DATE OF JUDGMENT:
10th February 2021
Justice J.B.Pardiwala, Justice Ilesh J. Vora
Dineshbhai Chhaganbhai Gamit(Petitioner)
Gujarat State Election Commission (Respondent)
In the following case, the rotation of the reserved seats for the forthcoming panchayat elections within the State of Gujarat. In other words, the grievance voiced is that the State committee has did not follow the Gujarat Taluka and District Panchayats Election (Manner of Allotment of Reserved Seats by Rotation) Rules, 1994, more particularly, the (Amendment) Rules, 2015.
1. The writ-applicant may be a resident and a registered voter. The said seat within the Tapi District Panchayat has been reserved for a Scheduled Tribe woman.
2. The case of the writ-applicant is that, the Chimer constituency is reserved for a lady of Scheduled Tribe past 20 years and no male member of Scheduled Tribe is in a position to contest the election from the said constituency.
3. The writ-applicant is desirous of contesting in the election from the said constituency but is not able to do so for the aforesaid reason.
4. Consistent with the writ-applicant, the State committee is empowered to prescribe the way of allotment and rotation of seats under the provisions of Article 243-D and Article 243-T respectively of the Constitution of India for the aim of elections of panchayats and municipalities respectively.
5. The Gujarat State committee, issued an order dated 24thJuly 2020 within the sort of guidelines to be followed for the aim of allotment of reserved seats.
The issue analyzed by the court –Whether this case involves a considerable question of law on the interpretation of the Constitution of India or any order made thereunder?
1. Article 226 of the Constitution: gives the power to High Courts to issue writs.
2. Article 243-T of the Constitution: provides reservation of seats.
1. Mr.Champaneri, the learned counsel appearing for the writ-applicant argued that the proposed order wasn't published and therefore the objections, if any, from the overall public weren't invited.
2. Mr.Champaneri prays that the impugned order at Annexure-G dated 9th September 2020 gone by the State committee be quashed and set-aside and therefore the State committee be directed to order the ST-4-Chimer constituency of the Tapi District Panchayat for Scheduled Tribe (General).
3. According to Ms.Patel, the counsel for the respondent this writ-application isn't maintainable in sight of the bar of Article 243-O of the Constitution of India.
4. According to Ms.Patel, the dispute is related to the allotment of seats for the forthcoming elections.
5. It is further argued that the writ-application is hit by the constitutional bar under Article 243-O of the Constitution ofIndia.
6. It is further argued that the validity of delimitation and allotment of seats made under Article 243-K of the Constitution of India can’t be questioned in any court.
7. According to Ms.Patel, no election to a panchayat can be questioned on any grounds except by way of an election petition.
8. According to Ms.Patel, the proper to contest election isn't a fundamental right, and in such circumstances, the writ-applicant cannot maintain a writ-application under Article 226 of the Constitution of India. it's argued that the proper to contest the election may be a right which flows from a statute, and as none of the elemental rights or the other legal rights of the writ-applicant might be said to possess been infringed, this writ-application isn't maintainable.
The grievance redressed altogether the writ-applications is that the rotational policy has been given a complete go-bye. It's conceded that the government has provided the reservation in accordance with law and therefore the allotment of seats is also in accordance with law. However, the seats aren't rotated in accordance with the principles. It's been acknowledged that in some cases past twenty years, there has been no rotation. It's argued that the rotational policy may be a safeguard against the likelihood of a specific office being reserved in perpetuity. We should always be mindful of the very fact that entertaining the challenge raised by the writ-applicants as regards the rotation of seats at the eleventh hour shouldn't hamper or delay the electoral process. Any interference at this stage by this Court shouldn't prevent the election to be held during this very month of February and such interference shouldn't cause challenge by the members of the opposite panchayats who might not be satisfied by the policy of rotation adopted by the Commission.
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