the impugned
order dated 13.11.2024 (Annexure-A) to the extent not
allocating 8 seats to Backward Class in Schedule-2 in
relation to upcoming General Elections to Chhota
Udepur Nagar Palika as being contrary to the provisions
of Gujarat Municipalities Act, 1963 and Gujarat Local
Authorities Laws (Amendment) Bill 2023;
(B) YOUR LORDSHIPS be pleased to issue a writ of
mandamus or any other appropriate writ, order or
direction, directing the respondent no.1 to hold
upcoming General Elections to Chhota Udepur Nagar
Palika in consonance with Gujarat Municipalities Act,
1963 and Gujarat Local Authorities Laws (Amendment)
Bill 2023 by allocating 8 seats to Backward Class, in the
interest of justice
(C) YOUR LORDSHIPS be pleased to stay the
implementation, operation and execution of the
impugned order dated 13.11.2024 (Annexure-A) to the
extent allocating 5 seats instead of 8 seats to Backward
Class in Schedule-2 in relation to upcoming General
Elections to Chhota Udepur Nagar Palika, pending the
admission, hearing and final disposal of this petition;
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(D) YOUR LORDSHIPS be pleased to grant such other and
further reliefs as may be deemed fit and proper are
deemed fit, in the interest of justice;"
5. Facts, as referred in the petition, are as under:
5.1 The petitioner herein is resident of Chhota Udepur since
many years and his name appears in the voters list of Chhota
Udepur constituency. The petitioner belongs to Backward Class
and is interested to contest the upcoming elections of Chhota
Udepur Municipality. Other requirement of contesting election
for Chhota Udepur constituency are complied with.
5.2 The last election of Chhota Udepur Municipality was held
in the year 2018 and at the relevant time, order for
delimitation of wards and allocation of reserved seats was
made on 09.10.2017. In the said order, 5 seats were allocated
as reserved seats for Backward Class.
5.3 It is case of the petitioner that section 6(3)(c) of the
Gujarat Municipalities Act, 1963 was amended by virtue of the
Gujarat Local Authorities Laws (Amendment) Bill, 2023
wherein, 27% of total number of seats (instead of one-tenth of
total number of seats) were reserved for Backward Class.
Therefore, as per Section 6(3)(c), reservation for the Backward
Class shall be 27% of the total number of seats.
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5.4 Subsequent thereto, an announcement was made on
29.08.2023 by the State Government declaring reservation for
Backward Class as 27%, wherein there is no change in reserved
seats for Scheduled Caste and Scheduled Tribes, which provides
for 7% and 14% respectively of total number of seats.
5.5 Accordingly, in the order dated 13.11.2024 issued by
respondent No.1- State Election Commission, total 28 seats
were declared for Chhota Udepur constituency. It is case of the
petitioner that since 27% of total seats are reserved for
Backward Class, for Chhota Udepur constituency in the order
dated 13.11.2024, it ought to have allocated 8 seats for
category of Backward Class. Since 8 seats were not allotted for
Back-ward Class Category, this petition is filed.
6. Heard learned advocate Mrs.Sangeeta Pahwa for the
petitioner; learned advocate Ms.Roopal Patel for respondent
Nos.1 and 2 and learned Assistant Government Pleader
Mr.Mayank Chavda for respondent No.3.
7. Learned advocate Mrs.Sangeeta Pahwa for the petitioner
submitted that the order dated 13.11.2024 not declaring 8
seats in reserved category for Backward Class is erroneous on
the following grounds:
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7.1 As per section 3 of the Gujarat Local Authorities Laws
(Amendment) Bill, 2023 (Annexure "C" Page-26), section 6(3)
(c) of Gujarat Municipalities Act, 1963 is amended and in place
of one-tenth of the total number of seats, 27% of total number
of seats is substituted. The above Act is notified in the
Government Gazette by Notification dated 14.06.2024 and the
Act came into force on 15.06.2024. Therefore, reservation of
27% of total number of seats for Backward Class is not in
dispute. Since 27% of seats is to be filled by direct election for
the persons falling in Backward Class, 8 seats ought to have
been reserved.
