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2020 DIGILAW 739 (GUJ)

Amit Lalchandji Shah v. State Of Gujarat

2020-09-03

BELA M.TRIVEDI

body2020
ORDER : 1. Both the petitions involve similar issues, seeking for similar prayers, were heard together, and therefore, this common order is being passed. 2. It appears that earlier both the petitions were filed as Public Interest Litigation being Writ Petition (PIL) No.126 of 2020 and Writ Petition (PIL) No.131 of 2020, however, the same were permitted to be converted into Special Civil Applications by the Division Bench vide the order dated 31.08.2020. Accordingly the matters were heard as the Special Civil Applications. 3. Heard learned Senior Advocates Mr. N.D. Nanavaty and Mr. G.M. Joshi for the petitioners, learned Government Pleader Ms. Manisha Lavkumar Shah appearing with the learned AGP Ms.Jyoti Bhatt for the respondent Nos.1 to 4 and learned advocate Ms. Megha Jani for the respondent No.5, in both the petitions. 4. For the sake of convenience, the facts of Special Civil Application No. 10772 of 2020 are taken into consideration. 5. The petitioner is a member of the respondent No.5 – Gujarat Chamber of Commerce and Industry (hereinafter referred to as “GCCI”) and also a candidate in the ensuing election of the Executive Committee of GCCI, now scheduled to be held on 05.09.2020. It appears that as the term of the Executive Committee of GCCI had expired, the election of members of the executive committee and other office bearers of GCCI was scheduled to be held on 11.07.2020, however, there being some objections raised by the petitioner and others on account of the risk of COVID-19 exposure to the members, the same was postponed. Thereafter, the respondent No. 5 had sought permission from the District Magistrate i.e. respondent No. 2 vide the application dated 17.07.2020 to hold the election and the Annual General Meeting, pursuant to which the respondent No.2 vide the order dated 21.07.2020 has granted the permission subject to the guidelines/instructions that may be issued by the State Government/Central Government from time to time. 6. The petitioner, therefore, has challenged the validity of the said permission granted by the respondent No. 2 and also sought prayer to defer election scheduled to be held on 05.09.2020. 7. The respondent No. 2, the District Magistrate has filed the affidavit-in-reply inter alia contending that the role of the respondent No. 2 was restricted to the grant of approval of the conduct of the election in the context of Pandemic COVID-19 and the norms stipulated thereunder. 7. The respondent No. 2, the District Magistrate has filed the affidavit-in-reply inter alia contending that the role of the respondent No. 2 was restricted to the grant of approval of the conduct of the election in the context of Pandemic COVID-19 and the norms stipulated thereunder. It has been further contended that the said permission was granted in accordance with the guidelines issued by the Government of India and State Government, and the order categorically mandated the due compliance with all the norms prescribed by the Government of India and State Government. The respondent No.2 has further submitted that he had personally visited the place of the election and was satisfied with the arrangements made by the respondent No.5, and therefore, the Court may not interfere with the permission granted by him. 8. The respondent No.5 has filed the affidavit-in-reply denying all the allegations and averments made in the petition, and further challenging the very maintainability of the petitions at the instance of the petitioner. It has also been contended that the petition was filed abusing the process of law and there was no legal or fundamental rights of the petitioner violated. The respondent No.5 has in detail stated about the arrangements made by it for the purpose of holding election taking due care of maintaining social distancing and sanitization protocol. The rough sketch showing the location of booths, waiting area of the voters and the movements of voters through separate entries and exits has also been annexed. It is further stated that the respondent has hired an open area admeasuring 2500 sq.mtrs., on the river front in the close vicinity of the Chamber premises, which are providing enough parking space of cars and the vehicles of the voters. According to this respondent, there was no violation of any of the guidelines issued by the Government of India and State Government prevailing as on date in making such arrangements. As regards the holding of Annual General Meeting of GCCI, further additional affidavit has been filed stating inter alia that the said meeting was to be held in large area admeasuring approximately 9884 sq. ft., and in the open area near the entry admeasuring 3673 sq. As regards the holding of Annual General Meeting of GCCI, further additional affidavit has been filed stating inter alia that the said meeting was to be held in large area admeasuring approximately 9884 sq. ft., and in the open area near the entry admeasuring 3673 sq. ft., with shared screens which would be sufficient to accommodate the members attending Annual General Meeting, however considering the extraordinary circumstances of COVID-19, the respondent No.5 shall make arrangements for participation of members in the Annual General Meeting on virtual platform. It has been further contended that the GCCI shall follow all the guidelines issued by the Government of India and the State Government as applicable regarding the sanitization and social distancing as stated in the affidavit. 