(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. This matter, which was on board today, was mentioned in the morning for urgent hearing. Learned senior advocate Mr.D.C.Dave appearing on caveat for respondent university, learned advocate Mr.Manan Shah for Mr.Dinkar C.Naik and learned advocate Mr.V.K. Bhatiya for Mr.Naishadbhai Bhupatbhai Desai jointly requested that matter be taken up for hearing by the court at 2.30 p.m., and the request was accepted.
2. Heard learned Senior Advocate Mr.M.J.Thakor with Mr.Tarak Damani for the petitioner. Learned Senior Advocate seeks permission to amend the petition HC-NIC Page 1 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 2/14 ORDER and implead Mr.Naishadbhai Bhupatbhai Desai and Mr.Dinkar C.Naik as party respondents. Permission is granted. Learned Senior Advocate also requested to permit him to amend the prayer clause. The permission is granted.
3. Having heard all parties, we find that the matter requires consideration. Hence Rule. Learned advocates for respective parties waive service of Rule. All the parties are heard on the question of interim relief.
4. The present petition is filed by the petitioner challenging the rejection of his nomination/ candidature on the basis of the objections raised by one Mr. Anuj U. Shah. Copy of the said objection is placed at Annexure-D. On the basis of the said objections filed by Mr.Anuj U.Shah, an order is passed recording that all the candidature/ nomination forms of Dr.Mahendrasinh D.Chauhan (petitioner) are rejected. A copy of candidature form is placed at Annexure-E; wherein also, the Authority has recorded an order to the effect that pursuant to objections filed by Shri Anuj U.Shah all the candidature forms of Dr.Mahendrasinh D.Chauhan, the petitioner, are rejected.
5. Learned Senior Advocate for the petitioner submitted that the decision was taken by the Scrutiny Committee for Election of the Senate on 4.8.2012 at 5.30 p.m. The petitioner made an application to the Vice Chancellor of the University on the same day i.e. HC-NIC Page 2 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 3/14 ORDER 4.8.2012 at 8.45 p.m., a copy of which is produced at page No.29.(Annexure-F-Colly.). He made another application to the Vice Chancellor at 9.45 p.m. and as he did not hear anything, the petitioner made another application to the Registrar on the same day at 10.05 p.m. for supplying a copy of the rules / law as applicable, the objections and the decision of the Scrutiny Committee. The present petitioner filed the appeal under Statute 259(B) before the Vice Chancellor which was received in the office of the Vice Chancellor on 4.8.2012. The said appeal is dismissed and that decision of dismissal of his appeal is communicated by communication dated 6.8.2012, a copy of which is produced at Annexure-H. The said communication, which is in Gujarati, reads to the effect that :- the petitioner had filed nomination, for election of a senate member under Section 16(1), Class-II Ordinary members (C), in the Electorate Division of 'Donors' was rejected by the Scrutiny Committee and the appeal filed against that, before the Vice Chancellor, under Statute 259, is not accepted. The said communication is under the signature of the Registrar.
6. Learned Senior Advocate invited attention of the Court to Section 16, of the Veer Narmad South Gujarat University Act, 1965, which provides for the Constitution of the Senate. Sub-section (1) of Section 16 provides for Class-I - Ex-officio members. The petitioner is not concerned with that. The petitioner is concerned with the provisions regarding Class-II, Clause (C), the relevant part of which, reads as HC-NIC Page 3 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 4/14 ORDER under:-
"(c) Two members to be elected by the donors in the manner specified below from amongst themselves each donating money or property of the value of not less than one lakh of rupees to, or for the purposes of, the University:
(i)If the donor is an individual, for the purpose of voting the name of each such donor shall be enrolled on the register maintained by the University.
(ii) If the donor is an undivided Hindu family, trust, firm, company or body corporate, for the purpose of voting, the name of the representative nominated from time to time by each such undivided Hindu Family, trust, firm, company or body corporate shall be enrolled on the register maintained by the University.
(iii)...
(iv)....
(2) ....."