7.2 Further, as provided under section 6(3)(c), one-third of
total number of seats reserved for Backward Class shall be
reserved for women belonging to the Backward Class. 27% of
total 28 seats, comes to 7.56% i.e. 8 seats ought to have been
reserved for Backward Class and out of those 8 seats, one-third
of 8 seats i.e. 2 seats should be reserved for women belonging
to Backward Class. In relation to reservation of 7% to Schedule
Caste and reservation of 14% to Scheduled Tribe, learned
advocate submitted that there is no dispute to that. Learned
advocate Mrs.Pahwa submitted that the order dated 13.11.2024
ought to have been considered by reading section 6(3)(c) of the
Act. Thus, if the Act is given effect, then Schedule-2 should be
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as under: -
SC - 2 seats (7% of total 28 seats)
ST - 4 seats (14% of total 28 seats= 3.78)
Backward Class - 8 seats (27% of total 28 seats= 7.56)
7.3 Instead impugned Schedule-2 allocate the seats as under:
Total Seats: 28
(1) Reserved for Women: 14 (including SC, ST & Backward
class), (7 reserved + 7 general)
A. Scheduled Caste : 2 (7% of total 28 seats= 2)
(Out of 2, 1 is reserved for women)
B. Scheduled Tribes: 7 (which should be 4 as 14% of
total 28 seats come to 4) (out of 7,
4 is reserved for women)
C. Backward Class : 5 (7% of total 28 seats = 2) (Out of
5, 2 are reserved for women)
(2) Total Reserved Seats: 21 (which should be 14 seats since
2+7+5=14)
(3) General Category: 7 (which should be 14
since 7+ 7 women- 14)
Since above allocation is not in consonance with the
provisions of the Act referred herein above, and only 5 seats
have been provided for Backward Class instead of 8 seats,
there is an error and therefore, the present petition is filed.
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7.4 With regard to reservation of women as prescribed under
section 6(3)(c) of the Act, learned Advocate relied upon
following decisions:
(i) Kishorchandra Chhaganlal Rathod V/s. Union of India in
Civil Appeal No.7930 of 2024;
(ii) K.Krishna Murthy (Dr) and others Vs. Union of India &
Anr. reported in (2010)7 SCC 202
(iii) Vikas Kishanrao Gawali V/s. State of Maharashtra and
others reported in (2021)6 SCC 73
(iv) The UVA Doodh Utpadak Sahakari Mandli Limited and
others V/s. State of Gujarat and others in Special Civil
Application No.2348 of 2024
(v) Rajesh Kumar Darias V/s. Rajasthan Public Service
Commission and others reported in (2007)8 SCC 785.
7.5 Learned advocate for the petitioner relied upon section
6(3)(c) of the Act, which reads as under:
6. Municipality to consist of elected Councilors-
(3) Out of the total number of seats of councilors in a
municipality, there shall be reserved seats for Scheduled
Castes, Scheduled Tribes, Backward Classes and women as
follows, namely.
(c) One-tenth of the total number of seats to be filled
by direct election in every municipality shall be
reserved for persons belonging to backward classes and
one-third of the seats so reserved for backward classes
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shall be reserved for women belonging to the backward
classes. Such seats may be allotted by rotation to
different constituencies in the prescribed manner."
By relying upon section 6(3)(c) of the Act, she submitted
that 27% of the total number of seats to be filled by direct
election in every municipality are required to be reserved for
persons belonging to Backward Classes and one-third of the
seats so reserved for Backward Classes are required to be
reserved for women belonging to Backward Classes.
7.6 Learned advocate Mrs.Pahwa submitted that the present
petition is maintainable as there is no prohibition in
entertaining the petition and the same has been considered by
this Court in the case of The UVA Doodh Utpadak Sahakari
Mandli Limited and others V/s. State of Gujarat and others in
Special Civil Application No.2348 of 2024. Learned advocate
submitted that the said decision also relies upon various
decisions of the Hon'ble Supreme Court on maintainability of a
petition and therefore, this petition being maintainable, may be
considered.
7.7 Further, till date no Notification has been issued by the
State Government. Reference made in the reply dated
22.01.2025, is of Code of Conduct and the same being not a
Notification, the contention of the respondent that the petition
is not maintainable, may be rejected.
