GOHEL SUNIL DEVSHI Vs. STATE ELECTION COMMISSION

JUDGEMENT

(1.) All these appeals involve common questions and have been argued together. They are directed against the decision of the learned Single Judge rendered on 23.12.1999 in Special Civil Application No.10037 of 1999 and Special Civil Application No.10041 of 1999 dismissing the petitions and vacating the mandatory interim relief by restoring status quo ante. The petitioners have challenged the order dated 8.12.1999 of the Election Commission by which the candidates who had filled in their nominations purporting to be candidates set up by a recognized political party were required to furnish the requisite letter evidencing that fact by 3.00 p.m. on the date of filing of the nomination papers. As per the programme which was announced by the Election Commission on 6.12.1999, the last date for submitting nomination papers was 13.12.1999. The date of scrutiny was 15.12.1999 and the date for withdrawing the nomination was 17.12.1999. The last date of voting was 2.1.2000 which has been later changed to 7.1.2000. According to the petitioners, as per that programme, in view of the Explanation 2 to Rule 15 of the Gujarat Municipalities (Conduct of Elections) Rules, 1994, a candidate set up by a recognized political party could produce a letter to that effect signed by the President of the State Unit of that party in Gujarat or any other person authroised by him in that behalf before 17.12.1999 being the last date for withdrawal of nominations specified as per Rule 11. There has not been any change made in the last date of withdrawal fixed under the notification. It is therefore contended that the direction of the Election Commission requiring the petitioners to furnish the letter to show that they are party candidates before the date of withdrawal of nominations violated the statutory provisions of Explanation 2 of Rule 15. It was argued that in issuing instructions contrary to the statutory provisions of Rule 15, even if they were to be for the sake of convenience of the office of the State Election Commission, it had acted without jurisdiction and therefore this was a proper case where the High Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.

(2.) The learned Single Judge applying the ratio of the decisions of the Supreme Court in ANURAGH NARAIN SINGH v. STATE OF U.P. reported in (1996) 6 SCC 303 and UMESH SHIVAPPA AMBI v. ANGADI SHEKARA BASAPPA reported in AIR 1999 SC 1566 found that the challenge to the mandate contained in the letter dated 8.12.1999 issued by the State Election Commission could not be examined in these petitions under Article 226 of the Constitution of India and that such a challenge could appropriately be made in an election petition that may be filed under Section 14 of the Gujarat Municipalities Act, 1963.

(3.) It has been pointed out that there has been an amendment of Rule 7 (2) by which a proviso has been added to the following effect: