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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
PARESH UPADHYAY, J.
Ashwinbhai Kamsubhai Rathod – Appellant
Versus
Bhailalbhai Kalubhai Pandav, Bhupendrasinh Manubha Chudasama And Others - Respondents
R/Election Petition No. 3 of 2018
Decided on : 12-05-2020
Representation of People Act, 1951 - Section 123(7) -Election - Corrupt practice - Petition Challenge in this Election Petition is made to General Election to Gujarat Legislative Assembly - Election was held on counting of votes was held on result of said election was declared on same date - As per result of said election returned candidate by securing total votes out of which votes were received through EVMs and votes were received through postal ballots - Election record and in turn to conceal said manipulation all orders/instructions of Election Commission of India including mandatory instructions regarding procedure of counting of votes preparation of election record and announcement of result were defied by Returning Officer on day of counting of votes - According to petitioner respondent who at relevant time was Revenue Minister got all that done through Returning Officer for furtherance of prospects of respondent in Election in question and thereby corrupt practice as defined - Held, Court is already held by this Court while answering Issue that procedure adopted for counting of votes in election in question was against orders of Election Commission of India and was illegal and further that result of election in question has been materially affected by it and consequently election of returned candidate - Evidences and circumstances further fortify conclusion arrived at by this Court as noted above which is to effect that on weighing evidence on record which is noted & discussed in detail in earlier part of this judgment and keeping in view language of Representation of People Act this Court arrives at conclusion that it is proved that in present case candidate and his agent have not only attempted but have successfully obtained and procured assistance from Returning Officer for furtherance of prospects of respondent in election in question - On facts this Court has further found that it is proved that Returning Officer on one hand and respondent and his election agent on other hand were in election in question - Issue are therefore already answered in affirmative - Petition allowed (Paras 96 and 98).
Facts of the Case:
Grievance of the petitioner in substance is to the effect that :- (i) as against the victory margin of 327 votes, 429 postal ballot papers were illegally rejected/excluded from consideration by the Returning Officer, at the time of counting of votes, which has materially affected the result, (ii) the exclusion of those 429 postal ballots was behind everybody's back, (iii) to conceal this exclusion, election record is systematically manipulated by the Returning Officer, (vi) to manipulate the election record and in turn to conceal the said manipulation, all the orders/instructions of the Election Commission of India, including mandatory instructions, regarding procedure of counting of votes, preparation of election record and announcement of result were defied by the Returning Officer, on the day of counting of votes.
Finding of the Court:
Court is already held by this Court while answering Issue that procedure adopted for counting of votes in election in question was against orders of Election Commission of India and was illegal and further that result of election in question has been materially affected by it and consequently election of returned candidate - Evidences and circumstances further fortify conclusion arrived at by this Court as noted above which is to effect that on weighing evidence on record which is noted & discussed in detail in earlier part of this judgment and keeping in view language of Representation of People Act this Court arrives at conclusion that it is proved that in present case candidate and his agent have not only attempted but have successfully obtained and procured assistance from Returning Officer for furtherance of prospects of respondent in election in question - On facts this Court has further found that it is proved that Returning Officer on one hand and respondent and his election agent on other hand were in election in question - Issue are therefore already answered in affirmative.
Result: Petition allowed
JUDGMENT :
(EXH.153)
1.1 Challenge in this Election Petition is made to the General Election to the Gujarat Legislative Assembly held in December 2017, for 58-Dholka Constituency. Mr. Ashwinbhai Kamsubhai Rathod (the petitioner) was the candidate set up by the Indian National Congress Party. Mr. Bhupendrasinh Manubha Chudasama (the respondent No. 2) was the candidate set up by the Bharatiya Janta Party. The said election was held on 14.12.2017. The counting of votes was held on 18.12.2017 and the result of the said election was declared on the same date. As per the result of the said election, Mr. Bhupendrasinh Manubha Chudasama (respondent No. 2) is the returned candidate, by securing total 71530 votes, out of which 71189 votes were received through EVMs and 341 votes were received through postal ballots. The petitioner secured total 71203 votes, out of which 70675 votes were received through EVMs and 528 votes were received through postal ballots.
1.2 The victory margin of the respondent No.2 over the petitioner is 327 votes.
1.3 The grievance of the petitioner in substance is to the effect that :- (i) as against the victory margin of 327 votes, 429 postal ballot papers were illegally rejected/excluded from consideration by the Returning Officer, at the time of counting of votes, which has materially affected the result, (ii) the exclusion of those 429 postal ballots was behind everybody's back, (iii) to conceal this exclusion, election record is systematically manipulated by the Returning Officer, (vi) to manipulate the election record and in turn to conceal the said manipulation, all the orders/instructions of the Election Commission of India, including mandatory instructions, regarding procedure of counting of votes, preparation of election record and announcement of result were defied by the Returning Officer, on the day of counting of votes. According to the petitioner, the respondent No.2, who at the relevant time was the Revenue Minister, got all that done through the Returning Officer, for the furtherance of the prospects of the respondent No.2 in the Election in question and thereby corrupt practice, as defined under Section 123(7) of Representation of the People Act, 1951 was also committed.
1.4 The petitioner has prayed that, the said election of the respondent No.2 be declared void under the provisions 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.2.
2.1 The details with regard to the pleadings of the contesting parties i.e. the petitioner and the returned candidate (the respondent No.2), which were the basis for framing the issues to be tried by this Court in this petition/trial, are noted in para 3 and para 4 respectively.
2.2 Issues framed by the Court are noted in para 5.
2.3 The details with regard to the respondents in this petition, including deletion of two of them and subsequent addition of three respondents and the circumstances leading to their deletion and subsequent addition, are noted in para 6.
2.4 The details with regard to the evidence brought on record by the petitioner are recorded in para 7. Further, the details with regard to the evidence/deposition of the Returning Officer, who had entered the witness box at the instance of the petitioner, pursuant to the witness summons issued by this Court, are recorded in para 8. The said evidence/deposition of the Returning Officer is recorded at Exh. 99 and is treated to be part of the evidence brought on record by the petitioner.
2.5 The details with regard to the evidence brought on record by the Returned Candidate (the respondent No.2) are recorded in para 9.
2.6 The details with regard to the evidence/say/case of the Returning Officer (Mr.Dhaval Jani, Deputy Collector), after he was joined as party respondent No.13 by this Court vide order dated 02.04.2019, as required under Section 99 of the Representation of People Act, 1951, are
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