Gujarat High Court
Ashwinbhai Kamsubhai Rathod vs Bhailalbhai Kalubhai Pandav on 2 April, 2019
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/EP/3/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION PETITION NO. 3 of 2018
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ASHWINBHAI KAMSUBHAI RATHOD ...PETITIONER
Versus
BHAILALBHAI KALUBHAI PANDAV & ORS. ...RESPONDENTS
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Appearance :
MR P.C. KAVINA, SENIOR ADVOCATE with
MR S.P. MAJMUDAR, ADVOCATE for the Petitioner
MR C.B. UPADHYAYA, ADVOCATE for the contesting Respondent No. 2
MR MEHUL S. SHAH, SENIOR ADVOCATE with
MR JENIL M. SHAH, ADVOCATE for the Respondent No. 5
MR BHAGIRATH N. PATEL, ADVOCATE for the Respondent No. 12
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 02/04/2019
ORAL ORDER (Exh.115)
1. The subject matter of this Election Petition is the General Election to the Gujarat Legislative Assembly, 2017 for the '58 - Dholka Assembly Constituency'. In this Election Petition, the petitioner has made various grievances and has leveled serious allegations, including that of corrupt practice and breach of many of the mandatory instructions of the Election Commission of India, at various stages of the Election process, more particularly at the time of counting of votes. On the basis of the pleadings of the contesting parties, this Court had Page 1 of 23 C/EP/3/2018 ORDER framed 14 issues, reference to which is made herein after (Para : 4), for which trial is going on before this Court.
2. In this trial, the concerned Returning Officer is examined as a witness. His evidence is on record at Exh. 99. The recording of his evidence was concluded on the last date of hearing i.e. 15.03.2019. On the conclusion of the deposition of the Returning Officer, it has become necessary to join certain persons and authority as party respondents in this petition, which is ordered in the concluding part of this order (Paras : 14 and 15). The relevant facts and the circumstances, in which this is being done by this Court, are as under.
3.1 As noted above, challenge in this Election Petition is to the General Election to the Gujarat Legislative Assembly, 2017 for the '58 - Dholka Assembly Constituency'. Mr. Bhupendrasinh Manubha Chudasama (respondent No. 2) was the candidate set up by the Bharatiya Janta Party. Mr. Ashwinbhai Kamsubhai Rathod (the petitioner) was the candidate set up by the Indian National Congress Party. The said election was held on 14.12.2017. The counting and declaration of result took place on 18.12.2017. As per the said result, Mr. Bhupendrasinh Manubha Chudasama (respondent No. 2) is the returned candidate. The returned candidate, at the relevant time, was a Member of the Council of Ministers of the Government of Gujarat, with the portfolio of Revenue Department. At present also, he is a Member of the Council of Ministers of the Government of Gujarat, with the portfolio of the Departments of Education and Law & Justice.
3.2 As per the said Election Result, declared on 18.12.2017, Page 2 of 23 C/EP/3/2018 ORDER total number of valid votes cast in favour of the petitioner were 71203 votes. Total number of valid votes cast in favour of the returned candidate - the respondent no.2 were 71530 votes. The returned candidate thus got elected with the margin of 327 votes. The break-up of the total votes (through EVMs and Postal Ballots) is as under.
Petitioner Respondent Difference
No.2 (the of Votes in
returned favour of
candidate) the
returned
candidate
EVMs 70675 71189 514
Postal 528 341 -187
Ballots
Total 71203 71530 327
3.3 Total votes received by the Returning Officer through postal ballot papers were 1356. Out of these total 1356 postal ballots, the Returning Officer rejected 429 votes. Thus, the number of rejected postal ballots (429 votes) were more than the winning margin (of 327 votes) of the returned candidate.
4. As noted above, the petitioner has made various grievances and has leveled serious allegations in this Election Petition, including that of corrupt practice and breach of many of the mandatory instructions of the Election Commission of India, at various stages of the Election, more particularly at the time of counting of votes. On the basis of the pleadings of the Page 3 of 23 C/EP/3/2018 ORDER contesting parties, this Court had, vide order dated 24.12.2018, framed 14 issues, to be tried in this petition. The said order was one of the many orders challenged by the returned candidate, before the Supreme Court of India by filling SLPs (Civil) Nos. 3075 to 3081 of 2019 and SLP (Civil) No. 3950 of 2019, which were dismissed as withdrawn by common order passed by the Supreme Court of India dated 11.02.2019. Those issues read as under.
