Gujarat High Court
Ahir Meramanbhai Marakhibhai vs Pabubha Viramabha Manek on 12 April, 2019
Equivalent citations: AIRONLINE 2019 GUJ 43
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/EP/20/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION PETITION NO. 20 of 2018
FOR APPROVAL AND SIGNATURE: sd/-
HONOURABLE MR.JUSTICE PARESH UPADHYAY
============================================
1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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AHIR MERAMANBHAI MARAKHIBHAI ...PETITIONER
Versus
PABUBHA VIRAMABHA MANEK & ORS. ...RESPONDENTS
============================================
Appearance :
MR B.M. MANGUKIYA, ADVOCATE for the PETITIONER
MR C.B. UPADHYAYA, ADVOCATE for the RESPONDENT No.1
RESPONDENT NOS.2 to 12 are served
============================================
Page 1 of 51
C/EP/20/2018 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 12/04/2019
CAV JUDGMENT (Exh.68)
1. Challenge in this Election Petition is made to the General Election to the Gujarat Legislative Assembly held in December 2017 for the '82-Dwarka Constituency'. The respondent No.1 is the returned candidate in the said election from the 82-Dwarka Constitunecy. The challenge is principally on the ground that, the nomination of the respondent No.1 was illegally accepted by the Returning Officer. It is prayed by the petitioner that the said election of the respondent No.1 be declared as void under Section 100(1)(d)(i) 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.1.
2.1 The case of the petitioner is recorded in para:3.
2.2 The case of the respondent No.1 - the Returned Candidate is recorded in para:4.
2.3 Reference qua other respondents is made in para:5.
2.4 Issues framed by this Court, which are tried in this petition, are recorded in para:6.
2.5 Answers to the said issues are noted in para:7.
2.6 The reasons and the findings of this Court, for arriving at the answers qua each issue, are noted as under.
Page 2 of 51 C/EP/20/2018 CAV JUDGMENT2.6.1 For Issue No.1, para:9 to 17.
2.6.2 For Issue No.2, para:18.
2.6.3 For Issue No.3, para:19 to 25 & para:26 to 28.
2.6.4 For Issue Nos.4, para:29.
2.6.5 For Issue Nos.5, para:30.
2.6.6 For Issue No.6, para:31 to 34.
2.7 The final order of the Court (Issue No.7), is recorded in para:35 to 38.
3. The case of the petitioner.
3.1 The case of the petitioner is to the effect that, General Election to the Gujarat Legislative Assembly was held in December 2017. The petitioner had contested the said election from the '82-Dwarka Constituency'. The petitioner was the candidate set up by the Indian National Congress Party. The last date of submission of nomination was 21.11.2017. The petitioner had submitted his nomination to the Returning Officer on 21.11.2017. The Returning Officer also received a nomination of the respondent No.1, as a candidate setup by the Bhartiya Janata Party, on 20.11.2017. The scrutiny of all the nominations was held on 22.11.2017.
3.2 On the date of scrutiny (22.11.2017), the petitioner gave his objection to the Returning Officer stating that, the nomination of the respondent No.1 was defective, since in his Page 3 of 51 C/EP/20/2018 CAV JUDGMENT nomination, the number and name of the constituency was not mentioned. It was also pointed out to the Returning Officer by the petitioner that, not only the number and name of the constituency was not shown by the respondent No.1, instead at that place - the name of the proposer was shown. According to the petitioner, the said nomination of the respondent No.1 was required to be rejected. The petitioner had given written objection in that regard to the Returning Officer on 22.11.2017 (Exh.51). It was also pointed out by the petitioner to the Returning Officer that, non-mentioning of the number and name of the constituency in the first line of the nomination form (part-I) was fatal, in view of the decision of the Supreme Court to India in the case of Prahladdas Khandelwal Vs. Narendra Kumar Salve reported in 1973 AIR SC 178. A copy of the said judgment was also annexed with Exh.51. The said objection of the petitioner was responded on behalf of the respondent No.1, on that very day i.e. 22.11.2017 (Exh.52). The Returning Officer passed an order on 22.11.2017 (Exh.53), rejecting the objection of the petitioner and thereby accepted the nomination of the respondent No.1. Subsequently, the election was held on 09.12.2017. Counting of votes took place on 18.12.2017 and the respondent No.1 was declared as the returned candidate. The petitioner was the next candidate having secured maximum votes after the respondent no.1. The result was so declared by the Returning Officer. It is this election of the respondent No.1, as the returned candidate from '82-Dwarka Constituency', which is challenged by the petitioner in this petition, principally on the ground that the acceptance of the nomination of the respondent No.1 by the Returning Officer was illegal and further that, the result of the said election, in so far as it concerns the returned candidate Page 4 of 51 C/EP/20/2018 CAV JUDGMENT (i.e. the respondent No.1), has been materially affected by the said improper acceptance of his nomination. It is therefore prayed by the petitioner that, the election in question be declared as void under Section 100(1)(d) of the Representation of the People Act, 1951 (for short 'the Act').
3.3 It is additionally contended and prayed on behalf of the petitioner that, after declaring the election of the respondent no.1 as void, the petitioner be declared as elected candidate in the said election. It is submitted that this petition be allowed.
3.4 Over and above the pleadings in the form of the petition and annexures therewith, at the time of trial, the petitioner has also led oral as well as documentary evidences, the details of which are as under.
3.5.1 The petitioner himself has entered the witness box as PW-2 and his deposition is recorded at Exh.58.
3.5.2 The concerned Returning Officer (Mr.P.A.Jadeja, Deputy Collector, Dwarka) was examined as PW-1. His deposition is on record at Exh.48.
3.5.3 While giving the deposition Exh.48, the concerned Returning Officer (PW-1 - Mr.P.A. Jadeja, Deputy Collector) referred to seven documents, which were tendered by him to the Court earlier. Those seven documents were identified by him and were deposed to be the original record of the Election in question. Those documents are exhibited at Exh.49 to 55, the details of which are as under.
Page 5 of 51 C/EP/20/2018 CAV JUDGMENT(i) The nomination form submitted by the respondent No.1, with annexures thereto, which was accepted by the Returning Officer of the '82-Dwarka Constituency'.