9. Learned Sr. Advocate Mr.N. D. Nanavati and learned Sr. Advocate Mr.G.M. Joshi appearing for the petitioners in both the petitions vehemently submitted that the impugned permission granted by the respondent No.2 District Magistrate is absolutely in violation of the Unlock-3 Guidelines issued by the Ministry of Home, Government of India on 29.7.2020 as also Unlock-4 Guidelines issued on 29.8.2020, inasmuch as under the said Guidelines a large congregation of public is completely prohibited and even for marriages only 50 persons are permitted. According to them, there are 3000 members of respondent No.5 of GCCI and even if it is presumed that only 50% voters would turn up, there would be at least more than 1000 persons who would be present at the premises for voting. Mr.Nanavati, though not pleaded in the petition, orally raised the contention with regard to the authority of the respondent No.2 in granting the impugned permission by submitting that the respondent No.2 had no authority to grant such permission to hold election and that too, in violation of the guidelines issued by the Government of India and the State Government. According to them, there was no urgency to hold the election, more particularly in the prevalent circumstances of the Pandemic COVID-19 and the present Executive Body could be continued for some more time as per the Constitution of the GCCI considering the extraordinary circumstances. They strenuously urged that the arrangements made by the GCCI for holding the election did not match the parameters or the guidelines issued by the Government of India. 10. They strenuously urged that the arrangements made by the GCCI for holding the election did not match the parameters or the guidelines issued by the Government of India. 10. However, the learned Advocate Ms.Megha Jani for the respondent No.5 placing heavy reliance on the affidavit-in-reply filed on behalf of the respondent No.5 submitted that the petitioners have filed the petition abusing the process of law inasmuch as initially they had filed PILs though they were the members of the respondent NO.5 GCCI and though they were the candidates in the ensuing election and had as such participated in all the meetings held by the election officer from time to time. According to her, the petitions were filed one month after the impugned permission granted by the respondent No.2, probably apprehending that they would not succeed in the election. As regards holding of AGM, Ms.Jani has relied upon the additional affidavit filed on behalf of the respondent No.5 to submit that the said meeting shall be held on virtual platform, and therefore, there was no question of not maintaining social distancing norms. As regards the holding of election also, she has relied upon the steps taken by the GCCI regarding sanitization and social distancing norms as stated in the said affidavit. Reliance is also placed on the rough sketch showing the arrangements made by GCCI for the waiting areas for the voters, movements of voters through separate entry and exit, as also the space hired for parking of vehicles. Taking the Court to the guidelines issued by the Ministry of Home Affairs, Government of India on 29.7.2020 known as guidelines for phased reopening (Unlock-3) and the guidelines for phased reopening (Unlock-4), she submitted that the word “auditorium” has been consciously omitted by the Ministry of Home Affairs in the Guidelines (Unlock-4), which is prevailing as on today, and there is as such no prohibition for making the use of the auditorium. As regards the contention raised by the learned Advocates for the petitioners with regard to the lack of competence of the respondent No.2 in granting the impugned permission, she submitted that no such contention has been raised in the petition, nonetheless, as per the said Guidelines (Unlock-3), all the District Magistrates are obliged to strictly enforce the said guidelines, and therefore, by way of abundant caution, the GCCI had sought the permission for holding the election, which has been duly granted by the respondent No.2, after visiting the site and after being satisfied about the arrangements made and the measures taken by the respondent No.5. 