1. Whether the petitioner proves that the procedure adopted for counting of votes for '58-Dholka Constituency' was against the orders of the Election Commission of India and was illegal?
2. Whether the petitioner proves that 429 postal ballot papers were illegally rejected at the time of counting of votes ?
3. Whether the petitioner proves that objection was raised by the petitioner, or his election agent, regarding alleged illegal rejection of postal ballot papers and / or non compliance of the orders of the Election Commission of India,at the time of counting of votes ?
4. Whether the petitioner proves that there are discrepancies in the figures of total votes polled, as reflected in the final result sheet published by the Returning Page 4 of 23 C/EP/3/2018 ORDER Officer, vis-a-vis the figures reflected in the Total Voters Turnout Report published by the District Election Officer ?
5. Whether the petitioner proves that there are discrepancies in the number of total votes shown to have been polled through EVMs at the polling stations, visa-vis the number of votes taken into consideration from those EVMs at the time of counting of votes ?
6. Whether the petitioner proves that the result of the election, in so far as it concerns the returned candidate (the respondent No.2) from '58-Dholka Constituency' for the Gujarat State Legislative Assembly Elections, held on 14.12.2017, has been materially affected by improper refusal / rejection of the votes ?
7. Whether the petitioner proves that the result of the election, in so far as it concerns the returned candidate (the respondent No.2) from '58-Dholka Constituency' for the Gujarat State Legislative Assembly Elections, held on 14.12.2017, has been materially affected by non-compliance with the provisions of the Representation of the People Act, and / or Rules or Orders made under the said Act ?
Page 5 of 23 C/EP/3/2018 ORDER8. Whether the petitioner proves that any corrupt practice was committed under Section 123 of the Representation of the People Act, 1951 during the election of '58-Dholka Constituency' held in December 2017 ?
9. Whether the petitioner proves that any corrupt practice was committed by the returned candidate (the respondent No.2) or his election agent or by any person with the consent of the respondent No.2 or his election agent during the election of '58- Dholka Constituency' held in December 2017 ?
10. Whether the petitioner proves that the election of the returned candidate (the respondent No.2) from '58-Dholka Constituency' for the Gujarat State Assembly Elections held on 14.12.2017, needs to be declared as void under Sec. 100(1)(d) (iii) of the Representation of People Act, 1951 ?
11. Whether the petitioner proves that the election of the returned candidate (the respondent No.2) from '58-Dholka Constituency' for the Gujarat State Assembly Elections held on 14.12.2017, Page 6 of 23 C/EP/3/2018 ORDER needs to be declared as void under Sec. 100(1)(d) (iv) of the Representation of People Act, 1951 ?
12. Whether the petitioner proves that the election of the returned candidate (the respondent No.2) from '58-Dholka Constituency' for the Gujarat State Assembly Elections held on14.12.2017, needs to be declared as void under Sec.100(1)(b) of the Representation of People Act, 1951 ?
13. Whether the petitioner proves that he is entitled to be declared as duly elected candidate from '58-Dholka Constituency' for the Gujarat State Assembly Elections held on 14.12.2017 ?
14. What final order to be passed ?
5. The trial, qua the above quoted issues, is going on before this Court.
6. As noted above, the concerned Returning Officer is examined as a witness, his evidence is on record at Exh. 99 and the recording of his evidence was concluded on the last date of hearing i.e. 15.03.2019. It is now, that it has come on record, through the evidence of the Returning Officer himself that, many instructions of the Election Commission of India, including some of the mandatory instructions (at least on seven counts) were violated by the Returning Officer, on the Page 7 of 23 C/EP/3/2018 ORDER day of counting of votes, of the Election in question. The Returning Officer has also deposed before this Court that, before the declaration of the result, the Observer had certified vide Exh.112 that - after having satisfied herself about the fairness of counting of votes and complete accuracy of compilation of result in Form No.20, she had authorized the Returning Officer of 58-Dholka Assembly Constituency to declare the result.