(Exh.49)
(ii) The nomination form submitted by the petitioner for the '82-Dwarka Constituency' with annexures thereto. (Exh.50)
(iii) The objection raised by the petitioner against the nomination of the respondent No.1 dated 22.11.2017. (Exh.51)
(iv) The reply filed by the respondent No.1 dated 22.11.2017 against the objection raised by the petitioner against the nomination of the respondent No.1. (Exh.52)
(v) The order recorded by returning officer rejecting the objection raised by the petitioner against the nomination of the respondent No.1 dated 22.11.2017. (Exh.53)
(vi) The Final Result Sheet - Form No.20 of '82-Dwarka Constituency of the State Legislative Assembly' dated 18.12.2017. (Exh.54)
(vii) The certificate of election declaring respondent No.1 as duly elected from 82- Dwarka Constituency, as official candidate of Bhartiya Janata Party, dated 18.12.2017. (Exh.55) 3.6 Written submissions on behalf of the petitioner is on record at Exh.65.
Page 6 of 51 C/EP/20/2018 CAV JUDGMENT3.7 Mr.Mangukiya, learned advocate for the petitioner has relied on the following authorities in support of his submissions.
(i) (2017) 2 SCC 487- Mairembam Prithviraj Vs. Pukhrem Sharatchandra Singh.
(ii) (2018) 14 SCC 1 - Madiraju Venkata Ramana Raju Vs. Peddireddigari Ramchandra Reddy.
(iii) 1960 AIR SC 1049 - Brijendralal Gupta Vs. Jwalaprasad.
(iv) 1952 AIR SC 16- Commissioner of Police Vs. Gordhandas Bhanji.
(v) 1978 AIR SC 851 - Mohinder Singh Gill Vs. The Chief election Commissioner, New Delhi.
(vi) 1973 AIR SC 178 - Prahladdas Khandelwal Vs. Narendra Kumar Salve.
(vii) 1969 (1) SCR 499 (1969 AIR SC 395)- Narbada Prasad Vs. Chhagan Lal.
(viii) 1970 (1) SCR 530 (1970 AIR SC 110) - Ram Dayal Vs. Brijraj Singh.
(ix) (2016) 10 SCC 715 - Rajendra Kumar Meshram Vs. Vanshmani Prasad Verma.
(x) (1972) 3 SCC 131 - Ram Awadesh Singh Vs. Smt. Sumitra Devi.
Page 7 of 51 C/EP/20/2018 CAV JUDGMENT4. The case of the Respondent No.1 (the Returned Candidate) 4.1 The respondent No.1 filed his written statement Exh.25, to contest this petition. The case of the contesting respondent No.1, in substance, is to the effect that, though there is no dispute about the fact that the number and name of the constituency i.e. '82-Dwarka' was not stated in Part-I (in the first line) of his nomination form, the said exclusion of the number and name of the constituency in the nomination can not be said to be a defect at all, and even if it was to be treated as a defect, it can not be said to be a defect of substantial character, warranting rejection of the said nomination. The relevant part of the said written statement Exh.25 reads as under.
"4. It is submitted that it is an undisputed fact that in the Nomination Form, in the first line of the said form, instead of writing name of the Constituency the proposer's name is reflected and it is submitted that the said aspect is neither of a nature of "substantive character"
and/or 'defect' as contemplated under the provisions of Representation of People Act, 1951....."
4.2 Without prejudice to the above contention, it is additionally contended on behalf of the respondent No.1 that, exhaustive details were furnished by the respondent No.1 in the affidavit submitted by him, along with his nomination and Page 8 of 51 C/EP/20/2018 CAV JUDGMENT therefore the objection by the petitioner against the nomination of the respondent No.1 was not well founded. It is submitted that the Returning Officer did no wrong by accepting the nomination of the respondent No.1 and challenge thereto needs to be dismissed and therefore this petition be dismissed.
4.3 Over and above the written statement (Exh.25), the respondent No.1 also led oral as well as documentary evidences, the details of which are as under.
4.3.1 The respondent No.1 examined a sole witness viz., Mr.Devsibhai Laxmanbhai Parmar, who was Election Agent of the respondent No.1. His evidence is on record at Exh.61.
4.3.2 The written arguments were also submitted on behalf of the respondent No.1 vide Exh.66.
4.3.3 While making final oral submissions, learned advocate for the respondent No.1 also relied upon the standing instructions of the Election Commission of India, as contained in the booklet called - 'Handbook for the Returning Officers - 2014' which has been in public domain (including on the website of the Election Commission of India). The said document was taken on record of this petition at Exh.67.
4.4 By referring to the said document Exh.67, more particularly para:6.9.1 and 6.9.2 thereof, it is contended on behalf of the respondent No.1 that, in view of the said instructions, the action of the Returning Officer of not rejecting the nomination of the respondent No.1 was justified. Those instructions read as under.
Page 9 of 51 C/EP/20/2018 CAV JUDGMENT"6.9.1 Do not reject any nomination paper on the ground of any defect, which is not of a substantial character [Section 36(4) of the said Act]. Any mistake or error of a technical of clerical nature should, therefore, be ignored by you.
6.9.2 You may also note that Rule 4 of the Conduct of Elections Rules, 1961, lays down that failure to complete, or defect in completing a declaration regarding symbols in the nomination paper is not a defect of a substantial character."
4.5 In support of his submissions, Mr.C.B.Upadhyaya, learned advocate for the respondent No.1 has also relied on the following authorities.
(i) (2003) 8 SCC 613 - Harikrishna Lal Vs. Babu Lal Marandi.
(ii) (2014) 14 SCC 162 - Kisan Shankar Kathore Vs. Arun Dattatray Sawant.
(iii) (2014) 14 SCC 189 - Resurgence India Vs. Election Commission of India.
(iv) (1972) 3 SCC 131 - Ram Awadesh Singh Vs. Smt. Sumitra Devi
(v) (1997) 2 SCC 228 - Rafiq Khan Vs. Laxmi Narayan Sharma.
Page 10 of 51 C/EP/20/2018 CAV JUDGMENT(vi) (2002) 5 SCC 294 - Union of India Vs. Association for Democratic Reforms.
(vii) (2003) 4 SCC 399 - People's Union for Civil Liberties (PUCL) Vs. Union of India.
5. The case of the petitioner and the contesting respondent No.1 is as noted in para:3 and 4 above. There are total 12 respondents. All are served. Except the contesting respondent No.1, no other respondent has contested this petition. Even appearance is not entered on behalf of any of the respondent Nos.2 to 12.
6. Issues framed by the Court 6.1 On the basis of the pleadings of the parties and the material on record, the following seven issues were framed by the Court vide order dated 07.01.2019.
6.2 These issues were framed considering the fact that, there was no dispute about the fact that, in the first line of Part - I of the nomination submitted by the respondent No.1, neither the number nor the name of the constituency was shown. This is not only 'undisputed fact' but 'admitted fact', in view of the written statement of the respondent No.1, the relevant of which is already noted in para:4.1 above. No issue was therefore required to be framed in that regard. However, what would be the effect and the consequences thereof under the Representation of People Act, 1951, are the issues, which were required to be framed and were accordingly framed by this Page 11 of 51 C/EP/20/2018 CAV JUDGMENT Court vide Exh.40. Those issues are as under.
