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Judgment
.N. Bhatt, J.—Pursuant to the consensus, rule was issued and service of which is waived by learned Assistant Government Pleader,
Mr.Dave for respondent No. 1, by learned advocate Mr.Chhaya for respondent No. 2, and by learned advocate Mr.Thakkar for respondent No.
3, and in view of the element of urgency involved, consensual request for final hearing is accepted by us and, therefore, we have heard the matter
on merits for final judicial adjudication.
A short, but interesting question, at the instance of the petitioner, who is according to him, a duly elected representative of the Bhavnagar
Municipal Corporation to the Court of Bhavnagar University and the action of the respondent-authority, in directing repoll, cancelling the election
process ended with counting and resultsheet, dated 22.3.2004, is raised for reconsideration and adjudication in this writ petition, under Article 226
of the Constitution of India.
The claim of the petitioner has been that, pursuant to the election programme, he has been one of the candidates for the election for the
Bhvnagar Municipal Corporation to the Court of Bhavnagar University, as he is eligible to be elected for the post of Member of Bhavnagar
University from the constituency of the Bhvanagar Municipal Corporation, contemplated u/s 15 of Clause II (A) (iv) (b) of the Bhanvagar
University Act, 1978 [for short ""Act""]
The respondent no.1, Bhavnagar university, through its Vice Chancellor appointed respondent no.2. as Returning Officer for the said election
process and to conduct the election for the said constituency, specified u/s 15 of Clause II (A) (iv) (b), the respondent no.2 Returning Officer
published, notice dated 09.2.2004 and thereby election programme came to be notified. Bhavnagar Municipal Corporation opted for election to
be conducted by postal ballets and the said exercise of option was also notified. There were two candidates. Respondent no.2, started scrutiny
and counting of votes at at 5 hrs. in the evening on 22.3.2004 in presence of representative nominated by the respondent no.1, Bhavnagar
University as also in presence of representative of both the candidates, who were contested the said election.
The respondent no.2, Returning Officer had counted the envelopes. There were 50 voters, out of 51 corporators, and 8 voters were declared
invalid, and out of 42 votes declared valid, the petitioner got 23 votes and respondent no.3, the other candidate got 19 votes. The result-sheet was
signed by the petitioner but was not signed by the respondent no.3. However, the Returning Officer signed it.
In the meantime, First Information Report came to be lodged by respondent no.3 to the concerned Police Station for irregularities and illegalities
in the election process. A cognizable offence came to be recorded on this complaint being Cr.No.62 of 2004 before the Bhavnagar Police Station.
The respondent No.2, in order to ensure that free and fair election takes place, sent a communication dated 25.3.2004, whereby the Vice
Chancellor was informed about the factum of criminal complaint. He, therefore, thought it expedient to direct repoll and sought the guidance from
the Vice Chancellor, who in turn, informed him, as an Election Officer that he is competent to take appropriate decision in accordance with law.
He, therefore, directed fresh election and for that purpose, notice was also came to be issued and ballet papers were also sent to the voters for
repolling.
It becomes very clear from the affidavit-in-reply that, as an election officer, he noticed serious irregularities as alleged in ballets papers, and
which, in his opinion are eligible to be declared to be invalid. It is in this context, repoll was thought expedient so as to free and fair election takes
place, devoid of any irregularities alleged in the FIR, as well as, application which was filed by respondent no.3
During the Course of hearing, we were taken through the relevant material, and provisions of the Act in order to appreciate in a nutshell, a
mechanism and the constitution of the authorities and the profile of provisions of holding of elections of the University. Section 14 prescribed
authorities in which a Class II, ordinarily, membership provisions is made. Section 62 of the Act provides for method as to how election to be held
and by which system. It provides for proportionality representation method and first Statute Part I, Chapter I provides for about establishment of
court. So far as Statue 7-14 are concerned, 1 pertains to the election whereas, other pertains to the manner of election giving option either by post
or by ballets. In the case on hand, option was exercised by the postal ballets.
A report was made by the returning officer on 22.3.2004 to the Vice Chancellor is placed on record on page 43. The important provisions
prescribed in the mechanism for resolution of the disputes pertaining to election or appointed or persons entitled to be elected or appointed is
provided for section 67, statute 190 provides for powers of Vice Chancellor. Chapter 27 contains various provisions pertaining to the election to
the authorities, right from statue 188 to 226. In other words, right from holding election till the stage of the declaration of the result, different
Statues are provided for meeting different contingencies. In this context, we would like to highlight the statutory provisions, contained in statue 190
which read hereasunder:-
Statute 190:- Subject to Section 64 of the Act, The Vice Chancellor shall have the power - [a] to fix the date of election [b] to fix the last date of
receiving nominations [c] to decide in cases of doubt the validity or invalidity of a vote recorded and [d] to declare the result of each election.
It could very well be seen that the Vice Chancellor is empower to fix the date of election, to fix the last date of receiving the nominees and even
to decide in case of doubt, the validity and invalidity of vote recorded and also to declare the result of different election. Statute 190[c] makes it
amply clear that the Vice Chancellor is the authority under the act to decide the validity or invalidity of the vote in case of doubt.
A common reliance is placed on provisions of Section 67 of the Act, which provides for the resolution of the dispute of the constituency of the
University authority or body, we are of the opinion that this provisions is very material and important which reads as under:
67- Disputes as to constitution of University authority or body where any question arises as to [1] the interpretation of any provisions of this Act,
or any Statute, Ordinance, Regulation or Rule or, [2] Whether a person has been duly elected or appointed as, or is entitled to be or ceases to be
entitled to be a member of any authority or other body of the University [a] it may be referred to the State Government if it relates to a matter
specified in clause [1] and [[b] it shall be referred to the State Government if [i] it relates to a matter specified in clause [2] or [ii] It twenty
members of the Court so require, irrespective of whether it relates to matter specified in clause [1] or clause [2], and the State Government shall
after making inquiry as it deems fit [ including giving an opportunity of being heard where necessary] decide the question and tis decision shall be
final.]
In this connection, two decisions are relied on by learned Advocate General, while appearing for the University. A constitutional bench
decision, in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, and contention is advanced that in
absence of any provisions or statutory alternative provisions, repoll direction or power is inherent and the election repoll can be directed by the
Returning Officer, since he was in-charge of the entire conduct of the election. Our attention is also invited to a decision interpreting the provisions
of Section 58 of Gujarat University Act, which is pari-passu to Section 67 of this Act, rendered in Gujarat University Vs. Shri N.U.Rajguru, AIR
1988, SC 66. Section 58 of the Gujarat University Act pertains to the dispute arises with regard to the constitution of any of the authorities of the
University or body. Similar provision is made in Section 67 of the Act. We have dispassionately examined both the decisions.
It has been held in Gujarat University case [ supra] if a dispute with regard to the constitution of any of the authorities of the University, it
should be referred to the State Government for determining the same. It firstly provides that where any question arises as to interpretation of any
provision of the Act, or of any Statute, Statutory Ordinance, Regulation or rules, it may be referred the State Government. Again it lays down that
if a question arises, whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any
authority or other body of the university, it shall be referred to the State Government. Section 67 (2) (b) (ii) which is equivalent to Section 58(2)(a)
of the Gujarat University Act, which provides that the dispute relating to the interpretation of any provisions of the Act or Statute, Ordinance,
Regulation, or Rules, may be referred to the Government. While Clause (b) of sub section (2) of Section 58 contains a mandatory provision that if
the dispute relates to the question whether a person has been duly elected or appointed to any authority of the University, such a dispute shall be
referred to the State Government. It becomes very clear therefore, that there is no such option or discretion. If such a dispute arises, it has to be
referred to the State Government for determining and resolving the same. The legislative designed and desideratum is manifestly clear that any
dispute relating to the matters covered by Section 67 of the Bhavnagar University Act, which is equivalent to Section 58 of the Gujarat University
Act, it should be referred to the State Government for its decision and such decision shall be final.
It could very well be visualized that the legislature in its wisdom has evolved a separate mechanism for the resolution and determination of the
dispute in respect of the matters specified therein. Since the ""Court"" is authority of the University, as declared by the provisions of Section 14, of
the Bhavnagar University Act, Section 67 provides an effective remedy for challenging the election of a member to the Court of the University. In
the present case, the claim of the petitioner is that he is entitled to be member of Court of the Bhavnagar University, as he has been elected and
secured majority votes. This fact therefore, shall not fall within the ambit of the Provision of Section 67 of the Bhavnagar University Act. Any
person aggrieved by the election of any manner to the Court has right to challenge the same before the State Government by raising a dispute in
accordance with law. Provisions of Section 67 which provides the effective, expeditious remedy.
Instead of raising the dispute, by way of reference, before the State Government as contemplated by the provisions of Section 67 of the Act,
the petitioner raised the challenge before this court under Article 226 of the Constitution. In our opinion, the petitioner ought to have raised the
dispute for being resolved before the appropriate forum, which is the State Government, in view of clear provisions of Section 67 of the Bhavnagar
University Act. He has, therefore, to pursue his remedy before the appropriate forum provided by the Statute. While considering an election
dispute, it may be kept in mind that right to vote, contest or dispute relating to election is a statutory right regulated by the statutory provisions and
dispute relating to election is not a fundamental right. Obviously, therefore, Court at loath to permit the party having statutory rights being infracted
and having mechanism in its redressal to invoke extraordinary, plenary equitable, discretionary writ jurisdiction under Article 226 of the
Constitution, bypassing the statutory mechanism, provided for meeting with such situations and contingencies for the effective and speedy
resolution of such dispute of election matters. Therefore, we are of the clear opinion that ordinarily, statutory mechanism provided for evolvement
of statutory rights must be followed before the authority described therein or special forum or mechanism provided for. No argument is advanced
and no material from the record has shown extraordinary, situational relating compelling or warranting circumstances, bypassing the statutory
mechanism and, therefore, such a question would not assume any survival value in so far as the petitioner is concerned. After having heard the
learned advocates appearing for the parties, and considering the factual profile emerging from the record of the present case, the relevant material,
legal settings and the examination of important papers from the record of the Returning Officer, we issue following directions for efficacious and
effective resolution of dispute between the petitioner and the respondent no.3, in respect of impugned election.
[1] Petitioner will make a reference directly to the Government, as provided in Section 67 of the Bhavnagar University Act, 1978, within a week
from today. Copy of such reference or representation shall be sent by the petitioner to all the respondents.
[2] The respondent no.1, Bhavnagar University will also forward the same with necessary relevant material to the Government of Gujarat within a
period of two weeks on receipt of a copy of reference or representation from the petitioner. Upon receipt of such papers, by way of reference
from the petitioner as well as the University respondent no.1, the State of Gujarat, shall after making an inquiry, in accordance with law including
giving an opportunity of hearing, decide the question or dispute and the decision that may be taken, shall be communicated to the petitioner, as well
as to the respondent No. 1.
In view of the aforesaid observations and directions, the petition shall stand partly allowed and until the Government takes the final decision as
directed hereinabove, the proposed repoll, directed by the respondent No. 2, by notice dated 26.3.2004 shall stand stayed. Rule made absolute
to the above extent only. Direct service is permitted.