Gujarat High Court
Mohan Budharam Shaikha vs The Station Election Commissioner on 19 June, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8170 of 2025
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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MOHAN BUDHARAM SHAIKHA
Versus
THE STATION ELECTION COMMISSIONER & ORS.
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Appearance:
MR.VATSAL, LD. ADVOCATE FOR MR ASHISH M DAGLI(2203) for the
Petitioner(s) No. 1
MS AISHVARYA GUPTA(8018) for the Respondent(s) No. 1
MS TRUSHA PATEL, LD.ADVOCATE for Respondent No.3.
MR MIHIR VAKHARIYA(8336) for the Respondent(s) No. 3
MR GURUSHARAN H VIRK, LD. GOVERNMENT PLEADER with
MR DHARITRI PANCHOLI AGP for the Respondent No.2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 19/06/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Ms.Aishvarya
Gupta waives service of Rule on behalf of respondent No.1, learned
Assistant Government Pleader Ms.Dharitri Pancholi waives service of
Rule on behalf of respondent No.2 and learned advocate Ms.Trusha
Patel waives service of Rule on behalf of respondent No.3.
2. With the consent of learned advocates appearing for the
respective parties, this petition is taken up for final hearing today.
3. This petition is directed against the order dated
10.06.2025, passed by respondent No.1- election officer,
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whereby the objection raised by the petitioner in relation to
wrong declaration made by respondent no.3, in the nomination
form has been rejected.
4. It is case of the petitioner that, the petitioner raised an
objection against nomination form filled by respondent No.3
(private respondent). The objection was with regard to making
wrong declaration in the nomination form. However, the same
was not considered. Such action of non-considering objections
of petitioner, is contrary to the provisions of Section 30 (1) (m)
of the Act,1993 and therefore, the order dated 10.06.2025
deserves to be quashed and set aside.
5. Facts as referred in the petition are that the petitioner
herein is a candidate, participated in the process of election by
filling up nomination form, for the post of Sarpanch of
Bhadreshvar Gram Panchayat. The petitioner along with
respondent No. 3 filled up the nomination form for the post of
Sarpanch of Bhadreshvar Gram Panchayat. The election of
Bhadreshwar Gram Panchayat is scheduled on 22.06.2025.
Against the nomination form filled by respondent No.3, the
petitioner raised objections dated 09.06.2025. Upon receipt of
objection from the petitioner, returning officer informed
respondent no.3 granting hearing. Respondent No.3,
accordingly responded by filing his reply to objections raised
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by the petitioner. The explanation offered by respondent no.3
was accepted by Election Officer - respondent No. 1, and an
order dated was passed 10.06.2025, against which, this petition
is filed.
6. Heard learned advocate Mr.Vatsal Rupale for the
petitioner, learned advocate Ms.Aishvarya Gupta for respondent
No.1 and learned Senior Advocate Ms.Trusha Patel assisted by
Shriram Sanghvi for respondent No.3 (private respondent).
7. Learned advocate for the petitioner submitted that order
dated 10.06.2025 is contrary to the settled legal position
because the petitioner has three children, which is one of the
disqualifications prescribed under Section 30(1)(m) of the Act
1993 and therefore, the order dated 10.06.2025 being contrary
to the settled legal position, deserves to be quashed and set
aside. In relation to maintainability of writ petition under
Article 226 of the Constitution of India, learned advocate relied
upon decision of this Court, in the case of Dineshbhai Palabhai
Patar v/s Gujarat State Election Commission; dated 23.11.2026,
in Special Civil Application No. 12961 of 2016, to submit that
as held, it is not an absolute bar to file a petition.
8. Opposing the petition, learned advocate Ms. Aishwarya
Gupta for respondent No.1 raised preliminary objection with
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regard to maintainability of present petition. In support, she
has relied upon Article 243-O read with 243-ZG to submit that
there is constitutional bar against maintainability of this
petition as statutory remedy of filing an election petition is
available to the petitioner. Learned Advocate also relied upon
Section 31 of Gujarat Panchayats Act, 1993, to submit that
there available a statutory remedy of appeal. Moreover, upon
receipt of objection if any, the returning officer is required to
cause summary inquiry and the same was done in this case.