-:: ISSUES ::-
1. Whether the petitioner proves that non-
mentioning of 'the name of the constituency', in the first line of part - 1 of the nomination form, submitted by the proposer of the respondent No.1, is a 'defect of substantial character' as contemplated under the provisions of the Representation of the People Act, 1951 ?
2. Whether the petitioner proves that the nomination of the respondent No.1 was required to be rejected by the Returning Officer of '82-Dwarka Constituency' ?
3. Whether the petitioner proves that the action of the Returning Officer of '82-
Dwarka Constituency' of rejecting the objections filed by the petitioner, against the nomination of the respondent No.1 was illegal ?
4. Whether the petitioner proves that the result of the election, in so far as it concerns the returned candidate (the respondent No.1) from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections, held on 09.12.2017, has been materially affected by improper acceptance of the nomination of Page 12 of 51 C/EP/20/2018 CAV JUDGMENT the respondent No. 1 ?
5. Whether the petitioner proves that the election of the returned candidate (the respondent No. 1) from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections, held on 09.12.2017, needs to be declared as void under Section 100(1)(d)(i) of the Representation of the People Act, 1951 ?
6. Whether the petitioner proves that he is entitled to be declared as duly elected candidate from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections held on 09.12.2017 ?
7. What final order to be passed ?"
7. Answers by the Court to the above noted issues Issue No.1 - In affirmative (vide para:9 to 17) Issue No.2 - In affirmative (vide para:18) Issue No.3 - In affirmative (vide para:19 to 25 & 26 to 28) Issue No.4 - In affirmative (vide para:29) Issue No.5 - In affirmative (vide para:30) Issue No.6 - In negative (vide para:31 to 34) Issue No.7 - As per final order (para: 35 to 38).
8. While recording the reasons and the findings qua the above noted issues (vide para:6) and the answers thereto (vide Page 13 of 51 C/EP/20/2018 CAV JUDGMENT para:7), this Court has taken into consideration the material on record, which includes the oral as well as documentary evidences led by and on behalf of the petitioner and the respondent No.1, and also the decisions of the Supreme Court of India relied by learned advocates for the respective parties, the details of which are noted in para:3 and 4 above. So far the oral evidence led by both the sides are concerned, it is noted that, since the controversy in this petition is principally to be decided on the basis of the documentary evidences, the thrust qua the oral evidence was, to bring those documentary evidences on record on one hand, and to contest it on the other hand. The relevance of the oral evidence, in the facts of this case therefore needs to be weighed from this angle. Further, while considering the evidence of a sole witness of the respondent No.1 (Exh.61), this Court has considered the contents of the said deposition in totality, vis-a-vis the relevance thereof, qua the issues being tried. The said evidence also needs to be and is weighed vis-a-vis the contents and the consequences of the order passed by this Court dated 06.02.2019 (Exh.62).
9. The findings of the Court qua Issue No.1 9.1 The said issue reads as under.
"Whether the petitioner proves that non-
mentioning of 'the name of the constituency', in the first line of part - 1 of the nomination form, submitted by the proposer of the respondent No.1, is a 'defect of substantial character' as Page 14 of 51 C/EP/20/2018 CAV JUDGMENT contemplated under the provisions of the Representation of the People Act, 1951 ?"
9.2 Section 33 of the Representation of the People Act, 1951 mandates that the nomination paper has to be completed in the prescribed form. The said form is prescribed under Rule 4 of the Conduct of Election Rules, 1961 ('the Rules' for short). Different forms (Form 2A to 2E) are prescribed under the said Rule. In case of a candidate setup by a recognised political party, Form 2B (amongst Form 2A to 2E) is applicable.
9.3 The petitioner was setup as a candidate by the Indian National Congress Party. The respondent No.1 was set up as a candidate by the Bhartiya Janata Party. Thus both of them were the candidates setup by the recognised political parties and therefore Form 2B, as prescribed under Rule 4 of the Rules, would be applicable qua both of them.
9.4 It is not in dispute that, both these candidates i.e. the petitioner and the respondent No.1 had used Form 2B for their respective nominations. The nomination forms of both these contesting parties, in original, are on record. The nomination form of the respondent No.1 (the Returned Candidate), in original, is on record of this petition at Exh.49. The nomination form of the petitioner, in original, is on record of this petition at Exh.50. Those forms were produced on the record of this petition by the Returning Officer himself on 24.12.2018, pursuant to the order of this Court dated 19.12.2018. The Returning Officer had, while giving his deposition on 22.01.2019 (vide Exh.48) deposed that those nomination forms were original record of the election in question. They are in Page 15 of 51 C/EP/20/2018 CAV JUDGMENT Gujarati. It is nobody's case that there is any error, in-accuracy or ambiguity in the translation of the said Form 2B, from English to Gujarati, which would be common for the whole of the State of Gujarat.
10.1 The format of the above referred Form 2B (Part-I thereof), which is relevant for this petition, reads as under.
" FORM 2B
(See rule 4)
NOMINATION PAPER
Election to the Legislative Assembly
of..................... (State)
STRIKE OFF PART I OR PART II BELOW WHICHEVER IS NOT APPLICABLE PART I (To be used by candidate set up by recognised political party) I nominate as a candidate for election to the Legislative Assembly from the ........... Assembly Constituency.
Candidate's name....... Father's/mother's/husband's name............His postal address........ His name is entered at Sl. No.......in Part No. ....... of the electoral roll for ..............Assembly constituency.
My name is .......and it is entered at Sl.
No..............in Part No.............of the electoral roll for the..............Assembly constituency.
Date .......... Signature of the Proposer."
10.2 The relevant part of the nomination submitted by the petitioner, to the Returning Officer, (translated from original Page 16 of 51 C/EP/20/2018 CAV JUDGMENT Gujarati) reads as under. The said form is on record at Exh.50.
" FORM 2B
(See rule 4)
NOMINATION PAPER
Election to the Legislative Assembly of Gujarat State STRIKE OFF PART I OR PART II BELOW WHICHEVER IS NOT APPLICABLE PART I (To be used by candidate set up by recognised political party) I nominate as a candidate for election to the Legislative Assembly from the 82- Dwarka Assembly Constituency.
Candidate's name Ahir Meraman Markhi
Father's/mother's/husband's name Markhi Jethabhai
Goriya. His postal address- Flat No.205, Shivam
Apartment, Opposite M.J.Goriya College, Ramnath Society, Shaktinagar, Khambhaliya - 361305, District : Devbhumi Dwarka. His name is entered at Sl. No.707 in Part No. 156/317 of the electoral roll of 4, for 82-Dwarka Assembly constituency.
My name is Goriya Rakesh Meraman and it is entered at Sl. No.711 in Part No.156/317 of the electoral roll of 4, for the 82-Dwarka Assembly constituency.
Sd/-
Date 20.11.2017 Signature of the Proposer."
10.3 The relevant part of the nomination submitted by the respondent No.1, to the Returning Officer, (translated from original Gujarati) reads as under. The said form is on record at Exh.49.
Page 17 of 51 C/EP/20/2018 CAV JUDGMENT " FORM 2B
(See rule 4)
NOMINATION PAPER
Election to the Legislative Assembly of Gujarat State STRIKE OFF PART I OR PART II BELOW WHICHEVER IS NOT APPLICABLE PART I (To be used by candidate set up by recognised political party) I nominate as a candidate for election to the Legislative Assembly from the Dharnant Bhulabhai Chavda Assembly Constituency.
Candidate's name Pabubha Virambha Manek Father's/mother's/husband's name Virambha Ashabha Manek His postal address"Bhagwati Nivas" Opposite Vyomani Mataji Temple, Jawahar Road, Okha Port - 361350. His name is entered at Sl. No.22 in Part No. 2/317 of the electoral roll of 1-Vyomani Temple to Jawahar Road - Okha, for the 82-Dwarka Assembly constituency.
My name is Dharnant Bhulabhai Chavda and it is entered at Sl. No.249 in Part No.101/317 of the electoral roll of Koralavadi Area - Dwarka for the 82-Dwarka Assembly constituency.
Sd/-
(Dharnant Bhula) Date 20.11.2017 Signature of the Proposer."
11. From the above, the following facts are clear.
11.1 Part:I of the said Form 2B contains three statements, before the date and signature of the proposer. Those three statements read as under.
(i) I nominate as a candidate for election to the Page 18 of 51 C/EP/20/2018 CAV JUDGMENT Legislative Assembly from the ........... Assembly Constituency.
(ii) Candidate's name.................... Father's/ mother's/ husband's name............His postal address........ His name is entered at Sl. No.......in Part No. ....... of the electoral roll for ..............Assembly constituency.
(iii) My name is .......and it is entered at Sl. No..............in Part No.............of the electoral roll for the..............Assembly constituency.
Date .......... Signature of the Proposer.
11.2 The first statement should contain the number and name of the Assembly Constituency. In the present case, it is - '82 Dwarka'.
11.3 The second statement should contain the name and other details of the candidate, whose name is being proposed.
11.4 The third statement should contain the name and other details of the proposer.
11.5 So far the above noted second and third statements are concerned, there is no dispute that the nomination form of both the contesting parties are in order, to that extent.
11.6.1 The dispute is about the first statement. In the nomination (Form 2B) of the petitioner, the first statement does contain the information of the number and name - both, of the Assembly Constituency i.e. 82-Dwarka, as required. It Page 19 of 51 C/EP/20/2018 CAV JUDGMENT reads thus:- "I nominate as a candidate for election to the Legislative Assembly from the 82- Dwarka Assembly Constituency."
11.6.2 However in the said first statement of the nomination (Form 2B) of the respondent No.1, there is no mention of either number, or the name of the constituency. Instead, it contains the name of the proposer - 'Dharnant Bhulabhai Chavda'. It reads thus:- "I nominate as a candidate for election to the Legislative Assembly from the Dharnant Bhulabhai Chavda Assembly Constituency."
11.6.3 Further, in the third statement of the said form of the respondent No.1, the name and other details of the proposer are again shown, as required. Thus, in the Part-I of the nomination of the respondent No.1, neither the number nor the name of the Assembly Constituency, from where the said candidate was contesting the election i.e. '82- Dwarka', is shown at all. It is this defect, which is the point at issue.
11.7 In view of above, it is proved that there is complete exclusion of 'the number and name of the constituency' in the first line of Part-I of the nomination submitted by the respondent No.1. Even otherwise, in view of the written statement of the respondent No.1, the relevant of which is already quoted above, it is not only 'undisputed fact' but 'admitted fact'. Inspite of this, since this aspect goes to the root of the matter, this Court has thought it proper to satisfy itself on this material aspect, while recording findings qua Issue No.1.
Page 20 of 51 C/EP/20/2018 CAV JUDGMENT12.1 The above noted exclusion of 'the name and number of the constituency' in the first line of Part-I of the nomination form submitted by the respondent No.1, is a defect in the nomination form. Still, there can be, and there is an argument on behalf of the returned candidate - the contesting respondent No.1 that, such exclusion can not be said to be 'a defect of substantial character', warranting rejection of the nomination form.
12.2 To appreciate, what can be said to be 'a defect of substantial character' and what are the defects which can not be said to be defect of substantial character, the language of Section 36(4), Section 33(1) and 33(4) of the Act, needs to be kept in view.
12.3 The relevant part of Section 36 of the Act, reads as under.
"36. Scrutiny of nomination - (1) On the date fixed for the scrutiny of nominations under section 30, the candidates,.......
(2) .......
(3) .......
(4) The returning officer shall not reject any nomination paper on the ground of any [****] defect which is not of a substantial character.
......."
12.4 The relevant part of Section 33 of the Act, reads as under.
"Section 33 - Presentation of nomination paper Page 21 of 51 C/EP/20/2018 CAV JUDGMENT and requirements for a valid nomination -
(1) On or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o' clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:
Provided that .......
(2) .......
(3) .......
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:
[Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with Page 22 of 51 C/EP/20/2018 CAV JUDGMENT respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.] ......."
12.5 The conjoint reading of Sections 36(4), 33(1) and 33(4) of the Act, would lead to the conclusion that :- it would not be open to the Returning Officer to reject all the defective nomination papers. Even if any nomination is defective, there are certain defects, which the Returning Officer would either overlook or put it to the notice of the concerned candidate, to correct / rectify it. Such defects are provided in proviso to Sub-
section 4 of Section 33 of the Act. The defects which are not described as such in the said proviso can not be overlooked by the Returning Officer. He can also not permit correction / rectification in that regard.
13.1 In the present case, there is complete exclusion of the name and number of the Constituency in the first line of Part-I of the Nomination Form of the respondent No.1. This is the only place in Part-I of Form 2B, where this information is required to be and could be stated. This Court has considered all the contingencies provided in the proviso to Sub-section 4 of Section 33 of the Act, which are defects, but can not be said to be the defects of substantial character. The exclusion of the Page 23 of 51 C/EP/20/2018 CAV JUDGMENT name and number of the constituency in the nomination, which is the case on hand, can not be termed as a defect, covered by any of the contingencies described under the said proviso to Sub-section 4 of Section 33 of the Act.
13.2 On merits also, the information regarding the name and number of the Assembly Constituency from where the candidate is to contest the election, can not be said to be an irrelevant and / or insignificant information, the exclusion of which could be overlooked by the Returning Officer. It is very vital information. Non-mentioning thereof would also amount to failure to comply with the provisions of Section 33 of the Act. The said defect would therefore fall under the head of 'a defect of substantial character' as contemplated under the provisions of the Act. The answer to issue No.1, therefore needs to be given in affirmative.
13.3 Reliance placed by learned advocate for he respondent No.1 on the decisions of the Supreme Court of India in the case of Ram Awadesh Singh Vs. Smt. Sumitra Devi reported in (1972) 3 SCC 131 and in the case of Rafiq Khan Vs. Laxmi Narayan Sharma reported in (1997) 2 SCC 228, would not help the respondent No.1, in the facts of this case and for the reasons recorded above.
14. It is contended, on behalf of the respondent No.1 that, since exhaustive information is disclosed in the affidavit filed by the respondent No.1 which was annexed with the nomination, non-mentioning of the number and name of the constituency in Part-I of the Form 2B is of no consequence, at least it would not be fatal. This argument would not help the respondent No.1 for more than one reasons. Firstly, the said Page 24 of 51 C/EP/20/2018 CAV JUDGMENT affidavit is filed, as required under Section 33A of the Act. The Act was amended with the insertion of the said Section 33A, keeping in view the right of the people to have complete details and information of the candidate. Any information given by the candidate, as required under Section 33A of the Act, can not be and is not, in lieu of the requirement of submitting the Nomination paper, completed in the prescribed Form, as contemplated under Section 33 of the Act. Secondly, such affidavit contains information regarding property, debts, criminal antecedents (if any) etc. of the candidate. The said affidavit also contains information, where the said candidate normally resides and his name is registered as a voter at which place. It is not necessary that, the concerned candidate should be a resident of the same constituency from which he intends to contest the election. It is also not necessary that he should be a registered voter of that constituency. In the present case, even if the respondent No.1 was not the normal resident of the village / town, the area of which falls under the Dwarka Assembly Constituency, then also, he could have filled in the nomination form to contest the election from 82-Dwarka Assembly Constituency. Same way, had he not been a registered voter of the 82-Dwarka Assembly Constituency, then also, he could have filled in the nomination form to contest the election from 82-Dwarka Assembly Constituency. Similarly, though the respondent No.1 is a normal resident of Dwarka and is also a registered voter of the Dwarka Assembly Constituency, he could have filled in the nomination, from some other constituency as well. In that case also, the information in the said affidavit would have been the same, which he has given now. For these reasons, the argument made on behalf of the respondent No.1 that the affidavit Page 25 of 51 C/EP/20/2018 CAV JUDGMENT annexed with the nomination form does contain the details of his residential address, which is of Dwarka and the details regarding his registration as a voter, which is also of Dwarka, would not help the respondent No.1. The judgments cited by learned advocate for the respondent No.1 in this regard, viz., in the cases of Kisan Shakar Kathore(supra), Resurgence India (supra), Union of India Vs. Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra) would not take the case of the respondent No.1 any further.
15. There is an additional factor to answer this issue in affirmative. Such an issue had earlier cropped up in other case also, which had reached upto the Supreme Court of India. Reference in this regard needs to be made to the decision of the Supreme Court of India in the case of Prahladdas Khandelwal Vs. Narendra Kumar Salve reported in AIR 1973 SC
178. While dealing with almost identical facts, which has cropped up in this petition, the Supreme Court of India in the case of Prahladdas Khandelwal (Supra) observed and held as under.
"9. The next question is whether the omission to mention the name of the 26th Betul Parliamentary Constituency in Ext.
P-2 was a defect of a substantial
character by reason of which the
nomination paper must be rejected by the Returning Officer. Section 33 deals with the presentation of the nomination paper and requirements for a valid nomination.
It has to be presented after being
completed in the prescribed form and
Page 26 of 51
C/EP/20/2018 CAV JUDGMENT
signed by the candidate and by an elector of the Constituency as proposer. Sub-
section 4 of that section is to the following effect : "On the presentation of a nomination paper, the returning Officer shall satisfy that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls". Section 36 deals with scrutiny of nominations. Sub-s. (2) thereof provides
that the Returning Officer shall examine the nomination papers and decide all objections which may be made to any nomination and may, either on such objection or on his own motion after a summary inquiry, reject the nomination paper on the ground given in clauses (a),
(b) and (c). Clause (b) is "that there has been a failure to comply with any of the provisions of S. 33 or section 34." Sub-
section (4) furnishes the key to the point under consideration. According to it the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial Page 27 of 51 C/EP/20/2018 CAV JUDGMENT character. The proviso to rule 4 may also be noticed. It says that a failure to complete or defect in completing the declaration as to symbols in a nomination paper in Form 2A or Form 2B shall not be deemed to be a defect of a substantial character within the meaning of sub-s. (4) of S. 36. It is thus clear that in the statute and the rules those defects have been indicated for which the nomination paper cannot be rejected and the Returning Officer has to permit the correction of those defects; (vide proviso to S. 33 (4) of the Act and Rule 4 of the Rules). But S. 36 (4) clearly contemplates that where the defect is of a substantial character the Returning Officer is not enjoined to have it rectified and he has to reject that nomination paper. The matter is not res integra and is settled by a series of decisions of this court. We need refer only to two of such decisions viz. Rattan Anmol Singh v. Atma Ram, (1955) 1 SCR 481 = (AIR 1954 SC 510) and Ram Dayal v.
Brijraj Singh, (1970) 1 SCR 530 = (AIR
1970 SC 110). In the first case it was
laid down in categorical terms that
Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been any failure to comply with any of the provisions of Section 33.
Page 28 of 51 C/EP/20/2018 CAV JUDGMENTThe only jurisdiction the Returning Officer has at the scrutiny stage is to see whether the nominations are in order and to hear and decide objections. He cannot at that stage remedy essential defects or permit them to be remedied. It is not open to him to reject a nomination paper on the ground of a technical defect which is not of a substantial character.
But he cannot remedy that defect. He must leave it as it is. If it is technical and non-substantial it will not matter. In the second case the following observations at page 533 are noteworthy :
"The requirement under Sec. 33 (1) of the Act that the nomination shall be signed by the candidate and by the proposer is mandatory. Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules.
