KANCHANLAL BRIJLAL PATEL Vs. KEKI RUSTOMJI DAVAR
HIGH COURT OF GUJARAT
KANCHANLAL BRIJLAL PATEL
KEKI RUSTOMJI DAVAR
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N. H. BHATT -
(1.) . The powers of the District Court dealing with an election petition are to be found in Sec. 14 of the Gujarat Municipalities Act. Sub-section (5) deals with various grounds regarding the existence of which the Judge being satisfied the Judge may set aside the election. Certainly the non-compliance with the provisions of Sec. 7(2) of the Act does not fall in any of those Grounds there. This brings me to sub-sec. (7) of sec. 14 of the Act which is reproduced below:
" (7) If the validity of the election is brought in question only on the ground of any error by the officer or officers charged with carrying out the rules made under sub-sec. (5) of sec. 6 or of an irregularity or informality not corruptly caused the Judge shall not set aside the election. Explanation :- The expression error in this clause does not include any breach of or any omission to carry out or any non-compliance with the provisions of this act or the rules made thereunder whereby the result of the election has been materially affected." Obviously sub-sec. (7) deals with the Rules made under sub-sec. (S) of sec. 6 or the Rules made under Sub-Sec. (6) of sec. 9(C). Under sec. 6(5) the Rules are regarding the conduct of the election and we have got the rules made under this provision styled as The Gujarat municipalities Election Rules 1964 These rules start with the maintenance and custody of the lists of voters and with gazetting of results of elections. Obviously the Governments duty not to disturb the wards in sec. 7(2) of the Act is not covered by that provision. Similarly the rules under sec. 9(c)(6) also pertain to lists of the voters to be prepared in the prescribed manner and obviously they also cannot have reference to the requirement of sec. 7(2) of the Act. What remains in sub-sec. (7) of sec. 14 is an irregularity or informality not corruptly caused. In the present case sec. 7(2) of the Act will not be attracted because it is not even the allegation that the alleged irregu- larity or informality was corruptly caused. The Explanation appended to sec. 7 explains what an error can possibly be but we are not much concerned with that because that error in its turn is referring to the error committed by the officer or officers charged with carrying out the rules made under the above two provisions. It is therefore not at all difficult to say that the question raised in this petition regarding non-compliance with the requirement of sec. 7(2) is not covered by sec. 14 of the Act and the Election Tribunal will not be competent to deal with this question while trying an election petition filed before it under sec. 14 of the Act. If it be so the preliminary objection raised before me by the Municipality as well as the successful candidates cannot stand. The question however is whether the non-compliance with the negative requirement of sec. 7(2) of the Act can go to vitiate the election. To me it appears that for want of any legal provision in that regard the general principles of law evolved by judicial precedents should be a guiding factor- There may be cases where the non-compliance with the requirement of sec. 7(2) may be so extensive as to lead to an irresistible inference that the election itself has become polluted. The possible situation arising out of such large scale reshuf- fling of wards cannot be ruled out. At the same time it is to be noted with pertinence that peripheral changes made here or there though in violation of the requirement of law cannot be allowed to upset a costly and elaborate procedure of an election. In other words it shall be for the petitioner under Article 226 of the Constitution of India before the High Court to show that non-compliance with the requirement of sec. 7(2) of the Act is such as has factually resulted into vitiating the election. Let us see whether the petitioners of this case have been able to make good their case in this respect. The petitioners in their petition have not alleged that the above mentioned changes made in the constitution of Wards Nos. 4 6 & 7 have been so sweeping as to make the subsequent voters lists and the election process a mockery. They have not said so either expressly or by plausible implication. All that has been stated is that the result of these wards can be said to have been materially affected and for that purpose Annexure-H was brought to my notice. In Ward No. 4 there were four contestants who respectively got 581 472 439 & 424 votes. As there were two seats in the Ward the first two of these four contestants were elected. Between the second successful candidate and first unsuccessful candidate there is a difference of 33 votes and there is difference of 48 votes between him and the fourth-contestant. I fail to understand how the addition of houses in the wards and therefore consequential addition of some voters in the voters lists can be said to have in any way affected the result of this ward. If new houses were added and thereby new voters were added they were available for all the four contestants. It is not the say of the petitioners that the successful candidates of that ward succeeded only because of the addition of the votes. I would reiterate that unless material prejudice is shown to have been caused because of non-com- pliance with some requirement in the pre-election stage or the electoral stage the intricate costly and elaborate election should not be set at naught. It is to be noted that except the petitioners Nos. 11 & 12 other petitioners had contested elections At Annexure-H giving names of all contestants in the election their names do not appear. So they it seems were not accepted as candidates.
(2.) . Coming to the ward No. 6 we find that there were three contestants out of which two contestants got elected by getting 696 and 670 votes as against 502 votes obtained by the unsuccessful candidats. The unsuccessful candidate does not make any grievance before this Court. What I have stated above with respect to the Ward No. 4 would equally apply to this Ward also. In the Ward No. 7 Hiralal Modi was elected-on the general seat by securing 1506 votes whereas Gaurang Patel secured 421 votes the margin of difference being 1085 votes. The second seat was reserved for Scheduled Tribe Candidate. The successful candidate got 1407 votes as against 265 votes procured by his counter- part. Similarly. the third seat was reserved for a woman candidate. One Sumanben secured 1449 votes whereas her rival candidate got only 313 votes the margin of difference being 1138 votes. In Ward No. 7 only 82 houses were added but there was corresponding removal of the huts also. Here also it cannot be said that any material prejudice had been caused even conceivably.
(3.) . In above view of the matter I reject this Special Civil Application by discharging the rule with no order as to costs. Petition dismissed.;
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