9. Learned Senior Advocate Ms.Trusha Patel appearing for
respondent no.3 (private respondent) also raised preliminary
objection with regard maintainability of petition. Distinguishing
the decision dated 23.11.2016 relied upon by learned advocate
for the petitioner in case of Dineshbhai Palabhai Patar V/s.
Gujarat State Election Commission in Special Civil Application
No. 19261 of 2016, learned Sr. Advocate submitted that full
bench of Hon'ble Supreme Court has considered this issue by
taking into consideration earlier decisions. In view of recent
full bench decision of Hon'ble Supreme Court this petition is
not maintainability on the ground of statutory remedy of filing
election petition is available to the petitioner. Learned Senior
advocate relied upon following paragraph of decision of
Hon'ble Supreme Court in the case of State of Goa and
another V/s. Fouziya Imtiaz Shaikh and another reported in
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2021(8) SCC 401.
"36. xxx xxx xxx
The conclusions which I have arrived at may be summed up briefly
as follows:
(1) Having regard to the important functions which the legislatures
have to perform in democratic countries, it has always been
recognized 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.
(2) In conformity with this principle, the scheme the election law
in this country as well as in England 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."
10. Reliance is also placed on paragraph 63 of the judgment
which reads as under:-
"63. A conspectus of the aforesaid judgments in the context of
municipal elections would yield the following results.
I. 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 243ZG 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 elections is yet to be
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announced.
II. If, however, the assistance of a writ court is required in sub-
serving 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.
III. The non-obstante clause contained in Article 243ZG 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 243ZG operates only during the process of
election.
IV. Under Article 243ZA(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 243ZA(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 constitutional or statutory mandate. For this
purpose, it can also approach a writ court to issue necessary
directions in this behalf. It is entirely upto 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.
V. 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.
VI. Article 243ZA(2) makes it clear that the law made by the
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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 243T, which deals with reservation of seats.
VII. The bar contained in Article 243ZG(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 243ZA. This is by virtue of the non- obstante
clause contained in Article 243ZG. 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
concerned statute does not give such orders the status of a
statutory provision.
VIII. Any challenge to orders relating to delimitation or 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 the statutory provisions dealing with
delimitation of constituencies and allotment of seats to such
constituencies.
IX. The constitutional bar of Article 243ZG(a) applies only to courts
and not the State Election Commission, which is to supervise,
direct and control preparation of electoral rolls and conduct
elections to municipalities.
X. 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 (IV) 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."
11. Two more decisions were referred on the issue of
maintainability of present petition, in the case of West Bengal
State Election Commission and others V/s. Communist Party of
India (Marxist) and others reported in 2018(18) SCC 141 and in
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the case of State of Himachal Pradesh and others V/s. Surinder
Singh Banolta reported in 2006(12) SCC 484.Learned Senior
Advocate therefore submitted that, this petition deserves
rejection on the ground of the petitioner having statutory
remedy of filing an election petition.
12. Considered the submissions and the decisions relied upon.
Since the issue was raised on behalf of respondents (the official
as well as private respondents) with regard to maintainability
of present petition, this court, without going into the merits of
the matter, deems it appropriate to consider the issue in
relation to maintainability of present petition.
13. It is noticed that this petition is preferred challenging
non-consideration of the objection raised by the petitioner,
who is one of the candidates contesting the election to be held
on 22.06.2024. It is case of the petitioner that the nomination
form accepted of respondent No.3 is contrary to the provisions
of the Act and he is required to be disqualified on account of
Clause (m) of sub-section (1) of Section 30 of the Gujarat
Panchayats Act. It is noticed that learned Advocate for the
petitioner in relation to maintainability of this petition, has
relied upon decision dated 23.11.2016 of this court in Special
Civil Application No.19261 of 2016 in the case of Dineshbhai
Palabhai Patar V/s. Gujarat State Election Commission. In the
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said decision, after considering the decision in the case of
Mohinder Singh Gill it is held that there is not absolute bar in
entertaining the petition challenging the election. However, in
recent decision the Full Bench 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 it is held as
under: "Bar contained in Articles 243ZG(b) /329 (b)
32. The locus classicus on the subject is by an early judgment of
this court which has been followed on innumerable occasions.
