JUDGMENT :

M.R. Shah, J.

Leave to correct the cause title by describing respondent No.1 as State Election Commission, notice to be served through the Secretary, Election Commissioner, State Election Commission.

Draft amendment allowed as prayed for. Petitioner to carry out the amendment forthwith.

Shri Mahendra Vora, learned advocate seeks permission to delete respondent Nos.3 and 4. Permission is, accordingly, granted.

2. RULE. Ms. Roopal Patel, learned advocate waives service of notice of Rule on behalf of respondent Nos.1 and 2 and Shri Dipen Desai, learned advocate waives service of notice of Rule on behalf of respondent Nos.5 to 7.

2.1. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of respective parties, present petition is taken up for final hearing today.

3. By way of this petition under Article 226 of the Constitution of India, petitioner has prayed for an appropriate writ, direction or order directing respondent Nos.1 and 2 to accept the nomination form of the petitioner for election to the post of Councilor of Ward No.7 of Dhanera Nagarpalika and permitting him to contest the said election on the symbol of a recognised political party – Bharatiya Janta Party (BJP). By way of amendment which has been carried out the petitioner has prayed for an appropriate writ, direction or order declaring the nomination of the petitioner as valid nomination as the nomination of the main candidate mandated/set up by his party – BJP has been declared invalid by this Court by order dated 04.02.2013 passed in Special Civil Application No.1009 of 2013.

4. Facts leading to the present Special Civil Application in nutshell are as under:

4.1. That for the election of Ward No.7 of Dhanera Nagarpalika, the petitioner and one Yogeshbhai Durgashanker Trivedi submitted the nomination forms and desired to contest the election on behalf of a recognised political party BJP along with the mandate of the concerned party. It appears that the name of the petitioner was sponsored by the recognised political party as a substitute candidate meaning thereby in the mandate given by the aforesaid recognised political party, name of Yogeshbhai Durgashanker Trivedi was submitted/given as a main candidate and the name of the petitioner was submitted/given as a substitute/dummy candidate. It appears that so far as Yogeshbhai Durgashanker Trivedi is concerned, at the time of scrutiny of the nomination paper, his nomination paper was required to be rejected on the ground that as such he was disqualified to become a Councilor considering the provision of Section 11(1)(a) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "Act") as he was convicted by the Criminal Court on 05.09.2005 but not undergone the sentence since the sentence was suspended and therefore, the period of four years was not over from the date of conviction, his imprisonment and release from the imprisonment. Despite the above, the Returning Officer accepted the nomination form of the said Yogeshbhai Durgashanker Trivedi. As the nomination form of the said main candidate set up by the concerned recognised political party came to be accepted by the Returning Officer, considering clause 17(1) of the order issued by the State Election Commission dated 08.02.2012 which were issued in exercise of powers under Rule 15 of the Gujarat Municipalities (Conduct of Election) Rules, 1994 (hereinafter referred to as "Election Rules"), the Returning Officer did not consider the nomination form of the petitioner as considering clause 17(1) of the aforesaid order on accepting the nomination form of the main candidate set up by the concerned recognised political party, the nomination form of the dummy candidate/substitute candidate was required to be treated as rejected unless the said dummy/substitute candidate has shown his desire by filing separate nomination form/s and shown his desire to contest the election as an independent candidate (with th