SHANTABEN NANJIBHAI PATEL Vs. RAMIBEN RAMABHAI PARMAR

JUDGEMENT

(1.) Smt Shantaben Nanjibhai Patel, a councillor in Idar Municipality has filed Special Civil Application No. 22810 of 2005 challenging the decision of the Election Officer & Special Land Acquisition Officer, Sabar Kantha District at Himmatnagar declaring Smt Ramiben Ramabhai Parmar (the first respondent in the said petition) as elected to the office of President of Idar Municipality on the ground that the said decision is in flagrant violation of the provisions of sub-rule (4) of Rule 9 of the Gujarat Municipalities (President and Vice President) Election Rules, 1964 [hereinafter referred as "the Election Rules"]. Special Civil Application No. 24745 of 2005 is filed by Smt Ramiben Ramabhai Parmar, the councillor declared to have been elected as President of Idar Municipality, challenging the vires of sub-rule (4) of Rule 9 of the said Election Rules. In view of the fact that the subject matter of the two petitions is inter-connected, with the consent of the learned counsel for the parties, the petitions were heard together for final disposal and are being disposed of by this common judgment.

(2.) The facts leading to filing of these petitions, briefly stated, are as under :-

(3.) Mr Vijay Patel, learned counsel for the petitioner has submitted that since the votes secured by the first respondent (10 votes) were less than the aggregate of the votes secured by the other two candidates [9 votes for petitioner plus two votes for the fifth respondent = 11 votes}, as per the provisions of sub-rule (4) of Rule 9, the fifth respondent who had obtained the smallest number of votes was required to be excluded as a candidate from the arena and the voting was to be conducted only for two candidates i.e. the petitioner and the first respondent. The councillor who would then secure a clear majority of votes cast by the total councillors present and voting could be declared as the President of the Municipality. However, the Election Officer did not follow this clear rule and instead declared the first respondent as elected as President merely because she had obtained the highest number of votes out of the three candidates.