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2005 Supreme(Guj) 720
Gujarat High Court
Judgename :B.J.Shethna, M.C.PATEL, R.M.Doshit
JABIR HUSSAIN NASIR AHMED BOGA - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 10139 of 2005
Decided On : 10/25/2005
Headnote:Point in Issue :
Writ petition - Election to Municipality - Constitution of Wards - Maintainability.
Head Note :
Constitution of India, 1950 - Articles 226, 243-ZG, 243-ZG(b) - Gujarat Municipalities Act, 1963 - Sections 7 (2), 2(7-A), 14, 14(5) and 14(5)(i)(ii)(iii)(iv) - Representation of the Peoples Act, 1951 (Central Act 43 of 1951) - Section 100 - Municipal Borough Rules, 1994 - Writ petition - Election to Valsad Municipality - Constitution of wards - Maintainability - In view of definition of election given under the Act of 1963, the election process in respect of the said Municipality has already commenced by division of wards - Such process cannot be called in question except by an election petition as provided under the said Act and High Court cannot entertain the petition in view of the bar imposed by Article 243-ZG on the Courts - In the context and setting of the expression "No election to any Municipality appearing in Article 243-ZG it is clear that even on the ground of improper delimitation of the constituencies election to any municipality cannot be called in question except by an election petition and in such manner as may be provided for in the State law.
Held :
Where the provisions are made by the State Legislature for an election petition, the ambit of challenge against the election to a Municipality is circumscribed by the provisions of such law made by the State Legislature. Section 14 of the said Act provides for determination of the validity of election and lays down that the validity of any election of a Councilor can be brought in question at any time within 15 days after the date of declaration of result of the election, by making an application with the District Court for the determination of such question and the Judge may after such inquiry as he deems necessary pass an order confirming or amending the declared results of the election or set aside the election. Thus, the State Legislature has provided for filing of an election petition in which election to any Municipality can be called in question. Since, reference in Article 243-ZB is to the law made by the State Legislature in context of the election of a Municipality being called in question, the concept of election as incorporated in the Municipal Law becomes relevant. Therefore, definition of word "Election" incorporated in Section 2(7-A) of the said Act is required to be noticed for ascertaining the ambit of a petition under Section 14 of the said Act, under which the questions regarding validity of any election of counsellors can be determined. The term "election" as defined in Section 2 (7-A) of the said Act reads as under: "....In view of this definition, the election process in respect of the said Municipality has already commenced by the division of wards. Thus, since, the election process has already commenced, such process cannot be called in question except by an election petition, in the manner provided for in Section 14 of the said Act and the High Court cannot entertain the petition in view of the bar imposed by Article 243-ZG on the Courts to interfere in electoral matters except by the election petition........Thus, if any irregularity is committed while the election is in progress, it should be brought before the Special Tribunal by means of the election petition and not be made a subject of dispute before the Court in view of specific provisions of Article 243-ZB of the Constitution. In the context and setting of the expression "No election to any Municipality can be called in question appearing in Article 243-ZG", it is clear that even on the ground of improper delimitation of the constituencies, election to any Municipality cannot be called in question except by an election petition and in such a manner as may be provided for in the State Law. In other words, the law made by the State Legislature can be the only source of calling in question the election of any Municipality and the grounds of challenge can only the such as are provided by such law." [Para 15]
Law Laid Down :
In respect of Municipalities election process commences with the division of wards and if any irregularity is committed while election is in progress it could be challenged by election petition and cannot be made a subject of dispute before the Court.
Conclusion :
Challenge to constitution of wards of Valsad Municipality can be entertained only by election petition after election is over and cannot be made a subject of dispute before the Court.