Attestation is not a mere technical or unsubstantial requirement within the meaning of Section 36 (4) of the Act and cannot be dispensed with. The attestation and the satisfaction must exist at the stage of Page 29 of 51 C/EP/20/2018 CAV JUDGMENT presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have been."
In this case the earlier decision in Rattan Anmol Singh's case was followed.
10. There can be no manner of doubt that in the present case there has been a failure to comply with the provisions of Section 33 inasmuch as the name of the Constituency was not stated in the nomination paper which, therefore, could not be treated as having been completed in the prescribed form as required by S. 33 (1) of the Representation of the People Act. This defect was essentially of a substantial character and did not fall within those provisions where the Returning officer is enjoined either to get the defect rectified or ignore it. It was not the duty of the Returning Officer at the stage of the scrutiny to draw the attention of the appellant to the aforesaid substantial defect for the purpose of getting the same cured. The Returning officer was fully justified in rejecting the nomination paper."
(emphasis supplied) Page 30 of 51 C/EP/20/2018 CAV JUDGMENT
16. The findings of this Court and the answer qua Issue No.1, as recorded above, are also fortified by the above quoted ratio in the decision of the Supreme Court of India in the case of Prahladdas Khandelwal (supra).
17. In view of above, this Court arrives at the conclusion that, it is proved that non-mentioning of 'the number and name of the constituency', in the first line of Part-I of the nomination form of the respondent No.1, is a 'defect of substantial character' as contemplated under the provisions of the Representation of the People Act, 1951. The Issue No.1 therefore needs to be and is answered in affirmative.
18. The findings of the Court qua Issue No.2 18.1 The said issue reads as under.
"2. Whether the petitioner proves that the nomination of the respondent No.1 was required to be rejected by the Returning Officer of '82-Dwarka Constituency' ?"
18.2 Having held (qua issue No.1) that the nomination of the respondent No.1 was defective and further that the said defect was of substantial character, as the necessary consequence thereof, it would be required to answer the above quoted Issue No.2 in affirmative. To elaborate this, the following additional reason is recorded.
18.3 Section 36(4) read with Section 33(1) of the Act would be the relevant consideration for this issue. The relevant part of the said Sections read as under.
Page 31 of 51 C/EP/20/2018 CAV JUDGMENT"36. Scrutiny of nomination - (1) On the date fixed for the........
(4) The returning officer shall not
reject any nomination paper on the
ground of any [****] defect which is not of a substantial character."
"Section 33 - Presentation of nomination paper and requirements for a valid nomination -
(1) On or before the date appointed
under clause (a) of Section 30 each
candidate shall, either in person or by his proposer, between the hours of eleven o' clock in the forenoon and three o'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer:
Provided that .......
18.4 Since the nomination of the respondent No.1 was not completed in the prescribed form (as required under Section 33(1) of the Act), and since it is held to be defective, and further that the said defect was of substantial character, the nomination of the respondent No.1 was required to be rejected by the Returning Officer of 82-Dwarka Assembly Constituency, Page 32 of 51 C/EP/20/2018 CAV JUDGMENT in view of the provisions of Section 36(4) of the Act. Issue No.2 therefore needs to be and is answered in affirmative.
18.5 There is an additional factor to answer this issue in affirmative. The Supreme Court of India in the case of Brijendralal Gupta Vs. Jwalaprasad reported in AIR 1960 SC 1049, held that if the nomination is defective and if the said defect is of substantial character, rejection of the nomination is the necessary consequence.
18.6 For all the above reasons, Issue No.2 is answered in affirmative.
19. The findings of the Court qua Issue No.3
19.1 The said issue reads as under.
"3. Whether the petitioner proves that the action of the Returning Officer of '82-
Dwarka Constituency' of rejecting the
objections filed by the petitioner,
against the nomination of the respondent No.1 was illegal ?"
19.2 This Issue pertains to the legality of the decision of the Returning Officer, rejecting the objections filed by the petitioner (Exh.51) against the nomination of the respondent No.1 (Exh.49) and the sustainability of the reasons and final order passed by the Returning Officer dated 22.11.2017 (Exh.53). In this regard, the findings of this Court are as under.
20. This Court has considered the order passed by the Returning Officer (Exh.53). This Court finds that the decision of Page 33 of 51 C/EP/20/2018 CAV JUDGMENT the Returning Officer, rejecting the objections filed by the petitioner, against the nomination of the respondent No.1 and thereby accepting the nomination of the respondent No.1 for 82-Dwarka Assembly Constituency, is illegal, arbitrary and perverse on more than one counts. This is so, for the following reasons.
21. As noted above, there was complete exclusion of the number and name of the Constituency in the first line of Part-I of the nomination of the respondent No.1. As held above, the said exclusion was 'a defect of substantial character' as contemplated under the provisions of the Act. The nomination of the respondent No.1 was therefore required to be rejected by the Returning Officer, at the time of scrutiny, even if no objection was raised against the said nomination of the respondent No.1 by anyone. The Returning Officer did not do so. This itself is an illegality. The answer to Issue No.3, therefore needs to be given in affirmative. There are additional reasons to do so, which are as under.
22. While recording findings qua Issue No.3, over and above the deposition of the Returning Officer Exh.48, this Court has also considered the following documentary evidences.
(i) The nomination form submitted by the respondent No.1, with annexures thereto, which was accepted by the Returning Officer of the '82-Dwarka Constituency'. (Exh.49)
(ii) The nomination form submitted by the petitioner for the '82-Dwarka Constituency' along with annexures thereto. (Exh.50) Page 34 of 51 C/EP/20/2018 CAV JUDGMENT
(iii) The objection raised by the petitioner against the nomination of the respondent No.1 dated 22.11.2017. (Exh.51)
(iv) The reply filed by the respondent No.1 dated 22.11.2017 against the objection raised by the petitioner against the nomination of the respondent No.1. (Exh.52)
(v) The order recorded by returning officer rejecting the objection raised by the petitioner against the nomination of the respondent No.1 dated 22.11.2017. (Exh.53)
23. On conjoint consideration of the above-noted oral as well as documentary evidences, an unmistakable picture emerges that the impugned decision of the Returning Officer, accepting the nomination of the respondent No.1, inspite of the objection against it, is not only illegal but suffers from the vice of perversity as well. Perversity also, on more than one counts. It is a matter of record that the Returning Officer refused to take into consideration the relevant factors, he took into consideration irrelevant factors, and even on the basis of the material which was on record before him at the relevant time, he reached at such a conclusion, where no man with ordinary prudence would reach. In this regard, the following additional aspects are noted.
