Point of Law: Returning Officer is not expected to reject a nomination paper, without giving an opportunity to the candidate or his representative present at the time of scrutiny to meet an objection, capable of being met, particularly where such an opportunity is sought for by the candidate or his representative and no one present on behalf of the other candidates had opposed the claim made by the respondent. Having raised the objection suo motu, the request of the respondent who was present and sought time in writing to seek clarification from the BJP as to who was its official candidate, the Returning Officer in all fairness was obliged to grant time to the respondent as prayed for by him and postponed the scrutiny to the next day but he ought not to have rejected his nomination paper in hot haste. The Returning Officer, obviously, failed to exercise his jurisdiction under Section 36(5) of the Act properly and thereby fell in a grave error in rejecting the nomination paper of the respondent

JUDGMENT :

A.P. THAKER, J.

1. Present Election Petition has been filed under Article 329 (b) of the Constitution of India and under the provisions of The Representation of the People Act, 1950 (for short “the Act”) for the following prayers:-

“10. The petitioner therefore prays that:

(A) Your Lordships may be pleased to quash and set aside the result dated 18.12.2017 qua the 36-Gandhinagar (North) Constituency of legislative Assembly, declaring the respondent no. 4 as being elected as Member of the Gujarat Legislative Assembly.

(B) Pending hearing and final disposal of the petition the result dated 18.12.2017 qua the 36-Gandhinagar (North) Constituency of legislative Assembly, declaring the respondent no. 4 as being elected as Member of the Gujarat Legislative Assembly may be stayed.

(C) Such other and further reliefs which the Honourable Court may deem fit, just and proper be granted in the facts and circumstances of the present case and in the interest of justice.”

2. According to the petitioner, he being eligible for contesting the election of the State Legislature, he filled up the form along with all the requirements as per law before the concerned officer. He has stated that the Returning Officer rejected his form on 20.11.2017 on the ground that one of the ten supporters; is not a voter of the Gandhinagar (North) Legislative Constituency and he has stated that only one supporter was voter from Bapunagar Constituency and rest of the voters were from Gandhinagar. It is stated that the Returning Officer explained that requirement of ten supporters is not fulfilled and, therefore, under Section 33 of the Act his candidature was rejected without mandatory notice under Section 35 of the Act. He has submitted that as he has no option but to challenge the decision of the Returning Officer dated 20.11.2017 and hence, he filed Special Civil Application No. 21776 of 2017, which came to be disposed of on 1.12.2017. He has also contented that result of the election has been declared on 18.12.2017 and 21.11.2017. As right to contest the same was reserved, now he is filing this Election Petition challenging the legality and validity of the election of 36-Gandhinagar (North) Constituent Assembly.

3. According to him, the last date of filing nomination paper was 20.11.2017 and on the date of its verification, 1 to 25 candidates were summoned and thereby 23 candidates remained present, except two candidates i.e. (i) Ashok Ranchhodbhai Patel and (ii) Shambhuji Chelaji Thakor and no signatures were obtained on the nomination papers in front of videography. According to him, thus entire election proceeding is illegal, unjust, arbitrary and perverse.

4. He has also contended that the Returning Officer rejected the candidature of 25 Gandhinagar (South) Sabarmati Constituent Assembly, wherein the candidate Shambhuji Chakor Thakor was allowed to correct defects of his nomination form and had accepted nomination paper. He has also alleged that the Returning Officer rejected the candidature of Mandvi (ST) Constituent Assembly, wherein the candidate Shri Shaktisinh Gohil was allowed to correct the defect of his nomination form. He has also alleged that after order dated 1.12.2017, the Returning Officer has not paid heed to the redressal for the grievance of the petitioner and his valuable right of contesting the election has been ruined.

5. According to him, the authority has committed error in rejecting his form in as much as the form filled up by him was in order and nine supporters were registered voters of the Gandhinagar (North) Legislative Assembly Constituency, whereas only one supporter is a voter of Bapunagar Constituency. While referring to Section 36 (4) of the Act, he has submitted that this provision provides that “the returning officer shall not reject any nomination papers on the ground of any defect which is not of substantial character.