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SCA/4841/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4841 of 2011
======================================
RAJESHBHAI
DOLATRAI DESAI - Petitioner
Versus
ELECTION
OFFICER, CHALTHAN VIBHAG KHAND UDYOG SAHKARI & 1 - Respondents
======================================
Appearance
:
MR DIPEN A
DESAI WITH MR
DILIP B RANA for Petitioner.
MS MONALI BHATT, AGP for Respondent
No.1.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 26/04/2011
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE D.H.WAGHELA)
Although
notice was issued for final disposal and hearing has thereafter been
adjourned twice, no reply is filed on behalf of respondent No.1 and
respondent No.2 has not even cared to appear, though served.
The
petitioner is aggrieved by order dated 13.04.2011 of the Election
Officer, appointed for conducting election of Chaltan Vibhag Khand
Udyog Sahkari Mandli Limited, which is a specified society and the
Officer also happens to be Deputy Collector at Bardoli. Even as
election programme for the election as aforesaid to the Board of
Directors of the specified society is declared on 21.03.2011 and the
petitioner had filed his nomination for standing as a candidate at
the election, respondent No.2 had raised objection against the
petitioner’s candidature. According to the impugned order, the only
objection raised by the objector was that the petitioner was serving
as a Teacher in a school which was receiving grant from the
Government. It was only on that ground that the objector requested
to allow or disallow nomination of the petitioner.
Surprisingly,
the Election Officer has, instead of calling upon the objector to
substantiate his objection by citing any legal provision, called
upon the petitioner to obtain No Objection Certificate from the
District Education Officer, Surat. Then, making an opportunity
given to the petitioner a ground and relying upon wholly irrelevant
reports received from District Registrar and District Education
Officer and relying upon a wholly irrelevant Notification dated
09.03.2006 furnished by the Education Officer, the petitioner was
held to be not entitled to contest the election. Although the
impugned order is concluded with a statement that the objection of
respondent No.2 was accepted and upheld in view of legal provisions,
no legal provision is in fact mentioned or cited either in the
impugned order or in defence of the impugned order by learned
Assistant Government Pleader. Thus in short, apparently perverse
order has been made without support of any legal provision, to keep
the petitioner out of the election. Prima facie, this is
unbecoming of an Election Officer who is supposed to discharge his
functions impartially and in accordance with law so as to ensure a
fair election. Under such circumstances, it was vehemently argued
by learned Counsel Mr. Dipen Desai that the petitioner may be
directed to be included in the list of candidates and the ballot
papers so as to save the election from apparent irregularity. He
further submitted that although the petitioner would be hardly left
with any time to canvass for himself, he would take the risk of
contesting the election with such handicap.
Learned
Assistant Government Pleader made a feeble attempt at defending the
impugned order with the only submission that the petitioner was
given an opportunity of being heard and further submitted that it
would be highly improper and impractical for the Election Officer to
now include the name of the petitioner either in the list of
candidates or in the ballot papers.
There
was no dispute about the fact that the date of voting being round
the corner on 30.04.2011, it would be extremely difficult, if not
impossible, to amend or reprint the ballot papers so as to allow the
petitioner to contest the election at this stage. Even otherwise,
it would be improper for the Court to interfere with the process of
election at this stage. Therefore, while holding that the impugned
order dated 13.04.2011 is perverse and not supported by any legal
provision, and deprecating the manner in which the Election Officer
has conducted himself to oust the petitioner from the fray with
intervention by the District Registrar Surat, we have to dismiss the
petition with liberty to the petitioner to take appropriate
alternative remedy after conclusion of the election process.
It
is hoped that if and when the petitioner challenges the election by
an appropriate petition, his petition shall be heard and decided in
accordance with law as expeditiously as practicable. With this
observation, the petition is dismissed with liberty to the State
Government to take disciplinary actions and appropriate steps for
preventing repetition of such waste of public resources by its
Officers including the District Registrar concerned, appointed to
ensure fair election.
Sd/-
[D. H. WAGHELA, J.]
Sd/-
[K. A. PUJ, J.]
Savariya
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