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7.8 Further, as held by this Court in Special Civil Application
No.2348 of 2024 (supra), there exists no absolute bar in
entertaining such petition, wherein it is held as under :
"15. This Court is well aware that in normal circumstances,
it is well settled that once the election program is declare,
the Court cannot interfere in such election process while
exercising the powers under Articles 226 and 227 of the
Constitution of India, however, it is not complete bar. It is
the say of the respondents that since there is no any
fundamental rights were violated of the petitioners and there
is no any adverse order was passed as their names have been
incorporated in the voters list and they have not been
apprehended in participation in the election and, therefore,
the petitioners have no any rights to agitate the grievance in
the present petition as there is no fundamental rights and,
therefore, the petition may not be entertained. Normally, this
Court cannot interfere in the election program once the
election is in progress, but considering the factual aspects that
though the seat was vacant from 15th October 2022, the
election was not conducted by the respondents and, therefore,
the petitioners have approached this Court by way of the said
writ petition wherein this Court has specifically issued
direction in light of the election program and in issuance of
the election program, the Election Officer has completely
overlooked and flouted the statutory mandatory rules framed
under the statute and, therefore, under these circumstances,
this Court is exercised jurisdiction under Articles 226 and 227
of the Constitution of India."
8. On the other hand, learned advocate Ms.Roopal Patel
appeared for respondent Nos.1 and 2 and submitted that
pursuant to the Notification dated 17.08.2024, an order dated
13.11.2024 was passed. The order dated 13.11.2024 is in
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consonance with the Notification dated 17.08.2024 wherein, for
constituency of Chhota Udepur, total number of seats were
declared as 28. The bifurcation given for total number of seats
as per section 6(3)(C) is referred in the table annexed to the
reply filed on behalf of respondent No.3. Therefore, order
dated 13.11.2024 is as per Notification issued by the
Government and there is no error as alleged.
8.1 Further, as per population census of 2011, out of total 28
seats, 2 seats have been reserved for Scheduled caste category
and out of those 2 seats of Scheduled Caste category, 1 seat is
reserved for woman (50% of Scheduled Caste category). In the
similar manner, considering the population census of 2011, 7
seats were reserved for Scheduled Tribe category and out of
that, 3 seats have been reserved for Schedule Tribe women.
Further, there is no challenge or dispute to the category
reserved for Scheduled Caste and Scheduled Tribe in the
present petition.
8.2 In relation to Backward Class reservation seats, since 50%
being 14 seats out of total 28 seats, have been considered for
reserved category, 5 remaining seats (that would be 14 - 9 =
5) were considered for Backward Class category. If the
contention of the petitioner is accepted, the same would
amount to increasing the reservation beyond 50%, which is not
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permissible in law. Learned advocate Ms.Roopal Patel
submitted that so far as Backward Class category seats which
is under challenge in the present petition, respondent Nos.1
and 2 have acted in consonance with the Notification as also,
as per the settled proposition of law that 50% seats are to be
reserved out of total seats for reservation and the same has
been done in the present case.
8.3 Further, as per amended provisions of the Gujarat Local
Authorities Laws (Amendment) Bill, 2023, proviso to section
3(ii) refers to allocation of seats to Backward Class, which is
subject to aggregate reservation of 50% and in this case, since
after allotting seats to Scheduled Caste and Scheduled Tribe
candidates, balance seats are to be considered for Backward
Class, there is no illegally as alleged.
8.4 Learned advocate therefore submitted that this proviso
since being added along with the substitution of one-tenth to
27% of total number of seats, the said proviso is to be read in
consonance with section 6(3)(c) and therefore, submission of
learned advocate for the petitioner is beyond the provision.
8.5 Learned advocate Ms.Roopal Patel submitted that total
reservation should not exceed 50% and she relied upon
decision of Hon'ble Supreme Court in the case of Vikas
Kishanrao Gawali (supra) (Para-28).
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9. Learned Assistant Government Pleader Mr.Mayank Chavda
supported the submissions made by learned advocate
Ms.Roopal Patel for respondent Nos.1 and 2.
9.1 Learned Assistant Government Pleader Mr.Mayank Chavda
firstly opposed the present petition on the ground that the
present petition is not maintainable since in the present case,
as referred in the affidavit, the election process has begun by
publishing the Code of Conduct and Circular dated 21.01.2025.
