Point of Law: An illegal preparation of an electoral roll goes to the very root of the matter and no election can be held. A voter could therefore challenge the election and merely because he took part in the election could not estop him from doing so. He would therefore submit that when the electoral list of the Court is incomplete or flawed for election to the Executive Council, a petition is the only option.

ORDER :

ORDER IN CIVIL APPLICATION

Heard. In view of the averments made in the Civil Application, the applicant is permitted to be joined as party respondent no. 3 in the main writ petition. Civil Application is accordingly allowed.

ORDER IN SPECIAL CIVIL APPLICATION

1. Heard learned advocates appearing for the respective parties. With consent of learned advocates appearing for the respective parties, petition is taken up for final hearing today.

2. By way of this petition, under Article 226 of the Constitution of India, petitioners - 3 in number have prayed for a writ of mandamus or a writ in the nature of mandamus or direction for quashing and setting aside the notification dated 04.01.2021 of the respondent no. 2 University for election of two members in the Executive Council to be elected from amongst the members of the Court of the University.

3. The case of the petitioners is that Section 15 of the Hemachandracharya North Gujarat University Act (‘the Act’ for short) provides for authorities of the University which includes the Court, the Executive Council etc. The elections to the Executive Council for two members ought not to be held as the Court constituted under Section 16 of the Act as 23 seats are vacant and 10 seats of nominated members is under dispute.

4. Mr. Hriday Buch, learned advocate for the petitioner would submit that there is no provision to publish a provisional list of voters. The Act envisages proportionate representation. He would draw the attention of the Court to Section 16 of the Act in light of the members of the University Court produced from pages 30 to 41of the petition. Relying on Section 16, Mr. Buch would submit that the Court should consist of ex-officio members and ordinary members. The present issue would be in context of the ordinary members. In accordance with Section 16(1)(II)(a) relating to ordinary members sub-clause (iv) would provide that one member other than teachers or Secondary teachers or Head Masters of the elected faculty wise by registered graduates in each of the faculties shall be part of the Court. Two members of the Gujarat Legislative Assembly would also be the members of the Court. Based on the constitution of the Court, election to the Executive Council is to be held under Section 19 of the Act where two persons are to be elected by the Court from amongst its members who are not teachers or members of the teaching staff of the University affiliated colleges. Taking the Court through the list of members of the University Court, Mr. Buch would submit that no elections have been held since 2012 under Section 16(1)(II)(A) of the Act. 10 seats of registered graduates from different faculties remain vacant. There is no representation of the student community after 2017. He would therefore submit that the electorate of the Executive Council i.e. the Court from which two members of the Executive Council had to be elected are vacant to the extent of 1/3rd inasmuch as 23 member seats are vacant. 10 seats in accordance with Section 16 of Deans is seriously in dispute as the nomination of such Deans is only been done on 04.01.2001.

4.1 Mr. Buch would further submit that the term of the Executive Council is for a period of three years and is to end in March 2021 despite which elections have been declared for 2 member seats as per Section 19(1)(vii) without filling in 23 member seats of the Court and the pending dispute of the Deans.

4.2 Inviting the attention of the Court to the list of students from Sr. nos. 84 to 100, Mr. Buch would submit that these nominations to the Court are not in accordance with Section 16. He would therefore submit that the election to the Executive Council cannot be held as not only the majority of the electorate which can contest for the elections of the Executive Council is vacant or no nominations have been made in the right spirit in accordance with Section 16 of the Act.

4.3 Mr. Buch would submit that the contentions of the respondents that the petitioner sh