Point of Law: Election - Conducted through ballot paper instead of EVM in absence of VVPAT Petition has been filed without any logic and justification - No foundation has been laid as to why EVMs be not used - Election of entire State of local bodies which is already decided as per law to be held by EVMs for last 20 years since 2001 cannot suddenly be converted into a manual mode by using ballot papers.

JUDGMENT :

VIKRAM NATH, J.

1. We have heard Shri K.R.Koshti, learned counsel for the petitioner, Shri Mihir Joshi, learned Senior Advocate assisted by Ms.Roopal Patel, learned counsel for respondent No.1 – State Election Commission and Ms.Manisha Lavkumar, learned Government Pleader assisted by Ms.Aishwarya Gupta, learned Assistant Government Pleader for the State respondent Nos.2 and 3.

2. By means of this petition under Article 226 of the Constitution framed as a Public Interest Litigation, the petitioner who alleges himself to be a practicing Advocate at Ahmedabad and also being a Social Activist has prayed for the following reliefs :

“(a) Your Lordships may be pleased to allow the present writ petition (PIL);

(b) Your Lordships may be pleased to issue a rate of mandamus or any other appropriate writ / direction / order to hold the action or inaction on the part of the respondent No.1 herein in not declaring or making announcement that the due election of the local bodes in the State of Gujarat will be conducted through ballot paper instead of Electronic Voting Machine since they don’t have VVPAT;

(c) Your Lordships may be pleased to pass appropriate writ, order or direction to quash and set aside the action of the respondent No.1 herein in not declaring or making announcement that due election of the local bodies in the State of Gujarat will be conducted through ballot paper instead of Electronic Voting Machines in absence of VVPAT machines with the State Election Commission;

(d) Your Lordships may be pleased to pass appropriate writ, order or direction directing Respondent No.1 to conduct the due elections of the local bodies of Gujarat State through ballot paper instead of Electronic Voting Machine in absence of the respondent No.1 doe not have VVPAT machines;

(e) Your Lordships may be pleased to pass suitable order/writ/direction and direct the respondent No.1 to submit the status report with regard to the representation filed by petitioner dated 1st January, 2021 in the interest of justice;

(f) Any other order in the interest of justice and equity;”

3. The petition is dated 12.01.2021, which was registered on 21.01.2021 and circulated before the Court on 27.01.2021 when the first order was passed. The said order reads as follows :

“We have heard Mr.K.R.Koshti, learned counsel for the petitioner and Ms.Manisha Lavkumar, learned Government Pleader assisted by Ms.Aishvarya Gupta, learned Assistant Government Pleader appearing on advanced copy on behalf of respondent Nos.2 and 3.

2. Issue Notice returnable on 10.02.2021. Ms.Gupta waives service of notice on behalf of respondent Nos.2 and 3.

3. In the meantime, learned Government Pleader to obtain instructions from the State respondent and file affidavit, if required.

List in the top ten cases.

Direct service is permitted.”

4. Thereafter, the matter was taken up on 10.02.2021 when the following order was passed :

“1. Today, Ms. Roopal R. Patel, learned advocate, has appeared on behalf of the State Election Commission, State of Gujarat (respondent No.1). She has prayed for at least a week's time to file reply on behalf of the Commission. This request has been strongly opposed by Shri K.R. Koshti, learned counsel for the petitioner, on the ground the polling is scheduled for 21.2.2021, some date may be fixed much before that, so that the matter can be heard, otherwise it would be rendered infructuous.

2. Considering the nature of the request made, let this matter be listed on 15.02.2021. In the meantime, Ms. Patel may make an effort to file affidavit.

3. Mrs. Manisha Shah, learned Government Pleader assisted by Ms. Aishwarya Gupta, learned Assistant Government Pleader, are present for the State respondent Nos.2 and 3. She states that the State- respondent Nos.2 and 3 do not propose to file any affidavit-in-reply.”

5. Thereafter, on 18.02.2021, the learned counsels for the respective parties were heard and orders were reserved.

6. We may record here that Shri K.R.Koshti, learned counsel for the