11. Having heard the learned Advocates for the parties at length and having gone through the documents on record, it may be stated that the petitioners under the guise of challenging the impugned permission granted by the respondent No.2 vide order dated 27.7.2020, have sought to stall the proceedings of the election of the Executive Committee and other office bearers of the respondent No.5 – GCCI scheduled to be held on 5.9.2020. It is settled legal position that the High Court in exercise of extraordinary jurisdiction would be loath in interfering with the election process once it has started. Beneficial reference of the decision of the Supreme Court in case of Election Commission of India Vs. Ashok Kumar & Ors., (2000) 8 SCC 216 , be made in this regard. 12. The Court also finds substance in the submission of the learned Advocate Ms.Megha Jani for the respondent No.5 that the present petitions have been filed almost one month after the impugned permission granted by the respondent No.2, and that too, after participating in all the meetings held in this regard by the Election Officer, under the guise that holding of such election would result in violation of the guidelines issued by the Government of India. 13. Apart from the fact that the petitioners have failed to point out any violation of their legal rights, much less fundamental rights, entitling them to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, they have also failed to make out any cogent reason to challenge the permission granted by the respondent No.2 vide the impugned order dated 21.7.2020. As transpiring from the said order, the said permission has been granted to hold the election of the Executive Committe and Annual General Meeting on 5.9.2020, subject to the guidelines/instructions that may be issued by the Government of India and the State Government from time to time with regard to the pandemic COVID-19. It has also been specifically mentioned in the said order that if the election was held in violation of the said guidelines, the said permission would stand automatically cancelled. It may also be noted that as per the guidelines issued on 29.7.2020 (Unlock-3 Guidelines) all District Magistrates have been made responsible for the strict enforcement of the said Guidelines and the measures indicated in the said guidelines. Under the circumstances, it could not be said that the permission granted by the respondent No.2 District Magistrate was without any authority or competence. 14. Though it has been stated about the nonobservance of the guidelines issued on 29.7.2020 (Unlock-3) and on 29.8.2020 (Unlock-4), the Court does not find any substance in the same. It is pertinent to note that the guidelines issued on 29.8.2020 (Unlock-4) are prevailing as on date, and the use of activity of Auditorium or the Assembly Hall, which was prohibited under the Guidelines (Unlock-3) is no longer prohibited under the Guidelines (Unlock-4). The relevant part of the said guidelines are reproduced hereunder : Guidelines Unlock- 3 Guidelines Unlock- 4 (1) In areas outside Containment Zones, all activities will be permitted except the following: (1) In areas outside Containment Zones, all activities will be permitted except the following: (ii) cinema halls, swimming pools, entertainment parks, theaters, bars, auditoriums, assembly halss and similar places. (iv) cinema halls, swimming pools, entertainment parks, theaters, and similar places will remain closed. 15. From the aforestated comparison, it is absolutely clear that the activities of Auditoriums and Assembly halls which were prohibited under the guidelines of Unlock-3, have been now omitted under the Guidelines (Unlock-4), meaning thereby as on the date, activities of the Auditoriums and Assembly Halls are permitted, of course, subject to the observance of social distancingand sanitization etc., norms. As stated by the respondent no.5 – GCCI in additional affidavit, the setting up of two polling booths in each of the two halls admeasuring 1554 sq. ft., and 1960 sq. As stated by the respondent no.5 – GCCI in additional affidavit, the setting up of two polling booths in each of the two halls admeasuring 1554 sq. ft., and 1960 sq. ft., respectively would not violate the guidelines in any manner, and in the alternative GCCI is also ready and willing to discontinue with the Sheth Shri Amrutlal Hargovindas Memorial Hall and shift the polling booths No.1 and 2. It is also proposed that the Booth No.2 would be shifted in the larger space along with Booth Nos.5 and 6 and that Booth No.1 would be relocated to a space near ADRC Entrance. As stated earlier, the other arrangements with regard to the waiting area, exit and entry, parking of vehicles have also been taken care of by GCCI. In any case, the permission has been granted by the respondent No.2, subject to the observance of the guidelines prevailing as on the date, and therefore, it is expected that all the norms and guidelines as regards sanitization and social distancing, etc., shall be strictly adhered to by the respondent No.5 – GCCI while holding the elections of the Executive Committee, and of the office bearers, and also while holding the AGM scheduled to be held on 5.9.2020. 16. In that view of the matter, the Court does not find any merit in the present petitions, and the same are dismissed accordingly.