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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, ILESH J. VORA, JJ.
Jagdish Bulchandbhai Mohnani – Appellant
Versus
Tamanna H. Jhalodia or her Successor in Office – Respondents
R/SPECIAL CIVIL APPLICATION NO. 4193 of 2021
Decided on : 08/03/2021
General Clauses Act, 1897 - Section 21 - Gujarat Provincial Municipal Corporations Act, 1949 - Bombay Provincial Municipal Corporations (Conduct Of Election) Rules, 1994 - Rules 82, 6, 8 to 10, 13, 15, 16, 18, 50 to 53 and 60 to 69 - Election by State Election Commission - Appointment of returning officers and assistant returning officers - Counting and scrutiny of votes - Removal of difficulties - Case of writ applicant that counting had taken place in presence of candidates as well as polling agents - On completion of counting, writ applicant was declared as elected along with three other candidates - Impugned order revealed that writ applicant was wrongly declared as returned candidate in election - Whereas, according to respondent No.1, it is respondent No.4, who, actually, won election by securing higher votes - Impugned order further reveals that as it was an arithmetical error committed by Returning Officer in declaring results of election, same was later rectified in exercise of power under Section 21 of Act, 1897 - Whether same could have been altered or changed, in any manner, by the Returning Officer - whether respondent No.1 committed any error in passing the impugned order.
Finding of the court: It is well-settled legal position that prerogative writs under Article 226 of Constitution can be issued only in grave cases where subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of jurisdiction, or in violation of principles of natural Justice, or refused to exercise jurisdiction vested in them, or there is error apparent on face of record which has resulted in manifest injustice - It is evident that election comes to an end on declaration of result of election, i.e., when certificate is issued to a particular candidate declaring him successful. Thus, in instant case election had come to an end moment certificate was issued in favour of petitioner and all subsequent proceedings taken by Returning Officer are without any authority/competence - Returning Officer had no jurisdiction in the matter. Court are declining to interfere in matter in view of the fact that alleged declaration in favour of writ applicant was not in accordance with law, and therefore, no relief should be granted under the writ jurisdiction of this Court.
Result: writ application rejected.
JUDGMENT :
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
(B) Your Lordships may be pleased to issue a writ of mandamus and/or certiorari and/or any other appropriate writ, order or direction in the nature of mandamus and/or certiorari quashing and setting aside the impugned order No.ELC/MND/S.U./Kubernagar/314/Counting of Votes 2021, dated 25.02.2021 (Annexure-A) and served on the petitioner at 2.30 a.m. on 26.02.2021 and be further pleased to declare that respondent No.1 is not competent to pass order of declaring the petitioner as defeated candidate, after declaration of results.
(C) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to stay the execution, operation and implementation of the impugned order No.ELC/MND/S.U./Kubernagar/314/Counting of Votes 2021, dated 25.02.2021 (Annexure-A) and served on the petitioner at 2.30 a.m. on 26.02.2021.
D) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to restrain respondent No.4 herein – Gitaben Vishalsinh Chavda from acting as a Corporator and permitting the petitioner to act as the Corporation for Ward No.14 of Kubernagar, Ahmedabad city as per the results declared on 23.02.2921 and as per the certificate issued under Form No.22 under Rule 68 of the Rules of 1994 in favour of the petitioner (Annexure-C).
(E) Such other and further orders as Your Lordships may deem just, fit and expedient be passed in favour of the petitioner.”
For the convenience of exposition, this judgment is divided into the following parts:
| Sr.No. | Description | Paras |
| 1 | Facts giving rise to this writ application | 2 to 5 |
| 2 | Submissions on behalf of the writ applicant | 6 to 12 |
| 3 | Submissions on behalf of the State Election Commission | 13 to 17 |
| 4 | Submissions on behalf of the Returning Officer | 18 to 20 |
| 5 | Submission on behalf of the respondent No.4 | 21 to 23 |
| 6 | Relevant provisions of the Gujarat Provincial Municipal Corporation Act, 1949 and (Conduct of Election) Rules, 1994 | 25 |
| 7 | Analysis of the (Conduct of Election) Rules, 1994 | 26 to 33 |
| 8 | Certificate of Election issued in Form 22 under Rule 68 of the Rules | 34 |
| 9 | True English translation of the impugned order | 37 |
| 10 | Discussion on Section 21 of the General Clauses Act, 1897 | 38 to 58 |
| 11 | Discussion on Rule 82 (Removal of Difficulties clause) of the Rules, 1994 | 59 to 62 |
| 12 | Few decisions supporting the submissions canvassed on behalf of the respondents | 63 to 69 |
| 13 | Final conclusions summarized | 76 |
2. The facts giving rise to this writ application may be summarized as under:
2.1 The writ applicant was one of the candidates, who contested the election to the Ahmedabad Municipal Corporation held on 21st February 2021. The respondent No.4 herein namely Gitaben Vishalsinh Chavda was one of the rival candidates in the election.
2.2 The writ applicant contested the election as a candidate nominated by the 'Indian National Congress Party'. Whereas, the respondent No.4 contested the election as a candidate nominated by the 'Bhartiya Janta Party'. The writ applicant as well as the respondent No.4 contested the election from the Kubernagar Ward No.14, Ahmedabad city.
2.3 The date for counting was fixed on 23rd February 2021. The respondent No.1 was appointed as the Returning Officer under Rule 4 of the Gujarat Provincial Municipal Corporations (Conduct of Election) Rules, 1994 (for short, “the Rules of 1994”). The writ applicant had appointed 10 of his polling agents as there were 10 rounds of counting.
2.4 It is the case of the writ applicant that the counting had taken place in the presence
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