N.P.Ponnuswami v. Returning Officer, Namakkal Constituency
(supra), dealt with a petition that was filed under Article 226
before the Madras High Court praying for a writ of certiorari in
the following circumstances:
"The appellant was one of the persons who had filed
nomination papers for election to the Madras Legislative
Assembly from the Namakkal Constituency in Salem district.
On 28th November, 1951, the Returning Officer for that
constituency took up for scrutiny the nomination papers filed
by the various candidates and on the same day he rejected
the appellant's nomination paper on certain grounds which
need not be set out as they are not material to the point
raised in this appeal. The appellant thereupon moved the
High Court under Article 226 of the Constitution praying for
a writ of certiorari to quash the order of the Returning
Officer rejecting his nomination paper and to direct the
Returning Officer to include his name in the list of valid
nominations to be published. The High Court dismissed the
appellant's application on the ground that it had no
jurisdiction to interfere with the order of the Returning
Officer by reason of the provisions of Article 329(b) of the
Constitution. The appellant's contention in this appeal is that
the view expressed by the High Court is not correct, that the
jurisdiction of the High Court is not affected by Article
329(b) of the Constitution and that he was entitled to a writ
of certiorari in the circumstances of the case."
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33. This Court then summarized Part XV of the Constitution
dealing with elections as follows:
"In construing this Article, reference was made by both
parties in the course of their arguments to the other Articles
in the same Part, namely, Articles 324, 325, 326, 327 and
328. Article 324 provides for the constitution and
appointment of an Election Commissioner to superintend,
direct and control elections to the legislatures; Article 325
prohibits discrimination against electors on the ground of
religion, race, caste or sex; Article 326 provides for adult
suffrage; Article 327 empowers Parliament to pass laws
making provision with respect to all matters relating to, or
in connection with, elections to the legislatures, subject to
the provisions of the Constitution; and Article 328 is a
complementary article giving power to the State Legislature
to make provision with respect to all matters relating to, or
in connection with, elections to the State Legislature. A
notable difference in the language used in Articles 327 and
328 on the one hand, and Article 329 on the other, is that
while the first two articles begin with the words "subject to
the provisions of this Constitution", the last article begins
with the words "notwithstanding anything in this
Constitution". It was conceded at the bar that the effect of
this difference in language is that whereas any law made by
Parliament under Article 327, or by the State Legislatures
under Article 328, cannot exclude the jurisdiction of the
High Court under Article 226 of the Constitution, that
jurisdiction is excluded in regard to matters provided for in
Article 329."
34. xxx xxx
35. Dealing with the specific contention of the bar contained in
Article 329(b) shutting out proceedings under Article 226, the Court
then held:
"The question now arises whether the law of elections in
this country contemplates that there should be two attacks
on matters connected with election proceedings, one while
they are going on by invoking the extraordinary jurisdiction
of the High Court under Article 226 of the Constitution (the
ordinary jurisdiction of the courts having been expressly
excluded), and another after they have been completed by
means of an election petition. In my opinion, to affirm such
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a position would be contrary to the scheme of Part XV of
the Constitution and the Representation of the People Act,
which, as I shall point out later, seems to be that any
matter which has the effect of vitiating an election should be
brought up only at the appropriate stage in an appropriate
manner before a Special Tribunal and should not be brought
up at an intermediate stage before any court. It seems to me
that under the election law, the only significance which the
rejection of a nomination paper has consists in the fact that
it can be used as a ground to call the election in question.
Article 329(b) was apparently enacted to prescribe the
manner in which and the stage at which this ground, and
other grounds which may be raised under the law to call the
election in question, could be urged. I think it follows by
necessary implication from the language of this provision
that those grounds cannot be urged in any other manner, at
any other stage and before any other court. If the grounds
on which an election can be called in question could be
raised at an earlier stage and errors, if any, are rectified,
there will be no meaning in enacting a provision like Article
329(b) and in setting up a Special Tribunal. Any other
meaning ascribed to the words used in the article would
lead to anomalies, which the Constitution could not have
contemplated, one of them being that conflicting views may
be expressed by the High court at the pre-polling stage and
by the election tribunal, which is to be an independent
body, at the stage when the matter is brought up before it.