7. The following (Paras 8 to 13) is the comparison of :-
(i) the standing instructions of the Election Commission of India as contained in the booklet called - 'Handbook for the Returning Officers -
2014', which are in public domain (website of the Election Commission of India) and which are on record of this petition at Exh.101, vis-a-vis
(ii) the actual process undertaken by the Returning Officer on the day of counting of votes of the Election in question, as per the evidence of the Returning Officer himself, vide Exh.99.
8. REGARDING MANDATORY REVERIFICATION AND MANDATORY RECOUNT OF POSTAL BALLOTS 8.1 The instruction of the Election Commission of India, as contained in Para : 15.15.5.1 of the said Handbook Exh. 101, regarding mandatory re-verification of Postal Ballots reads as Page 8 of 23 C/EP/3/2018 ORDER under.
'In case the victory margin is less than total number of postal ballots received then there should be a mandatory re-verification of all postal ballots. In the presence of Observer and the RO all the postal ballots rejected as invalid as well as the postal votes counted in favour of each and every candidate shall once again be verified and tallied. The Observer and the RO shall record the findings of re- verification and satisfy themselves before finalizing the result. The entire proceeding should be videographed without compromising the secrecy of ballot and the video-cassette / CD should be sealed in a separate envelope for future reference.' 8.2 The instruction of the Election Commission of India, as contained in Para : 15.30.9 of the said Handbook Exh. 101, regarding mandatory recount of Postal Ballots reads as under.
'The Commission has decided that where the result of an election is going to be decided by difference of postal ballot received by the first two candidates, then there shall be mandatory and comprehensive recount of postal ballot papers, even though no candidate ask for it.' 8.3 Relevant part of the deposition of the Returning Officer, with regard to the compliance of the above quoted instructions of the Election Commission of India, i.e. with regard to (i) mandatory re-verification of Postal Ballots and (ii) mandatory Page 9 of 23 C/EP/3/2018 ORDER and comprehensive recount of Postal Ballot papers, reads as under.
"276. Question : What was the victory margin of the returned candidate (respondent no.2) over the petitioner ?
Ans : 327 votes.
277. Question : You have deposed earlier that, total postal ballots received by you were 1356. Total postal ballots rejected by you were 429. Thus the victory margin of the returned candidate over the petitioner was less than total postal ballots received. In this situation, which of the instructions of the Election Commission of India would come into play ?
Ans. : In this situation, the instructions contained in Paras : 15.30.9 and 15.15.5.1 in the Hand Book (Exh.101) would come into play.
278. Question : Whether you had done the re-counting of postal ballots which is mandatory as per the above referred instructions (para : 15.30.9) ?
Ans. : No. I had not done that re-counting.
279. Question : Whether you had done the re- verification of postal ballots which is mandatory as per the above referred instructions (para :Page 10 of 23 C/EP/3/2018 ORDER
15.15.5.1) ?
Ans. : No. I had not done that re-verification either."
9. REGARDING TIMING OF COMMENCEMENT OF COUNTING OF VOTES FOR THE PENULTIMATE ROUND OF EVMs.
9.1 The instruction of the Election Commission of India, as contained in Para : 15.16.2 of the said Handbook Exh. 101, regarding timing of commencement of counting of votes for the penultimate round (second last round) of EVMs, reads as under.
'After 30 minutes of the commencement of postal ballot counting, the EVM counting can start. The EVMs can be brought under escort (agents can accompany) from the strong room to the counting hall even if the postal ballot counting is still going on. However, the penultimate round of EVM counting shall not commence unless the postal ballot counting is over.' 9.2 Relevant part of the deposition of the Returning Officer with regard to the compliance of the above quoted instructions of the Election Commission of India reads as under.
"282. Question : When the EVMs for the 2nd last round (penultimate round) were brought out of the strong room and were taken to the counting hall ? Ans. : At 11:17:00 hours onwards.Page 11 of 23 C/EP/3/2018 ORDER
283. Question : When the EVMs for 2nd last round were being brought in the counting hall, at that time, was the counting of postal ballot over ?