7. It is the case of the petitioner that a Trust named Shri Ambika Niketan Trust- Vrudhashram Ananddham has nominated the present petitioner as its representative and his name is included at Sr.No.26 in the list of Voters titled as, 'Electoral Roll of the Donors'.
8. Learned Senior Advocate for the petitioner has submitted that the present is a case, wherein, a calculated method is coming out on record so as to eliminate the candidature of the petitioner. He submitted that the Scrutiny Committee decided to reject the nomination of the petitioner on 4.8.2012. Despite the request for supplying the copy of the said decision more than once the same was not supplied in time. Independently, the petitioner filed an appeal on the same day i.e. on 4.8.2012. That appeal came to be rejected and it was communicated to the petitioner by communication dated 6.8.2012 at Annexure-H to this petition.
9. Learned Senior Advocate Mr.Dave, appearing on caveat, for the University claims that a notification is already issued by the University declaring Res. No:4 and 5 elected uncontested. The submission of the learned advocate representing the University is that the said notification was published and placed on the Notice Board on 6.8.2012 at 4.00 p.m. Learned Senior Advocate states that the dismissal of the appeal was communicated to the petitioner around 5.00 p.m. but in any case, after the aforesaid notification was placed on the notice board. Learned advocate for the University made available the copy of the said notification for perusal of the court and then placed a copy thereof on record of this case. What is important is that, the notification which is issued by the statutory body like Veer Narmad Sourth Gujarat University does not bear any date. Learned advocate for the University did take instructions on the HC-NIC Page 5 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 6/14 ORDER telephone and it is stated before the Court that it appears that inadvertently, the date is not mentioned in the said notification but he has reiterated that this notification was published on the Notice Board at around 4.00 p.m. On 6.8.2012. What is coming out of this notification is interesting. By this notification, the University has declared the candidates from the donors constituency as uncontested and they are respondent Nos. 4 and 5 herein. It was vehemently argued by learned Senior Advocate Mr.Y.N.Oza and Mr.R.R.Marshal for these candidates that they are not impleaded as party respondents in this petition. According to us, the reason for this is obvious, that this notification is confronted to the senior advocate for the petitioner only in the Court room and therefore, the Court can understand that the petitioner is not able to implead them as party respondents and learned advocate for the petitioner therefore sought permission to join them as party respondents, which this court has granted. Learned Senior Advocate Mr.Y.N.Oza and learned Senior Advocate Mr.R.R.Marshal both are heard for respondent Nos. 4 and 5.
10. What is interesting is that at the time of filing of the candidature/ nomination, as against two posts, there were total 5 candidates as can be seen from the proceedings of the Scrutiny Committee, a copy of which is produced at page No.28. These five persons are:-
1. Shri Anujbhai U. Shay (67) HC-NIC Page 6 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 7/14 ORDER 2. Dinkar C.Naik (49) 3. Kashyap K.Mehta (47)
4. Shri Naishanbhai Bhupatbhai Desai (9)
5. Dr.Mahendrasinh D.Chauhan (26)
11. Out of these five, No.1, who filed objections against the nomination of the present petitioner withdrew his nomination on 6th August, 2012 and similarly, the person at serial number 3 also withdrew his nomination on 6th August, 2012. Candidature of the petitioner is rejected, thus it left behind only two candidates and they are claimed to have been declared elected uncontested on 6th August, 2012.
12. Attention of the Court is invited to the contents of the objections filed by one Shri Anuj U.Shah and it is found that objections are on the face of it lacks bona-fide inasmuch as in those objections deliberately misinterpretation of the relevant provisions of law is put forward and surprisingly accepted not only by the Scrutiny Committee of the University but is also accepted by the Vice Chancellor which resulted into dismissal of the appeal. On these facts, this Court has no hesitation in coming to the conclusion that there is a calculated method which is supported by the Authorities, eliminating the candidature of the petitioner and ultimately frustrating the entire democratic process. This court is therefore of the opinion that, the petitioner has a strong prima facie case in his favour and the balance of convenience is to be weighed accordingly. We also find that non interference by this court at this HC-NIC Page 7 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 8/14 ORDER stage, would be of being mute spectator to the defiance of the democratic process and on the other hand, the interim order which this court proposes to pass, would only take the democratic process further.