24.1 A copy of the judgment of the Supreme Court of India in the case of Prahladdas Khandelwal Vs. Narendra Kumar Salve reported in 1973 AIR SC 178 was annexed by the petitioner Page 35 of 51 C/EP/20/2018 CAV JUDGMENT with his written objections Exh.51. Thus the complete text of the said judgment was on record before the Returning Officer. The said judgment has binding force on all, including this Court. The plain reading of the said judgment makes it clear that, not only as the proposition of law, but even on facts, it is applicable with full force in the present case. The Returning Officer ignored the said judgment of the Supreme Court. In the order passed by the Returning Officer Exh.53, there is not even a mention of the said judgment, though it was specifically put to his notice with copy thereof. Thus, the Returning Officer refused to take into consideration the relevant material. The said decision of the Returning Officer, of rejecting the objection of the petitioner against the nomination of the respondent No.1, is thus perverse.
24.2 Further, the Returning Officer took into consideration, those factors which were not relevant. The respondent No.1 had given his reply Exh.52, against the objections raised by the petitioner vide Exh.51. The respondent No.1 had, in his reply Exh.52, taken certain contentions, including that, the said decision of the Supreme Court of India in the case Prahladdas Khandelwal (supra) would not be applicable in the present case. If the Returning Officer was of that view, he could have said so in his order. Had he said so, then also the said decision of the Returning Officer would still remain to be an illegal decision, but it could not have been condemned as perverse. He does not even refer to it, in the order. On the contrary, while referring to the said reply of the respondent No.1 Exh.52, the Returning Officer assumed such case of the respondent No.1, which was not even put forward by the respondent No.1. For rejecting the objections by the petitioner against the Page 36 of 51 C/EP/20/2018 CAV JUDGMENT nomination of the respondent No.1, the Returning Officer recorded his satisfaction to the effect that, the respondent No.1 has inadvertently missed to write the name and number of the Constituency, he (the respondent No.1) had obtained the form from him (the Returning Officer) only, and the respondent No.1 is otherwise not disqualified to contest the election. These aspects were irrelevant to decide whether the objection by the petitioner against the nomination of the respondent No.1 was well founded or not. It was neither the objection of the petitioner that the respondent No.1 was disqualified to contest the election, nor was it the case of the respondent No.1 that, inadvertently he had missed to mention the name and number of the constituency in his nomination. Thus, the Returning Officer took into consideration irrelevant factors. The said decision of the Returning Officer, of rejecting the objection of the petitioner against the nomination of the respondent No.1, is thus perverse.
24.3 There is one more dimension of the matter, on this count (perversity) itself. Though the order Exh.53 does not refer to the decision of the Supreme Court of India in the case of Prahladdas Khandelwal (supra), the Returning Officer had, while giving his evidence before this Court vide Exh.48, deposed to the effect that, he had taken into consideration the said decision of the Supreme Court of India, while recording the order Exh.53. If this say of the Returning Officer is accepted on its face value, it would only add to the vulnerability of the said decision. This is so because the Returning Officer reached to that conclusion, where no man with ordinary prudence would reach, after considering the said judgment of the Supreme Court of India. The deposition of the Page 37 of 51 C/EP/20/2018 CAV JUDGMENT Returning Officer to this effect, would render his order Exh.53 more vulnerable and the said decision would be further tainted from the vice of perversity. The decision of the Returning Officer, of rejecting the objection of the petitioner against the nomination of the respondent No.1, is thus perverse.
24.4 For the above reasons, it is proved that, the decision of the Returning Officer of rejecting the objection of the petitioner against the nomination of the respondent No.1, was not only illegal and arbitrary, but perverse as well.
25. Issue No.3 therefore needs to be and is answered in affirmative.
26.1 There is one more dimension of this issue. A contention is raised on behalf the respondent No.1 that, the action of the Returning Officer of rejecting the objection by the petitioner against the nomination of the respondent No.1 can not be faulted with, keeping in view the instructions of the Election Commission of India (Exh.67), more particularly para:6.9.1 and 6.9.2 which are quoted in para:4.4 above. This contention would not take the case of the respondent No.1 any further, for the reasons which are already noted above. There are additional reasons which would come in the way of the respondent No.1.
26.2 Firstly, the very same document (the 'Handbook for the Returning Officers - 2014' Exh 67) also contains an instruction (para:6.2.1), indicating the position of the Returning Officer, while he undertakes the scrutiny of the nomination forms. The said instruction reads as under.
Page 38 of 51 C/EP/20/2018 CAV JUDGMENT"6.2.1 Scrutiny of nomination papers is an important quasi-judicial function. You have therefore to discharge this duty with complete judicial detachment and in accordance with the highest judicial standards. You must not allow any personal or political predilections to interfere with the procedure that you follow or the decision you take in any case. Law expects you to be fair, impartial, and treat all candidates equally. You must also conduct yourself in such a manner that it would appear to all concerned that you are following this high code of conduct. Even if a candidate or his agent is difficult or cantankerous, you must be courteous and patient, but firm. It is expected of you to be prompt and orderly. But at the same time you have to be firm so that your task may be accomplished in a prompt, orderly and businesslike manner. You should not take any direction from any superior authority including the CEO or the Commission's Observer in deciding the validity or otherwise of a nomination paper. You should only be guided by the provisions of the law and the instructions given by the Commission from time to time."
26.3 The above instruction defines that, while scrutinizing the Page 39 of 51 C/EP/20/2018 CAV JUDGMENT nominations, the Returning Officer discharges the duty as a quasi-judicial authority. It is on much higher pedestal than discharging duties, as an administrative authority. Even in discharge of administrative duty, no officer can be permitted to ignore the decision of the Supreme Court of India. When it comes to discharge of quasi-judicial function, such refusal needs to be viewed seriously. Ignoring the decision of the Supreme Court of India, in the case of Prahladdas Khandelwal (supra), in the facts of this case, is not as simple as - it escaped the notice of the Returning Officer, in due discharge of his quasi-judicial function. Further, there is pleading to the effect, and evidence on record, at least to look into the direction that, the action of the Returning Officer to shut his eyes to the binding decision of the Supreme Court was less an escape from his notice, more the convenience to reach to the goal, which is alleged to have been pre-decided to help the respondent No.1. In this regard, the following further facts need to be noted.
27.1 The petitioner had entered the witness box as PW-2. During the course of his deposition (Exh.58), he stood by the averments made by him in the petition. Para:19 of the petition reads as under.