Ans. : No. That process was not over.
284. Question : What was the stage at Table No.15 when the EVMs for the 2nd last round were being brought in the counting hall ?
Ans. : At the request of the witness, CCTV footage is shown to him of VM626 - On RO table - time 11:07:52 to 11:17:58. On playing the said footage, the witness states that :- all the trays of the candidates are empty and even the distribution of the valid postal ballots candidate-wise had not started at that time."
10. REGARDING PROHIBITION OF USE OF MOBILE PHONE IN THE COUNTING HALL 10.1 The instructions of the Election Commission of India, as contained in Paras : 15.6.3, 15.6.4 and 15.14.1.7 of the said Handbook Exh. 101, regarding prohibition of use of mobile phone in the counting hall, read as under.
'15.6.3 Media centres have to be set up at each Counting Centre. As far as possible, a separate room of adequate size should be set apart for these centres and reasonable facilities like telephone, fax, data communication network etc have to be Page 12 of 23 C/EP/3/2018 ORDER provided. Each returning Officer is required to exclusively deploy one senior officer to be in charge of the Media Centre, preferably from the Public Relations Department. It is important that adequate number of officers/officials are available to assist the officer in charge of the Media Centre at each counting centre so that they can escort the media groups in small manageable numbers to visit counting halls from time to time. Such visits are to be of short duration only. All such visits will be escorted visits conducted by officers identified and earmarked for this purpose in advance. In the media room, adequate arrangements shall be made to keep the mobile phones safely because the mobile phones shall not be allowed to be taken inside the counting halls. Use of mobile phones and other communication equipment shall be allowed from the media centre. Mobile phones shall not be used from anywhere else within the campus.
15.6.4 Since nobody (not even the candidate or RO/ARO etc) except the observer shall be allowed to carry a mobile phone inside the counting hall, the DEOs and ROs will also arrange another room for the candidates, their agents etc to make use of their mobile phones in case of any need. Public Communication Room should also provide for a senior officer and arrangements for safe-keeping of the mobiles etc of the candidates and their agents/representatives.' Page 13 of 23 C/EP/3/2018 ORDER '15.14.1.7 Mobile phones are not to be allowed inside the counting centre. Only Commission's Observer's are allowed to carry mobile phone.' 10.2 Relevant part of the deposition of the Returning Officer with regard to the compliance of the above quoted instructions of the Election Commission of India reads as under.
'298. Question : The witness is shown the CCTV footages VM239 - RO table - Timings -
08:48:22 to 08:48:36 11:00:23 to 11:00:59 11:01:58 to 11:02:28 12:13:18 to 12:13:37 12:44:15 to 12:45:21 12:47:08 to 12:48:47 13:09:10 to 13:10:20 Can you explain what do you see ?
Ans. : In those footages, I see talking on my mobile phone.
299. Question : Can you recollect whom did you call or who called you at that time ?
Ans. : Those were official calls and may be one or two calls could be personal calls as well.' Page 14 of 23 C/EP/3/2018 ORDER
11. REGARDING FORM 20 (FINAL RESULT SHEET) 11.1 The instruction of the Election Commission of India, as contained in Para : 15.15.3.6 of the said Handbook Exh. 101, regarding preparation of Final Result Sheet (Form 20), reads as under.
'The valid votes should then be counted and each candidate credited with the votes given to him. The total number of postal votes received by each candidate should then be calculated, entered in the Result Sheet in Form 20 in the appropriate place and announced by you aloud for the information of the candidates.' 11.2 Relevant part of the deposition of the Returning Officer with regard to the compliance of the above quoted instructions of the Election Commission of India, reads as under.
'287. Question : Before announcing the figures of postal ballots, at 12:24:00 hours, as stated by you above, did you enter that figure in Form No.20 ?
Ans. : I do not remember at this stage.
288. Question : What is the requirement in this regard, as per the instructions of the Election Commission of India ?
Ans. : From the Hand Book (Exh.101), I say that Para : 15.15.3.6 would come in play at that stage.
Page 15 of 23 C/EP/3/2018 ORDER289. Question : When did you declare the final result?
Ans. : At 13:16:00 hours.
