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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, ILESH J. VORA, JJ.
Sukeshbhai Meghjibhai Bavalia - Appellant
Versus
State Election Commission - Respondent
R/Special Civil Application No. 3402 of 2021 With Civil Application (For Joining Party) No. 1 of 2021 Decided on : 26-02-2021
Constitution of India, 1950 - Article 226 and 329(b) - Gujarat Panchayats Elections Rules, 1994 - Rule 2(a), 11 and 15 - Election - Nomination - Free and Fair election - Seeking a direction to the State Election Commission as well as Election Officer in charge of Board District to accept mandate of petitioners and allow them to contest election in accordance with law, failing which election would not be a free and fair election and rather it would be an uncontested election since nomination Forms of all members of one political party have been refused to be accepted and which would lead to an uncontested win by members of a particular party - Pleased to direct respondent state election commission and election officer in charge of Botad District Panchayat Elections to accept mandate/ nomination of petitioners and allow them to contest election in accordance with law and provisions of constitution - Whether writ-application is maintainable against an order rejecting nomination Form- for want of valid Form-K in accordance with Rules, 1994 - Whether failure to fill up Form-K in accordance with Rules 1994 could be termed as a technical defect or same would be one of a substantial character leaving Returning Officer with no other option but to reject such nomination Form- without any summary inquiry - Whether any case of malafide or political interference has been made out by writ-applicants in so far as the rejection of their nomination Forms is concerned
Finding of the court: It has been very boldly and emphatically argued before us that the presence of the Minister can be taken note of if the CCTV footage is called for by this Court. We do not intend to go into the issue, whether the Minister was, in fact, present in the office premises of the Returning Officer on 13th February 2021 or not. In this regard, all the allegations levelled have been outright denied by both, the State Election Commission as well as by the Returning Officer - High constitutional functionaries, like the cabinet rank ministers, should not indulge in any activity, more particularly, during any election, which may give chance to the people to level allegations. Such allegations will have a direct impact on the concept of free and fair election. At times, something done in good faith is also likely to be misunderstood on account of the high tempo of election - it is clear that if the requirements contemplated in clause no.17(3) of the Symbol Order, 2012, is not complied with by filing the requisite Form-K not later than 3:00 p.m. on the last date of making the nominations, then the candidate shall not be deemed to be one set up by the recognised political party and his nomination paper, if subscribed by a single elector, shall be liable to be rejected - It is true that not every defect warrants the rejection of a nomination paper. The defect must be of a substantial character. There can be no hard and fast rule to find out, whether any particular defect is or is not of a substantial character. However, we are sure of one thing, that an invalid Form-K (not containing the signatures of the authorized representatives of a political party) is an invalid Form-K, and such a defect would definitely be one of a substantial character.
Result: Civil Application disposed of
JUDGMENT :
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants, desirous of contesting election to the Botad District Panchayat, have prayed for the following reliefs :
(B) Your Lordships Be pleased to direct respondents and respondent election commission as well as election officer in charge of Botad District Panchayat Elections to accept the mandate/nomination of the petitioners and allow them to contest election in accordance with law and the provisions of the constitution;
(C) During the pendency and/or final disposal of the present petition be pleased to direct respondent state election commission and election officer in charge of Botad District Panchayat Elections to accept the mandate/ nomination of the petitioners and allow them to contest election in accordance with law and the provisions of the constitution;
(D) Your Lordships be pleased to dispense with the affidavit of the Petitioner and be further pleased to dispense with the typed copies of all annexures on account of the prevailing pandemic;
(E) To grant any other and further reliefs that may be deemed fit and proper and in the interest of justice.”
2. The facts giving rise to this writ-application in the words of the writ-applicants themselves, as pleaded in the memorandum of the writ-application, are as under :
The Petitioners have been constrained to approach this Hon’ble Court calling for its interference in its plenary powers as the petitioners despite having submitted their Form- both K and KH well within the stipulated deadline that is before 3 PM on 13.02.2021 the Respondent Election officer has refused to consider the nomination of the Petitioners on account of the fact that there is a technical error of not appending signatures of the representatives of the party. Such refusal on part of the Respondent Election officer is unwarranted and uncalled for especially since the Petitioners removed the technical defects and submitted the Form- before the time for scrutiny came to an end on at 3 PM on 15.02.21.
It is further stated that all the required papers were submitted by the Petitioners well within the time frame and in accordance with law. However, the designated officers of the party hadn’t appended their signatures on Form-K. It must be noted that in as much as Form-KH is concerned the same is in order and complete and contains the signatures as mandated in law.
The present petition is being filed, inter alia, seeking a direction to the State Election Commission as well as Election Officer in charge of Botad District to accept the mandate of the petitioners and allow them to contest election in accordance with law, failing which the election would not be a free and fair election and rather it would be an uncontested election since the nomination Forms of all members of one political party have been refused to be accepted and which would lead to an uncontested win by members of a particular party.
It is stated that the correct Form-KH was submitted well before the scrutiny period got over and the same has been inwarded by the Respondent Election officer. However, due to intervention by a Minister from the BJP, the Respondent Election officer at the last moment refused to accept the changed/rectified Forms. It its stated and submitted that just a few days ago in a similar factual backdrop, the election officer at Rajkot had permitted the contestants therein to make amends and the subsequently amended Form- was accepted by the election officer.
The petiti
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