2005 Supreme(Guj) 841

Gujarat High Court
Judgename :K.A.Puj, M.S.Shah
UDAYBHAI NARESHBHAI VORA - Appellant
Versus
STATE ELECTION OFFICER - Respondent
Special Civil Application 24428 of 2005
Decided On : 12/28/2005

Headnote:Point in Issue :

       Municipal election - Unreserved seat - Declaring woman candidate as elected - Challenge to - Also challenge to constitutional validity of Rules 9(a) and 63(4) of Rules, 1994 - Sustainability - Finding as to.

       Head Note :

       Gujarat Municipalities (Conduct of Election) Rules, 1994 - Rules 9(a), 17(1), 63(2), (3) and (4) - Constitution of India, 1950 - Articles 14, 226, 243-T Clause (1) and (3), - Representation of People Act, 1951 (Central Act 43 of 1951) - Sections 6(3), 14, 54 (1), (4) ,55, 330 - Municipal election - Unreserved seat -Declaring woman candidate as elected - Challenge to - Also challenged to constitutional validity of Rules, 9(a) and 63(4) of Rules, 1994 - Sustainability - Finding as to - The petitioner has challenged election of Respondent No. 3 on ground that she having contested as a woman candidate cannot stake her claim for unreserved seat when another woman candidate having secured more votes than her have been declared elected - In view of express provision under the Rules 9 and 63 the contention of petitioner is unsustainable - A woman candidate who offers herself for a seat reserved for woman does not lose her claim to be considered for an unreserved seat - In the facts of the present case Respondent No. 3 admittedly secured the maximum number of votes and definitely more than the votes secured by present petitioner declaring her as successful by Election Officer cannot be faulted - Moreover constitutional validity of Rules 9 and 63(4) is beyond challenge in view of Supreme Court decision in V.V. Giri vs. D.S. Dora, AIR 1959 SC 1318 wherein constitutional validity of similar provisions embodied in Act of 1951 are upheld.

       Held :

       The provisions of Rule 9 as well as Rule 63 embody the same principle as was underlying Sections 54 (4) and 55 of the Representation of People Act, 1951. Hence, a woman candidate who offers herself for a seat reserved for women does not lose her claim to be considered for an unreserved seat. As mentioned in the decision of the Apex Court in the V.V. Giri case, it would be obvious that once the candidates declared elected to the reserved seats (one seat reserved for women and another seat reserved for SEBC in the instant case) are excluded, the unserved seat has to go to the candidate who has secured the maximum number of votes amongst the other candidates. In the facts of the present case, Respondent No. 3 admittedly secured the maximum number of votes (and definitely more than the votes secured by the present petitioner) from out of the candidates who remained after Nilaben Harde was declared elected to the seat reserved for women and Chiragbhai Barot to the seat reserved for SEBC candidates. The declaration of the result by the Election Officer is, therefore, in accordance with the provisions of Rules 9 and 63 of the Election Rules.

        [Para 13]

       When there are express provisions in the Election Rules embodying the same principle, the constitutionality of which was upheld in V.V. Giri vs. D.S. Dora, AIR 1959 SC 1318, the decision in V.V. Giri case is a binding precedent for the principle laid down therein.

        [Para 14]

       There is nothing in the aforesaid constitutional and statutory provisions to indicate that a candidate who has offered himself/herself for a reserved seat cannot be considered for an unreserved seat even where he/she has secured more votes than the other candidates after excluding those elected to the reserved seats. As already held in the case of V.V. Giri vs. D.S. Dora (Supra), the claim of eligibility for a reserved seat does not exclude the claim of the candidate for a general seat, it is an additional claim and both the claims have to be decided on the basis that there is one election from the multi-member constituency. Since, the reservation of seats is intended to guarantee a minimum number of seats to the concerned categories, therefore, if members belonging to the said categories secure additional seats by election to general unreserved seats, there is nothing unconstitutional or arbitrary about it.

        [Para 18]

       Law Laid Down :

       Election of a woman candidate on unreserved seat, securing more votes than other is valid.

       Case Law Analysis :

       V.V. Giri vs. D.S. Dora, AIR 1959 SC 1318 [Para 9].-Followed

       Conclusion :

       In view of provision under the Rules, 1994 election of a woman candidate, on unreserved seat securing more votes than others not illegal - The provision in this regard in the rules cannot also be held unconstitutional in view of binding decision of Supreme Court upholding constitutional validity of similar provision embodied in Peoples Representation Act, 1951.

       Decided in Favour of :

       Respondent

       Petition Dismissed