Cases Referred :
State of Bombay vs. Ali Gulshan, AIR 1955 SC 810;; Meghraj Kothari vs. Delimitation Commission & Ors., AIR 1967 SC 669;; Pampakavi Rayappa Belagali vs. B.D. Jatti & Ors., AIR 1971 SC 1348;; Jashwant Singh vs. Virender Singh & Ors., AIR 1995 SC 520;; State of U.P. & Ors. etc. vs. Pradhan Sangh Kshettra Samiti & Ors. etc., AIR 1995 SC 1512;; Smt. Sk. Khasim Bee vs. The State Election Commissioner, AIR 1996 A.P. 324;; L. Chandra Kumar vs. Union of India & Ors., AIR 1997 SC 1125;; Anugrah Narain Singh & Anr. vs. State of U.P. & Ors, 1996 (6) SCC 303;; Election Commission of India through Secretary vs. Ashok Kumar & Ors., 2000 (8) SCC 216;; Bhaichandbhai Maganlal Shah vs. The State of Gujarat & Ors., 1976 GLR 210;; Kanchanlal Brijlal Patel & Ors. vs. Keki Rustomji Davar & Ors., 1983 (2) GLR 1377;; Ismail Noormohmad Mehta & Ors. vs. State of Gujarat & Ors., 1996 (1) GLR 549;; Gohel Sunit Devshi vs. State Election Commission & Ors., 2000 (2) GLR 1527;; M.N. Bhatt & Ors. vs. State of Gujarat, 1974 GLT 172;; Pran Nath Bhatia & Ors. vs. State of Punjab & Ors., AIR 1997 P&H 309;; V. Kunhabdulla & Anr. vs. State of Kerala & Ors., AIR 2000 Kerala 376;; Durga Shankar Mehta vs. Raghuraj Singh & Ors., AIR 1954 SC 520;; Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors., AIR 1978 SC 851;; Lakshmi Charan Sen & Ors. vs. A.K.M. Hassan Uzzaman & Ors., AIR 1985 SC 1233;; Boddula Krishnaiah & Anr. vs. State Election Commissioner, A.P. & Ors., JT 1996 (4) SC 156;; Manda Jaganath vs. K.S. Rathnam & Ors., AIR 2004 SC 3600.
Decided in Favour of :
Respondent
Petition Rejected
( 1 ) THE above referred Special Civil Applications Nos. 10139/2005 and 10140/2005 were referred to a Larger Bench by the Bench comprising Honble Mr. Justice R. S. Garg and Honble Mr. Justice Ravi R. Tripathi under order dated 30th June, 2005.
( 2 ) THE petitioners challenge the constitution of wards of Valsad Municipality under order dated 11th May, 2005 made by the Chief Election Commissioner, Gujarat State. The challenge is on various grounds stated in the writ petitions but mainly on the grounds that the constitution of wards has been made with ulterior motive, in violation of mandatory requirement of Section 7 (2) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as, the Act of 1963), and that certain dubious and non-existing blocks are included/interpolated in ward No. 3 though the actual population in wards No. 3 is less than a thousand.
( 3 ) THE writ petitions were contested by the Election Commission and the Government of Gujarat. A preliminary objection was raised with respect to the maintainability of the writ petitions. The Honble Judges were of the opinion that delimitation cannot be challenged in an Election Petition. The Honble Judges, however, observed that,. . . the matter being of public importance and is often raised before the Court, deserves to be considered by a Larger Bench. Let the matter be placed before the Honble the Chief Justice for constituting appropriate Bench.
( 4 ) PURSUANT to the above direction, under the order made by the Honble Chief Justice, the matters were placed before us on 10th August, 2005. After some hearing the matters were allowed to stand over to 17th August, 2005. As the above Special Civil Applications Nos. 9785/2005 and 9786/2005 raise identical issues, the same were also placed before us on 17th August, 2005. At the outset senior advocate Mr. D. D. Vyas appearing for the petitioners in Special Civil Applications Nos. 9785/2005 and 9786/2005 requested for adjournment. However, in view of the stay against the election process granted by the Division Bench further adjournment was refused. The matters were heard and rejected and the interim relief granted in each petition was vacated for the reasons to be recorded thereafter.
( 5 ) WE record our reasons as under: the constitutional and statutory provisions which are relevant for the purpose of these petitions are Article 243-ZG of the Constitution of India and Clause 7a of Section 2, Sub-section (2) of Section 7 and Sub-section 5 of Section 14 of the Gujarat Municipalities Act, 1963 which read as under :
( 6 ) ARTICLE 243-ZG. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution, -- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243-ZA shall not be called in question in any court; (b) no election to any Municipality 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.
( 7 ) CLAUSE 7a of Section 2: Election means and includes the entire election process commencing from the division of wards and all stages culminating into election of a councillor and it is always deemed to have meant and included the entire election process as aforesaid.
( 8 ) DETERMINATION of number of councillors to be elected and determination of wards.- (1) Each Municipality shall consist of councillors chosen by direct election. (2) Where general election is to be held immediately after, - the specification of a local area as a transitional area or as the case may be, a smaller urban area under article 243q of the Constitution of India is made, or the census is taken under the Census Act, 1948 (Act No. 37 of 1948), and the relevant figures of which have been published, or the limits of a municipal borough are altered, (a) the State Gover
