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Chauhan Husainbhai Alibhai Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR1515
AppellantChauhan Husainbhai Alibhai
RespondentState of Gujarat and ors.
Excerpt:
- .....term of the elected members of panchayat expired on december 31, 1982. thereafter they could have held office only if the term was extended by government as per the provisions of the statute. when the term is extended by the government, the action of the government reflects the will of the people. in democracy. government acts through the elected representatives of the people. government officers and ministers are accountable to the people. even if election cannot be held for technical reasons or for any other valid reasons, the persons in position of power have no legitimate democratic right to continue in office. such persons cannot be heard to say that there are illegalities in the election which is to take place or which has already commenced, and therefore, direct the authorities.....
Judgment:

A.P. Ravani, J.

1. The petitioner, an elected Sarpanch of Govindpara Gram Panchayat, taluka-Verava), district-Junagadh, has filed this petition challenging the legality and validity of a notification dated November 30, 1982, by which the respondent No. 2 herein declared the programme of election of Govindpara Gram Panchayat under the relevant provisions of the Gujarat Panchayats Act and the Rules formed thereunder. The legality and validity of the notification is challanged inter alia on the ground that the election was to be held on the basis of census of 1971 and not on the basis of the census figures of 1981. It was also alleged that the list of voters and the division of wards were not proper and in accordance with law.

2. As per the programme of election declared by the respondent No. 2 herein, the electors were required to file their nomination papers between December 15, 1982 to December 17, 1982. The scrutiny of the nomination papers was fixed on December 18, 1982. The election, if necessary, was to be held on January 16, 1983, and the counting was to be held on January 17, 1983. The respondent No. 2 further issued election notice as per Rule 7 of the Election Rules, wherein it was specifically notified with regard to time, date and place of receipt of nomination papers and scrutiny thereof, In this notice, further details with regard to other stages of election were also given. This notice is produced at Annexure-G to the petition.

3. The petitioner filed the present petition on December 14, 1982. It Was moved for urgent circulation on the same day. On the same day, the Court passed the following order.

Notice pending admission returnable on December 17, 1982.' On December 17, 1982, nothing appears to have happened. On December 22, 1982, the Court has passed orders as follows:Leave to amend to add parties. Rule returnable on January 25, 1983. Ad interim relief in terms of para 12(e).

Paragraph 12(e) of the petition reads as under:

This Hon'ble Court will be pleased to restrain the respondents from holding election of Govindpara Gram Panchayat pursuant to the notice dated 30-11-82 vide Annexure-D and dated 7-12-82 vide Annexure-G till and pending the hearing and final disposal of this petition.

In view of the aforesaid interim relief having been granted by this Court, the position is that no election has been held pursuant to the aforesaid notifications. By mere grant of interim relief, the petitioner has succeeded without the challenge being considered on merits.

4. It is now futile to decide the legality and validity of the aforesaid notifications inasmuch as fresh election cannot be held on the basis of these notifications issued in the past. It is contended that in democracy, no organ of the State should come in the way of the mandate of the people. The mandate of the people was that elected representatives of the people should hold the office for a specified period, beyond which period, they cannot continue in office unless they seek fresh mandate from the people. The term of the elected members of panchayat expired on December 31, 1982. Thereafter they could have held office only if the term was extended by Government as per the provisions of the statute. When the term is extended by the Government, the action of the Government reflects the will of the people. In democracy. Government acts through the elected representatives of the people. Government officers and Ministers are accountable to the people. Even if election cannot be held for technical reasons or for any other valid reasons, the persons in position of power have no legitimate democratic right to continue in office. Such persons cannot be heard to say that there are illegalities in the election which is to take place or which has already commenced, and therefore, direct the authorities concerned to refrain from holding election. To uphold such contention even prima facie, and allow them to continue in office would only mean that persons who have no legal or moral right to hold and sit in the elective office, be permitted to sit in position of power. By any standard, this course will be non-democratic if not undemocratic.

5. Hence, there is much force in the contention. We as a country, have adopted the democratic form of Government. Even our local bodies i. e. Panchayats, Municipalities and Municipal Corporations are being run on democratic principles. The very basic tenets of democracy are:

(i) that one who sits in position of power must be accountable to the people, and

(ii) that the person in position of power must seek fresh mandate of the people at a specified interval of time.

If a person elected for a specified period of time is allowed to hold the office for further period, he holds the office not as per the mandate of the people. He does not hold the office even as per the provisions of the statute. In a given case, when it becomes necessary to stay the election, even then a person who does not have the mandate of the people and whose term is not extended by the Government, ordinarily, cannot and should not be allowed to occupy the position of power. This will be against the basic tenets of democracy and against the provisions of the statute.

6. Be that as it may. It is not necessary to make further discussion on all these questions in this petition since the petition has become infructuous as stated hereinabove.

It is hoped that fresh election of the panchayat will be held as expeditiously as possible preferably before June 30, 1984. In the result, subject to the aforesaid observations, the petition is rejected as having become infructuous Rule discharged with no order as to costs.


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