13. This Court on totality of the facts of the case is also of the opinion that present is a case, wherein, there are exceptional and extraordinary circumstances, warranting interference.
14. Even at the cost of repetition, it is required to be stated that in the present case, Scrutiny Committee, taking into consideration the objections filed by one Shri Anuj U.Shah, rejected the nomination of the petitioner on 4.8.2012 and the said decision was made available to the petitioner until 10.05 p.m. Petitioner filed an appeal before the Vice Chancellor and that appeal is communicated to have been dismissed by communication dated 6.8.2012. But before that dismissal communication reaches to the petitioner, two other candidates including one objector withdrew their nominations and thus, put the petitioner in a position wherein he is rendered remediless. The result of the donors constituency is stated to have been declared by notification which is claimed to be of 6.8.2012. Thus, not only Scrutiny Committee was led to cancel the nomination of the petitioner but the design was so perfect that two of the candidates withdrew their nomination and remaining two were got declared elected uncontested.
15. At this juncture, it is necessary to mention HC-NIC Page 8 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 9/14 ORDER that, when it was inquired from learned advocate for the University as to what weighed with the Vice Chancellor in dismissing the appeal of the petitioner, Learned advocate for the University has produced a xerox copy of the order stated to have been recorded by the Vice Chancellor in that regard, a copy of which is not given to the petitioner. Again the said document, which is produced before this Court and which is titled as 'An order on appeal filed by Dr.Mahendrasinh U.Chauhan under Statute 259 of Veer Narmad South Gujarat University Act' and which is under the signature of the Vice Chancellor of the University, does not bear any date. On perusal of the document, the Court inquired from learned advocate Mr.Dave as to what is the date of this document and learned advocate for the University has also not been able to find out any date on the said document and submitted that there may be date on the file. These aspects further strength the case of the petitioner, and these documents, are ordered to be kept in safe custody.
16. One can understand if the hasty actions of the Authorities are to enhance the democratic value or to lead to democratic elections between the candidates. But the Court has to record with pain that, in the present case not only the Authorities have acted in a manner which has scuttled down the democratic process but has also tried to see that the petitioner remains totally remediless.
17. Learned advocates appearing for private HC-NIC Page 9 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 10/14 ORDER
respondents did mention that in the present case, the petitioner happens to be a teacher in Medicine and once that constituency of teachers (Medicine) is already represented by other two representatives, University and the Vice Chancellor must have thought proper not to give him an opportunity to represent the donors constituency. If that is so, there has to be a law to that effect and in absence of any provisions of law for the purpose, the Authority cannot be allowed to act on personal whims or personal interpretation of the law.
18. Learned Senior Advocate Mr.Y.N.Oza for Res.No:5 vehemently submitted that this petition is not maintainable in the present form. He submitted that the present petition is filed under Article 226 of the Constitution of India invoking the fundamental rights under Article 19(1)(G) of the Constitution of India. He submitted that the present petition is in the nature of election petition and it is settled law that in the matter of election petition, if necessary party is not joined or impleaded, the election petition must fail only on that short ground. Learned senior advocate further submitted that there is a settled law, more particularly, on the question of interpretation of Section 58 of the Gujarat University Act, which will be squarely applicable to the facts of the present case. Section 69 of the Vir Narmad South Gujarat University Act, according to him, is verbatim the same. Learned Senior Advocate invited the attention of the Court to the judgement of the Supreme Court of India in the case of Gujarat University v/s HC-NIC Page 10 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 11/14 ORDER N.U.Rajguru 1987 (Supp) SCC 512. He has referred to para 5 and 6 of the said judgment, of which paragraph No.6 is quoted for the ready reference:
"It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination A of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein......."