As per the said Code of Conduct and the Circular dated
21.01.2025, the date of declaration of Notification is referred
as 27.01.2025. Since the process has begun and Notification is
to be declared on 27.01.2025, this petition deserves to be
rejected only on the ground that this Court may not entertain
the present petition because the process of election has begun.
9.2 Learned Assistant Government Pleader referring to the
affidavit submitted that on 17.08.2024 Urban Development and
Urban Housing Department of respondent No.3 published
Notification in exercise of powers under the Gujarat
Municipalities Act, 1963.
9.3 Further, bare reading of 6(3)(ii) of the Act, makes it clear
that first aggregation to 50% which comes to 14 seats out of
total 28 seats is to be reserved for the Scheduled Caste,
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Scheduled Tribe and Backward Class. It is to be done in
consonance with the population of the Scheduled Caste,
Scheduled Tribe and Backward Class. In this case, population
of Scheduled Caste and Scheduled Tribes are 31.15% out of
50% reservation, which is less than 40%. Therefore, the quota
for other Backward Class remaining is 18.85% and therefore
seats for the other Backward Class remaining are 5 seats
including women seats. Therefore, 5 seats including women
seats have been allotted to Backward Class, which is in
consonance with the provisions of section 6(3)(c) of the Act.
Therefore, there is no irregularity as alleged.
9.4 In support of his submission, learned Assistant
Government Pleader has relied upon the decision of the
Hon'ble Supreme Court in the case of State of Goa and
another V/s. Fouziya Imtiaz Shaikh and another reported in
(2021)8 SCC 401.
10. Considered the submissions and decisions relied upon. At
the outset, this Court would like to consider the issue with
regard to maintainability of the present petition. In relation to
maintainability of the present petition, it is apposite to refer to
the affidavit filed by respondent No.3 wherein, the
communication dated 21.01.2025 in relation to Code of
Conduct has been placed on record. Thus, the said Code of
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Conduct refers to application of this Code of Conduct from
21.01.2025 till 18.02.2025. Moreover, the said Code of Conduct
refers to date of declaration of election on 27.01.2025
therefore, it is not in dispute that on 21.01.2025, Code of
Conduct was in existence, which refers to application of Code
of Conduct from 21.01.2025 to 18.02.2025. In the said Code of
Conduct, list of elections to take place in respective
constituency in February,2025 has been declared, in which,
Chhota Udepur constituency has been declared at Sr.Nos.46
and 47. Therefore, declaration of election has been made with
the Code of Conduct dated 21.01.2025. It is true that
declaration of program of election is to be published by each
constituency on 27.01.2025, but that would not dilute the fact
that process of election has begun. In the opinion of this
Court, Code of Conduct dated 21.01.2025, is applicable from
21.01.2025 till 18.02.2025. Therefore, it cannot be denied that,
the process of election has begun.
11. In the above context, it is apposite to refer to the
decision of the Hon'ble Supreme Court in the case of State of
Goa and another V/s. Fouziya Imtiaz Shaikh and another
reported in (2021)8 SCC 401, wherein the Hon'ble Supreme
Court has held as under :
"68. A conspectus of the aforesaid judgments in the context
of municipal elections would yield the following results:
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68.1. Under Article 243-ZG(b), no election to any municipality
can be called in question except by an election petition
presented to a Tribunal as is provided by or under any law
made by the legislature of a State. This would mean that
from the date of notification of the election till the date of
the declaration of result a judicial hands-off is mandated by
the non obstante clause contained in Article 243-ZG debarring
the writ court under Articles 226 and 227 from interfering
once the election process has begun until it is over. The
constitutional bar operates only during this period. It is
therefore a matter of discretion exercisable by a writ court as
to whether an interference is called for when the electoral
process is "imminent" i.e. the notification for election is yet
to be announced.
68.2. If, however, the assistance of a writ court is required in
subserving the progress of the election and facilitating its
completion, the writ court may issue orders provided that the
election process, once begun, cannot be postponed or
protracted in any manner.
