Point of Law: Democracy postulates that there should be periodical election, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representative. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice

JUDGMENT :

J.B.PARDIWALA, J.

“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” - Sir Winston Churchill

The Supreme Court, in the case of Mohinder Singh Gill and others vs. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851, quoted the aforesaid statement of Sir Winston Churchill with approval and thought fit to add the following to the aforesaid statement :

“If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For 'be you ever so high, the law is above you'.”

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the following reliefs :

“(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or prohibition or any other appropriate writ, order or direction and to quash and set aside the circular – Annexure-D dated 23.01.2021 bearing No.ELC-C.O.C.-3(7)- 012021-K issued by the Gujarat State Election Commission, so far as it relates to sr.no.8 in the schedule of programme by directing the respondents to keep uniform one date for counting of votes at the elections of the local bodies and/or to keep the date of voting and date of declaration of result as one and the same;

(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or prohibition or any other appropriate writ, order or direction and to restrain the respondents, their agents and servants from commencing the counting of votes at the elections of the municipal corporations on 23.02.2021 till and until the elections of the District Panchayats, Taluka Panchayats and Municipalities are over, by an appropriate writ, order or direction;

(C) Pending admission and final disposal of the present petition, be pleased to restrain the respondents, their agents and servants from fixing and keeping the different dates of counting in case of the municipal corporations, and different date of counting in case of the elections of the District Panchayats, Taluka Panchayats and the Municipalities;

(D) That this Hon'ble Court will be pleased to issue interim direction, directing the respondent no.1 to fix the date of counting in election of all the local bodies including the Municipal Corporations, District Panchayats, Taluka Panchayats and the Municipalities to one and uniform date, by way of interim direction, till and pending hearing and final disposal of this petition;

(E) Be pleased to pass such other and further orders as may be deemed fit and proper.”

2. The case put up by the writ-applicants may be summarised as under :

2(1) The three writ-applicants are residents of the Taluka Borsad, District Anand. The writ-applicant no.1 is the former President of the District Panchayat, Anand, and the writ-applicant no.2 is the former President of the Borsad Taluka Panchayat.

2(2) The subject matter of challenge in the present writ-application is the Circular issued by the State Election Commission dated 23rd January 2021, declaring the election programme for the ensuing elections to the 6 Municipal Corporations, 81 Municipalities, 31 District Panchayats and 231 Taluka Panchayats in the State of Gujarat.

2(3) The impugned Circular providing for the election programme reads thus :

“The State Election Commission has, on 23.01.2021, declared that the date of general election to the 6 Municipal Corporations of the State as well as the bye-election of two seats of the Junagadh Municipality is scheduled on 21.02.2021, whereas the date of general election to the 81 Municipalities, 31 District Panchayats and 231 Taluka Panchayats as well as to the seats remained vacant from time to time is scheduled on 28.02.2