19. On the other hand Learned senior advocate for the petitioner invited attention of the Court to the decision of the Apex Court in the case of Election Commission of India V/s. Ashok Kumar and others reported in (2000) 8 SCC 216. Observation made by the Apex Court in paragraph No.28 are very relevant and therefore, they are produced herein under for ready reference:
"28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of over- enthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes......."
20. Para:32 of the said judgement, more particularly sub-para(2) is also relied by the learned HC-NIC Page 11 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 12/14 ORDER advocate for the petitioner.
21. Learned senior advocate also invited attention of the Court to another decision of the Hon'ble the Apex Court in the case of Pundlik V/s. State of Maharashtra and Others reported in (2005) 7 SCC 181; wherien, the Hon'ble Apex Court was pleased to observe in para-16 as under:
"In the instant case, respondent Sangh had taken immediate action on receiving the fax message from respondent No.2 - Collector. As per the said communication by the Collector, an action could be taken for change of representative of respondent Sangh latest by June 10, 2005. A meeting was, therefore, convened by issuing an agenda to that effect by respondent Sangh on June 2, 2005............... The ground put forward for rejecting the resolution was not correct inasmuch as in the agenda notice issued by respondent - Sangh dated June 2, 2005, subject No.7 had clearly been mentioned and in pursuance of the said agenda notice, a meeting of the Managing Committee of respondent - Sangh was convened and a decision was taken. The grievance of the appellant, therefore, was justified that by not effecting the change and by ignoring the resolution passed by the Managing Committee of respondent Sangh the Collector has acted contrary to law........"
22. In the present case also, the decision of the Scrutiny committee which was taken on 4.8.2012 was made available to the petitioner very late. The appeal was immediately filed and it was so designed by the respondents that by the time the decision of dismissal of appeal is conveyed to the petitioner, two of the candidates withdrew their candidature and a notification is claimed to have been hurriedly placed on the Notice Board the University at 4.00 p.m. On 6.8.2012, declaring remaining two candidates elected uncontested. Be it noted that the election is otherwise scheduled on 12.8.2012.
HC-NIC Page 12 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 13/14 ORDER
23. Learned counsel for the petitioner has also relied on the decision of the Division Bench of this court in case of Dilipbhai Nathvani v/s state of Gujarat in Special Civil Application No: 17954 of 2011 and cognate matters.
24. Learned senior advocate, for the purpose of pressing for interim relief, also invited attention of the Court to another decision of the Hon'ble the Apex Court in the case of Deoraj v/s State of Maharastra reported in (2004) 4 SCC 697.
25. Considering the totality of the facts and peculiarity of the case, this Court is of the view that, there cannot be any more calculative way of scuttling the democratic process by not only eliminating the candidature of the petitioner but also non suiting him. This Court is further of the opinion that if the Court does not entertain this petition and does not grant the relief as prayed for, in the present situation, it will amount to miscarriage of justice, to which this Court would not like to be a party. As noted above, we also find that non interference by this court at this stage, would be like being mute spectator to the defiance of the democratic process and on the other hand, the interim order which this court proposes to pass, would only take the democratic process further.
26. Hence by way of interim relief, the rejection of the nomination form of the petitioner, as well as, the effect and operation of the undated document, HC-NIC Page 13 of 14 Created On Fri Aug 21 00:55:55 IST 2015 SCA/10819/2012 14/14 ORDER which is claimed to be the result notification, purported to be of 6.8.2012, which is produced before this court, is stayed, and the University, the respondent Vice Chancellor and Registrar, are directed to include the name of the petitioner as a candidate, in the ballot paper, along with the names of respondent Nos. 4 and 5, and are further directed to send the Ballot Papers to all the voters and to proceed with the election, as scheduled.
27. The present order is passed in presence of learned counsel for all the parties, including learned counsel of the University, who has appeared on caveat and it is expected that authorities will act according to directions given by this order.
Direct service permitted.
(RAVI R.TRIPATHI, J.) (PARESH UPADHYAY, J.) (ashish) HC-NIC Page 14 of 14 Created On Fri Aug 21 00:55:55 IST 2015