xxx xxx xxx
37. xxx xxx xxx
38. xxx xxx xxx
39. Likewise, a discussion on the reach of Article 329(b) and
Article 226 of the Constitution after an election petition has been
decided by an election tribunal was then discussed in Hari Vishnu
Kamath v. Syed Ahmad Ishaque, (supra):
"Now, the question is whether a writ is a proceeding in
which an election can properly be said to be called in
question within the meaning of Article 329(b). On a plain
reading of the article, what is prohibited therein is the
initiation of proceedings for setting aside an election
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otherwise than by an election petition presented to such
authority and in such manner as provided therein. A suit for
setting aside an election would be barred under this
provision. In N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency [1952 SCR 218] it was held by this
court that the word "election" in Article 329(b) was used in
a comprehensive sense as including the entire process of
election commencing with the issue of a notification and
terminating with the declaration of election of a candidate,
and that an application under Article 226 challenging the
validity of any of the acts forming part of that process
would be barred. These are instances of original proceedings
calling in question an election, and would be within the
prohibition enacted in Article 329(b). But when once
proceedings have been instituted in accordance with Article
329(b) by presentation of an election petition, the
requirements of that article are fully satisfied. Thereafter
when the election petition is in due course heard by a
tribunal and decided, whether its decision is open to attack,
and if so, where and to what extent, must be determined by
the general law applicable to decisions of tribunals. There
being no dispute that they are subject to the supervisory
jurisdiction of the High Courts under Article 226, a writ of
certiorari under that article will be competent against
decisions of the Election Tribunals also.
The view that Article 329(b) is limited in its operation to
initiation of proceedings for setting aside an election and not
to the further stages following on the decision of the
Tribunal is considerably reinforced, when the question is
considered with reference to a candidate, whose election has
been set aside by the Tribunal. If he applies under Article
226 for a writ to set aside the order of the Tribunal, he
cannot in any sense be said to call in question the election;
on the other hand, he seeks to maintain it. His application
could not, therefore, be barred by Article 329(b). And if the
contention of the first respondent is well-founded, the result
will be that proceedings under Article 226 will be competent
in one event and not in another and at the instance of one
party and not the other. Learned counsel for the first
respondent was unable to give any reason why this
differentiation should be made. We cannot accept a
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construction which leads to results so anomalous."
14. In view of above this court cannot ignore that upon
objection received against the nomination form filled by
respondent no.3, the returning officer provided opportunity to
the objector on the day of scrutiny. Thereafter, the order was
passed after causing summary inquiry. Thus, the procedure
contemplated under the rules was followed. Further, in view of
decision of Hon'ble Supreme Court, referred herein above in
the case of State of Goa and another V/s. Fouziya Imtiaz
Shaikh and another reported in 2021(8) SCC 401, in the
opinion of this Court, in view of remedy available to the
petitioner of filing election petition, this petition challenging
the election would not be maintainable.
15. Moreover, in another decision by the Hon'ble Supreme
Court in case of West Bengal State Election Commission and
others V/s. Communist Party of India (Marxist) and others,
reported in 2018(18) SCC 141, it is held as under:
"26. The Panchayat Elections Act is a complete code in regard to
the conduct of the poll and for the resolution of disputes
concerning the validity of the election. Article 243K entrusts the
superintendence, direction and control over the conduct of all
elections to the panchayats in the State Election Commission.
Clause (b) of Article 243 C stipulates thus:
"243-O Notwithstanding anything in this Constitution-- (b) no
election to any Panchayat shall be called in question except 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."
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16. In one more decision of Hon'ble Supreme Court in the
case of State of Himachal Pradesh and others V/s. Surinder
Singh Banolta, reported in 2006(12) SCC 484, it is held as
under:
"12. Disqualification as provided for under Article 243F has
been laid down in Section 122 of the Act. Section 175 of the
Act provides for disqualification as one of the grounds upon
which an election petition could be filed. Interpreting the
aforementioned provisions, a Division Bench of the Himachal
Pradesh High Court opined that the order dated 27.06.2002
passed by the Deputy Commissioner is not sustainable in law."
17. In this case also it is submission of the petitioner that on
the ground of disqualification of respondent no.3, the election
declared may be withheld and therefore, in view of above
referred decisions, writ petition under Article 226 of the
Constitution of India, would not be maintainable.
18. Thus, in the opinion of this court the petition is devoid
of any merits and the same is hereby dismissed. Rule
discharged. No cost.
(MAUNA M. BHATT,J)
Parul Dutta..