290. Question : Before declaring the final result, whether all figures were filled in - in Form No.20 ?
Ans. : Yes, that was done.
291. Question : When you say that all the figures were filled in - in Form No.20 before declaring the final result, it also included the figures of postal ballots ?
Ans. : Yes.
292. Question : When you entered the figures of postal ballots received by each candidate in Form No.20, before declaring the final result at 13:16:00 hours, as stated by you above, did you enter the same figure of postal ballots which you had announced at 12:24:00 hours ?
Ans. : No, it is not the same figure. There is difference in the figures of postal ballots as entered in Form No.20 and what was announced by me at 12:24:00 hours.
At this stage, the witness requested that he be Page 16 of 23 C/EP/3/2018 ORDER permitted to give some explanation in this regard.
On being permitted to do so, he states that :-
As it is evident even from the CCTV footage which is played in the Court in this regard today, even I had asked for the said figure from somebody else and subsequently, when it came to my notice that there is difference in that regard, I entered correct figures in Form No.20. I further say that, the figures which I had announced - what each candidate has got and what I entered in Form No.20, is the same in both the cases."
12. SATISFACTION TO BE RECORDED BY THE OBSERVER BEFORE AUTHORIZING THE DECLARATION OF THE FINAL RESULT 12.1 The instruction of the Election Commission of India, as contained in Para : 16.2.2 of the said Handbook Exh. 101, regarding satisfaction to be recorded by the Observer before authorizing the declaration of the final result by the Returning Officer, reads as under.
'No Returning Officer shall declare the result without receiving the authorization in the format as detailed above from the Observer. It shall be the personal responsibility of the Observer and Returning Officer to ensure fairness of counting of votes and accurate compilation of result.' 12.2 Relevant part of the deposition of the Returning Officer Page 17 of 23 C/EP/3/2018 ORDER with regard to compliance of the above quoted instruction of the Election Commission of India reads as under.
"273. Question : Whether you had got authorisation from the Observer before the declaration of the final result ?
Ans. : Yes. The same is on record at Annexure - R-1 to the written statement which I had filed earlier in this petition, which is on record as Exh.10. The said document (R-1 of Exh.10) is given Exh.No.112."
12.3 The said document Exh.112, which is the certificate given by the Observer, regarding satisfaction recorded by her before authorizing the declaration of the final result by the Returning Officer, reads as under :-
"DECLARATION OF RESULT Mrs. Vinita Bohra (IAS), Observer code (G22074) For 58-Dholka Assembly Constituency / Assembly segment of 17 - Kheda Parliamentary Constituency, after having satisfied myself about the fairness of counting of votes and complete accuracy of compilation of result in Form No.20 hereby authorize the Returning Officer of 58-Dholka Assembly Constituency to declare the result.
Sd/-
Name of the observer - Mrs. Vinita Bohra Code of the observer - G22074 Assembly Constituency No. & Name: 58-Dholka"Page 18 of 23 C/EP/3/2018 ORDER
13. VIDEO-GRAPHY OF THE COUNTING PROCESS 13.1 The instruction of the Election Commission of India, as contained in Para : 15.14.1.9 of the said Handbook Exh. 101, regarding video-graphy of the Counting process, reads as under.
'A CD containing the record of complete video- graphy of counting process should be given by the Returning Officer to all candidates or their election agents free of cost after the counting process is over.' 13.2 Relevant part of the deposition of the Returning Officer with regard to compliance of the above quoted instruction of the Election Commission of India reads as under.
"119. Question : By Exh.85, you declined to give DVD and thereby you have breached one more instruction of the Election Commission of India
- What do you say ?
Ans. : The video-graphy inside the counting hall was done by the agency appointed by the District Election Officer, Ahmedabad and as the Returning Officer, I was not having the DVD at the time when the application was made and therefore, the same was not given.
