Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 188

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, ILESH J. VORA, JJ.
DINESHBHAI CHHAGANBHAI GAMIT – Appellant
Versus
GUJARAT STATE ELECTION COMMISSION – Respondent
R/SPECIAL CIVIL APPLICATION NO. 1429 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 1860 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 1862 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 2092 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 13373 of 2020
Decided on : 10-02-2021

Advocates:
Advocate Appeared:
For the Appellant : MR KP CHAMPANERI, MR ANAND YAGNIK , MR CP CHAMPANERI, MR DHARMESH GURJAR, adv.
For the Respondent: MS ROOPAL PATEL, MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MS AISHVARYA GUPTA

Point of Law: The 'power of judicial review' is specially conferred on the Constitutional Courts, i.e. the High Courts and the Supreme Court, under Articles 226 and 32 of the Constitution, respectively.

Headnote:
Constitution (25th Amendment) Act, 1971 - Delimitation Commission Act - Section 8 or 9 - Gujarat Panchayats Act, 1993 - Section 11 - Constitution of India, 1950 - Article 226 and 243-O - Gujarat Taluka and District Panchayats Election (Manner of Allotment of Reserved Seats by Rotation) Rules, 1994 - (Amendment) Rules, 2015 - State Election Commission - Allotment/Rotation of seats - Whether writ-applications are maintainable ? Whether this Court has no jurisdiction to entertain present writ-applications under Article 226 of Constitution of India in view of bar under Article 243-O of Constitution of India? if writ-applications are held to be maintainable, then whether impugned notification issued by State Election Commission as regards allotment of seats could be said to be contrary to statutory provisions governing the same ?
Finding of the Court: Article 243-O of Constitution of India does not per se bar judicial review, which is part of basic structure of Constitution, although such jurisdiction should not ordinarily be exercised - Considering election programme as referred to above, court decline to enter into second issue having regard to time now left for holding elections and any interference at this stage would result in undue delay of election process - Rotation of seats is a complex process. Court are bound by Constitutional prohibition and should not, at this stage, undo rotation which has already been put into motion and on the basis of such rotation hundreds of people are going to contest elections in different categories allotted to them - It is settled principle that where there is an effective alternative remedy under the statute, High Court should not exercise its jurisdiction as a self-imposed restriction. In electoral matters, High Court observes self-impose limitations and declines to interfere with election process when once election notification is issued - As per amended provisions of amended rules, women are required to be prioritized in odd numbers. Considering roster from ST-25 and prioritizing women in odd number ST-4, Chimer Constituency should have been reserved for Schedule Tribe General. However, it is reserved for Schedule Tribe woman. Thus allotment of seats is made without following due process of law and that same has resulted into depriving petitioner from contesting election, in an arbitrary manner.
Result: Writ-applications rejected.

JUDGMENT :

J.B.PARDIWALA, J.

1. Since the issues raised in all the captioned writ-applications are the same, those were taken up for hearing analogously and are being disposed of by this common judgment and order.

2. In all the captioned writ-applications, the common grievance that has been voiced is with regard to the rotation of the reserved seats for the forthcoming panchayat elections in the State of Gujarat. In other words, the grievance voiced is that the State Election Commission has failed to follow the Gujarat Taluka and District Panchayats Election (Manner of Allotment of Reserved Seats by Rotation) Rules, 1994, more particularly, the (Amendment) Rules, 2015.

3. For the sake of convenience, the Special Civil Application No.1429 of 2021 is treated as the lead matter.

4. By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a resident of village Hindala, Taluka Songadh, District Tapi, and a member of Scheduled Tribe, desirous of contesting in the forthcoming Tapi District Panchayat elections, has prayed for the following reliefs :

“(A) This Hon'ble Court may be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or directions and be pleased to quash and set aside the impugned order, Annexure-G, dated 09.09.2020 passed by the respondent no.1 herein and further be pleased to direct the respondent no.1 to reserve ST-4, Chimer Constituency of Tapi District Panchayat for Scheduled Tribe General.

(B) This Hon'ble Court may be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or directions and be pleased to direct the respondent no.1 to follow the procedure prescribed under rules, Annexure-A, B and D, and publish a fresh order reserving ST-4, Chimer Constituency of Tapi District Panchayat for Scheduled Tribe General in the ensuing elections.

(C) Pending admission and hearing, this Hon'ble Court may be pleased to stay the implementation, operation and execution of impugned order Annexure-G, till and pending hearing and final disposal of present petition.

(D) Be pleased to pass such other and further reliefs, as the nature and circumstances of the present case may require;”

5. The case put up by the writ-applicant may be summarised as under :

5(1) The writ-applicant is a resident and a registered voter of the Hindala village of the Songadh Taluka. The said village is a part of the 4-Chimer constituency. The said seat in the Tapi District Panchayat has been reserved for a Scheduled Tribe woman.

5(2) It is the case of the writ-applicant that the Chimer constituency is reserved for a woman of Scheduled Tribe past 20 years and no male member of Scheduled Tribe is able to contest the election from the said constituency. The writ-applicant is desirous of contesting the election from the said constituency but is unable to do so for the aforesaid reason.

5(3) It is the case of the writ-applicant that in exercise of powers conferred by sub-section (5) of Section 274 read with sub-section (5) of Section 10 and sub-section (5) of Section 11 of the Gujarat Panchayats Act, 1993 (for short, 'the Act 1993'), the Government of Gujarat has framed the rules, namely, the Gujarat Taluka and District Panchayats Election (Manner of Allotment of Reserved Seats by Rotation) Rules, 1994 (for short, 'the Rules 1994'). By Notification dated 5th August 2015, these rules came to be amended by way of the Gujarat Taluka and District Panchayats Election (Manner of Allotment of Reserved Seats by Rotation) (Amendment), Rules, 2015.

5(4) It is the case of the writ-applicant that the provisions of the amended rules have not been followed by the State Election Commission while passing the final order of allotment of reserved seats of the Tapi District Panchayat. In other words, the allotment is contrary to the a

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2021 Supreme(Guj) 188

Point of Law: The 'power of judicial review' is specially conferred on the Constitutional Courts, i.e. the High Courts and the Supreme Court, under Articles 226 and 32 of the Constitution, respectively.

Cases Referred (23)