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2019 Supreme(Guj) 248
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
PARESH UPADHYAY, J.
Ahir Meramanbhai Marakhibhai - Petitioner
Versus
Pabubha Viramabha Manek & Ors. - Respondents
R/Election Petition No. 20 of 2018
Decided On : 12-04-2019
For the Petitioners:Mr. B.M. Mangukiya, Advocate.
For the Respondents:Mr. C.B. Upadhyaya, Advocate.
Point of Law
What can be said to be ‘a defect of substantial character’ and what are the defects which can not be said to be defect of substantial character, the language of Section 36(4), Section 33(1) and 33(4) of the Act, needs to be kept in view.
Headnote:
Representation of the People Act, 1951 – Section 100(1)(d)(i) – Challenge in this Election Petition is made to the General Election to the Gujarat Legislative Assembly held in December 2017 for the 82-Dwarka Constituency'. The respondent No.1 is the returned candidate in the said election from the 82-Dwarka Constitunecy. The challenge is principally on the ground that, the nomination of the respondent No.1 was illegally accepted by the Returning Officer - Election of the respondent No.1 be declared as void under Section 100(1)(d)(i) – Held, Petitioner had secured 67692 Votes. The respondent No.1 had secured 73431 Votes. These figures are mentioned in the final result sheet Form-20. The said document is on record at Exh.54. The above figures would show that the wish of the people is either with the respondent No.1 or with the party, which setup him a candidate. Under either of the circumstances, it would be against the wish of the people, to declare the petitioner as the returned candidate, in the election in question – Petition partly allowed (Paras 32 and 36)
Facts of the Case:
Challenge in this Election Petition is made to the General Election to the Gujarat Legislative Assembly held in December 2017 for the 82-Dwarka Constituency'. The respondent No.1 is the returned candidate in the said election from the 82-Dwarka Constitunecy. The challenge is principally on the ground that, the nomination of the respondent No.1 was illegally accepted by the Returning Officer - Election of the respondent No.1 be declared as void under Section 100(1)(d)(i)
Finding of the Court:
Petitioner had secured 67692 Votes. The respondent No.1 had secured 73431 Votes. These figures are mentioned in the final result sheet Form-20. The said document is on record at Exh.54. The above figures would show that the wish of the people is either with the respondent No.1 or with the party, which setup him a candidate. Under either of the circumstances, it would be against the wish of the people, to declare the petitioner as the returned candidate, in the election in question
Result: Petition partly allowed
1. Challenge in this Election Petition is made to the General Election to the Gujarat Legislative Assembly held in December 2017 for the 82-Dwarka Constituency'. The respondent No.1 is the returned candidate in the said election from the 82-Dwarka Constitunecy. The challenge is principally on the ground that, the nomination of the respondent No.1 was illegally accepted by the Returning Officer. It is prayed by the petitioner that the said election of the respondent No.1 be declared as void under Section 100(1)(d)(i) of the Representation of the People Act, 1951. The petitioner has also prayed that, he be declared as the returned candidate in the said election, in place of the respondent No.1.
2.1 The case of the petitioner is recorded in para:3.
2.2 The case of the respondent No.1 – the Returned Candidate is recorded in para : 4.
2.3 Reference qua other respondents is made in para : 5.
2.4 Issues framed by this Court, which are tried in this petition, are recorded in para : 6.
2.5 Answers to the said issues are noted in para : 7.
2.6 The reasons and the findings of this Court, for arriving at the answers qua each issue, are noted as under.
2.6.1 For Issue No.1, para : 9 to 17.
2.6.2 For Issue No.2, para : 18.
2.6.3 For Issue No.3, para : 19 to 25 & para : 26 to 28.
2.6.4 For Issue Nos.4, para : 29.
2.6.5 For Issue Nos.5, para : 30.
2.6.6 For Issue No.6, para : 31 to 34.
2.7 The final order of the Court (Issue No.7), is recorded in para:35 to 38.
3. The case of the petitioner.
3.1 The case of the petitioner is to the effect that, General Election to the Gujarat Legislative Assembly was held in December 2017. The petitioner had contested the said election from the 82-Dwarka Constituency'. The petitioner was the candidate set up by the Indian National Congress Party. The last date of submission of nomination was 21.11.2017. The petitioner had submitted his nomination to the Returning Officer on 21.11.2017. The Returning Officer also received a nomination of the respondent No.1, as a candidate setup by the Bhartiya Janata Party, on 20.11.2017. The scrutiny of all the nominations was held on 22.11.2017.
3.2 On the date of scrutiny (22.11.2017), the petitioner gave his objection to the Returning Officer stating that, the nomination of the respondent No.1 was defective, since in his nomination, the number and name of the constituency was not mentioned. It was also pointed out to the Returning Officer by the petitioner that, not only the number and name of the constituency was not shown by the respondent No.1, instead at that place - the name of the proposer was shown. According to the petitioner, the said nomination of the respondent No.1 was required to be rejected. The petitioner had given written objection in that regard to the Returning Officer on 22.11.2017 (Exh.51). It was also pointed out by the petitioner to the Returning Officer that, non-mentioning of the number and name of the constituency in the first line of the nomination form (part-I) was fatal, in view of the decision of the Supreme Court to India in the case of Prahladdas Khandelwal Vs. Narendra Kumar Salve reported in 1973 AIR SC 178. A copy of the said judgment was also annexed with Exh.51. The said objection of the petitioner was responded on behalf of the respondent No.1, on that very day i.e. 22.11.2017 (Exh.52). The Returning Officer passed an order on 22.11.2017 (Exh.53), rejecting the objection of the petitioner and thereby accepted the nomination of the respondent No.1. Subsequently, the election was held on 09.12.2017. Counting of votes took place on 18.12.2017 and the respondent No.1 was declared as the returned candidate. The petitioner was the next candidate having secured maximum votes after the respondent no.1. The result was so declared by the Returning Officer. It is this election of the respondent No.1, as the returned candidate from 82-Dwarka Constituency', which is challenged by the petitioner in this petition, principally on the ground that the accepta