121. Question : To how many candidates, did you give the said DVD ?
Ans. : Not to even one."Page 19 of 23 C/EP/3/2018 ORDER
14.1 On conjoint consideration of :-
(i) the relevant facts,
(ii) the Issues being tried in this petition, (as
quoted above in para : 4),
(iii) the comparison of :-
(a) the standing instructions of the Election Commission of India as contained in the booklet called - 'Handbook for the Returning Officers - 2014', which are in public domain (website of the Election Commission of India) and which are on record of this petition at Exh.101, vis-a-vis
(b) the actual process undertaken by the Returning Officer on the day of counting of votes of the Election in question, as per the evidence of the Returning Officer himself, vide Exh.99, as quoted in paras : 8 to 13 above,
(iv) the certificate given by the Observer (Exh.
112) before declaration of the result of the Election in question (as quoted in Para:12.3 above), and
(v) the mandate of Section 99 of the Representation of the People Act, 1951, it would be necessary to give opportunity to both the concerned officers i.e. the Returning Page 20 of 23 C/EP/3/2018 ORDER Officer and the Observer, to put their case before this Court. For this purpose, they need to be joined as party respondents.
14.2 It would also be just and proper to put the facts noted in this Order to the notice of the Election Commission of India. It is noted that, what is recorded above is neither the opinion of the Court nor this Court has arrived at any judgment on any issue, however the facts noted above are so glaring that, this Court has thought it prudent to put the above noted facts to the notice of the Election Commission of India, so that it can consider and look into it and take appropriate corrective / preventive measures, if it so desires. For this purpose, the Election Commission of India also needs to be joined as party respondent. While joining the Election Commission of India as party respondent in this petition, this Court is conscious of the fact that the Election Commission of India can not be a contesting party, so far the Election in question is concerned. It is for the petitioner to prove his case and it is for the returned candidate to defend his Election. However, as noted above, the facts recorded above are so glaring that this Court has thought it prudent to put it to the notice of the Election Commission of India at this stage itself, so that it can consider and look into it, and take appropriate corrective / preventive measures now, if it so desires. For this limited purpose, the Election Commission of India needs to be and is being joined as party respondent.
14.3 It is noted that, while joining the Returning Officer (in his personal capacity) and the Election Commission of India as party respondents, this Court is conscious of the fact that, both of them were already party respondents in this petition as Page 21 of 23 C/EP/3/2018 ORDER respondents No.13 and 14 respectively, however both of them were deleted as party respondents, at their request, on the applications being Election Application No.11 of 2018 and Election Application No.41 of 2018. Reference in this regard is made to :- (i) the order dated 27.11.2018 recorded on Election Application No.11 of 2018, and (ii) the orders dated 19.12.2018 and 09.01.2019 recorded on Election Application No.41 of 2018. However, in view of the deposition of the Returning Officer, which concluded on the last day of the proceedings i.e. 15.03.2019, the necessity of joining them as party respondents has cropped up and therefore they are being joined as party respondents, at this stage, for the reasons recorded in paras :
14.1 and 14.2 above.
14.4 Since the Election Commission of India and both the officers, who are being joined as party respondents, may be busy with the Election process at present, in the event any request is made by or on behalf of any of them for adjournment on the next date of hearing, the Court may consider the same for appropriate accommodation.
15.1 In view of above, the following order is passed.
15.2 The following persons / authority are ordered to be joined as party respondent Nos. 13 to 15 in this petition.
(1) Mr. Dhaval Jani, G.A.S. Deputy Collector at Dholka, District : Ahmedabad (the Returning Officer of '58 Dholka Assembly Constituency') as Respondent No. 13 Page 22 of 23 C/EP/3/2018 ORDER (2) The Election Commission Of India Nirvachan Sadan, Ashoka Road, New Delhi - 110001.as Respondent No. 14
(3) Mrs. Vinita Bohra , I.A.S. (Notice to be served through The Election Commission of India) Nirvachan Sadan, Ashoka Road, New Delhi - 110001.as Respondent No. 15
15.3 Issue notice to the newly added respondent Nos.13 to 15 returnable on 16.04.2019, with the clarification that, since all the newly added respondents may be busy with the Election process at present, in the event any request is made by or on behalf of any of them, for adjournment on the next date of hearing, the Court may consider the same for appropriate accommodation.
Over and above normal mode of service, Direct service is permitted. It would be open for the petitioner to serve the newly added respondents No.13 to 15, through registered Post.
(PARESH UPADHYAY, J) M.H. DAVE/1 Page 23 of 23