68.3. The non obstante clause contained in Article 243-ZG
does not operate as a bar after the Election Tribunal decides
an election dispute before it. Thus, the jurisdiction of the
High Courts under Articles 226 and 227 and that of the
Supreme Court under Article 136 of the Constitution of India
is not affected as the non obstante clause in Article 243-ZG
operates only during the process of election.
68.4. Under Article 243-ZA(1), the SEC is in overall charge of
the superintendence, direction and control of the preparation
of electoral rolls, and the conduct of all municipal elections.
If there is a constitutional or statutory infraction by any
authority including the State Government either before or
during the election process, the SEC by virtue of its power
under Article 243-ZA(1) can set right such infraction. For this
purpose, it can direct the State Government or other authority
to follow the Constitution or legislative enactment or direct
such authority to correct an order which infracts the
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constitutional or statutory mandate. For this purpose, it can
also approach a writ court to issue necessary directions in this
behalf. It is entirely up to the SEC to set the election process
in motion or, in cases where a constitutional or statutory
provision is not followed or infracted, to postpone the
election process until such illegal action is remedied. This the
SEC will do taking into account the constitutional mandate of
holding elections before the term of a municipality or
Municipal Council is over. In extraordinary cases, the SEC
may conduct elections after such term is over, only for good
reason.
68.5. Judicial review of a State Election Commission's order is
available on grounds of review of administrative orders. Here
again, the writ court must adopt a hands-off policy while the
election process is on and interfere either before the process
commences or after such process is completed unless
interfering with such order subserves and facilitates the
progress of the election.
68.6. Article 243-ZA(2) makes it clear that the law made by
the legislature of a State, making provision with respect to
matters relating to or in connection with elections to
municipalities, is subject to the provisions of the Constitution,
and in particular Article 243-T, which deals with reservation
of seats.
68.7. The bar contained in Article 243-ZG(a) mandates that
there be a judicial hands-off of the writ court or any court in
questioning the validity of any law relating to delimitation of
constituency or allotment of seats to such Constituency made
or purporting to be made under Article 243-ZA. This is by
virtue of the non obstante clause contained in Article 243-ZG.
The statutory Provisions dealing with delimitation and
allotment of seats cannot therefore be questioned in any
court. However, orders made under such statutory provisions
can be questioned in courts provided the statute concerned
does not give orders the status of a statutory provision.
68.8. Any challenge to orders relating to delimitation or
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allotment of seats including preparation of electoral rolls, not
being part of the election process as delineated above, can
also be challenged in the manner provided by statutory
provisions dealing with delimitation of constituencies and
allotment of seats to such constituencies.
68.9. The constitutional bar of Article 243-ZG(a) applies only
to courts not the State Election Commission, which is to
supervise, direct and control preparation of electoral rolls and
conduct elections to municipalities.
68.10. The result of this position is that it is the duty of the
SEC to countermand illegal orders made by any authority
including the State Government which delimit constituencies
or allot seats to such constituencies, as is provided in
Proposition 68.4 above. This may be done by the SEC either
before or during the electoral process, bearing in mind its
constitutional duty as delineated in the said proposition."
12. Moreover, in the decision relied upon by the petitioner of
this Court in Special Civil Application No.2348 of 2024, it is
held that this Court is well aware that in normal
circumstances, once election program is declared, the court
cannot interfere with such election process by exercising the
powers under Articles 226 and 227 of the Constitution of India.
However, it is not a complete bar. Applying the same
principle, this Court is conscious of the fact that there is no
complete bar in entertaining such petition. However,
considering the fact that there is remedy available to the
petitioner and in absence of any breach of fundamental rights
and in breach of any mandatory rules, this court deems it
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appropriate not to entertain the present petition only on the
ground that the election process has begun. In view of
consideration of first issue, which is being raised by learned
Assistant Government Pleader for respondent No.3- State, this
Court deems it appropriate not to enter into the merits in
relation to the allocation of seats. At this stage, if the prayers
prayed for by the petitioner is accepted, the same would stall
the entire election process.
13. In view of above, present petition is dismissed only on
the ground of having not exercised the powers under Articles
226 and 227 of the Constitution of India. Therefore, without
going into the merits, the present petition is rejected. Rule is
discharged.
sd/-
(MAUNA M. BHATT,J)
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