"19. The petitioner submits that the Returning Officer has wrongly accepted the nomination of the respondent No.1. As held by the Hon'ble Supreme Court in case of Prahladdas (supra) the failure to disclose the name of the Constituency is a substantial error and, therefore, the Page 40 of 51 C/EP/20/2018 CAV JUDGMENT nomination was liable to be rejected. Despite the said binding precedent of the law, the Returning Officer has failed to follow said law laid down by the Hon'ble Supreme Court. The Returning Officer accepted the nomination of respondent No.1 on the grounds which were not even pleaded by the respondent No.1. The respondent No.1 pleaded that, though he has not mentioned the name of the Constituency from which the respondent No.1 proposes to contest the election, other information submitted by the respondent No.1 that respondent and the proposer both are the voters in 82 Dwarka State Legislative Assembly Constituency, the list of voters and the affidavit accompanied nomination form also indicated the name of the Constituency and, therefore, there was sufficient indication to suggest that the respondent No.1 proposed to contest the election of 82 Dwarka Constituency. The Hon'ble Supreme Court did not accept said defence which was taken in same bundle of facts which was proposed by the respondent No.1 in his absence. Therefore, the Returning Officer took a short cut and found out a new defence as if the Returning Officer himself was assigned the duty to defend the respondent No.2 and holding brief on behalf of respondent No.1. The Returning Officer Page 41 of 51 C/EP/20/2018 CAV JUDGMENT recorded his satisfaction that the error committed by the respondent no.1 was inadvertent. The Returning Officer also recorded that the respondent No.1 is not otherwise disqualified as suggested in Para-1 of the form and, therefore, the inadvertent mistake committed by the respondent No.1 does not warrant rejection and, therefore, the objections raised by the petitioner were rejected. With profound respect, it is submitted that it is not duty of the Returning Officer to go for fishing inquiry and find out by his own innovation the reasons for acceptance of nomination. The error pointed out by the present petitioner was substantial or not ?
was the sole issue required to be
determined by the Returning Officer. The
Returning Officer having realized in view of the judgment rendered by the Hon'ble Supreme Court in case of Prahladdas (supra) found out a new method to by-pass binding judgment and recorded the findings which were nobody's case. Therefore, the order recorded by the Returning Officer is not sustainable."
27.2 The conjoint consideration of the above and what is noted in the earlier part of this judgment, may prima facie attract Section 123 (7) of the Act, however, though pleaded, it was not pressed on behalf of the petitioner, at the time of Page 42 of 51 C/EP/20/2018 CAV JUDGMENT framing of issues, that an issue regarding corrupt practice having been committed by the respondent No.1, with the assistance of the Returning Officer, be framed. Such an issue was therefore not framed. Though there is material on record to deliberate qua corrupt practice, it would not be open to do so, in absence of any issue in that regard. Further, though not impermissible, it would be unfair to the respondent No.1 to frame such an issue, at the later stage of the trial, that too when it was not so pressed on behalf of the petitioner. It would also not be open, since the concerned Returning Officer, though examined as a witness, is not party to the proceedings, which is the mandate of Section 99 of the Act. For all these reasons, this Court has not gone into the details in that regard. However, independent of this, as already noted above, there is sufficient material on record to hold that the action of the Returning Officer of '82-Dwarka Constituency' of rejecting the objection filed by the petitioner, against the nomination of the respondent No.1 was illegal.
28. For all these reasons, this Court finds that, it is proved that the action of the Returning Officer of '82-Dwarka Constituency' of rejecting the objections filed by the petitioner, against the nomination of the respondent No.1 was illegal and the Issue No.3 therefore needs to be and is answered in affirmative.
29. The findings of the Court qua Issue No.4 29.1 The Issue No.4 reads as under.
"4. Whether the petitioner proves that the Page 43 of 51 C/EP/20/2018 CAV JUDGMENT result of the election, in so far as it concerns the returned candidate (the respondent No.1) from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections, held on 09.12.2017, has been materially affected by improper acceptance of the nomination of the respondent No. 1 ?"
29.2 So far this issue is concerned, at the outset it needs to be noted that, even after holding that the nomination of the respondent No.1 was illegally accepted and it ought to have been rejected by the Returning Officer, that itself is not sufficient ground to declare the election of the respondent No.1, from 82-Dwarka Assembly Constituency, to be void under Section 100(1)(d)(i) of the Representation of the People Act, 1951. For doing so, the additional requirement under Section 100(1)(d) of the Act is that, it also needs to be proved, how the improper acceptance of the nomination of the respondent No.1 has materially affected the final result.
29.3 To appreciate, under what circumstances the above stated additional requirement (vide Section 100(1)(d) of the Act) can be said to have been fulfilled, the issue can be looked at, like this. In case of an improper acceptance of nomination of a particular candidate, if the said candidate ultimately looses in the election, it may be required to examine that - had the said candidate not been in the fray, what would have been the final result of the said election. Take a case, where the returned candidate wins with the margin of more than 5,000 votes, over the next candidate. In the said election, the Page 44 of 51 C/EP/20/2018 CAV JUDGMENT candidate - whose nomination was illegally accepted by the Returning Officer gets 400 votes. In these circumstances, it can not be said that, had the said improper nomination not been accepted, the returned candidate would have been someone else. In such cases, even if the Court reaches to the conclusion that, a nomination of a particular candidate was illegally accepted, then also that itself may not be a ground to set aside the election under Section 100(1)(d)(i) of the Act, since the additional requirement can not be said to have been satisfied that, the said improper acceptance of nomination has materially affected the result of the election, so far it concerns the returned candidate. In other words, it needs to be additionally proved that, had that nomination not been accepted, the returned candidate would have been someone else. As the consequence of this, equally true would be the proposition that, if the nomination in question is of the returned candidate himself, it need not be further proved that, had his nomination not been accepted, the returned candidate would have been someone else. In the present case, it is the nomination of the respondent No.1, who is the returned candidate, which is held to be substantially defective and the acceptance of which is held to be illegal. Under these circumstances, there can not be any escape from the conclusion that, had the nomination of the respondent No.1 not been accepted, the returned candidate could be anyone, but certainly not the respondent No.1.
29.4 For the above reasons, Issue No.4 needs to be and is answered in affirmative.
29.5 The findings of this Court, qua Issue No.4, as recorded Page 45 of 51 C/EP/20/2018 CAV JUDGMENT above, is also fortified by the decisions of the Supreme Court of India in the cases of Madiraju Venkata Raman Raju (supra) and Rajendrakumar Meshram (supra).
29.6 In view of above, the Issue No.4 is answered in affirmative.
30. The findings of the Court qua Issue No.5 30.1 Issue No.5 reads as under.
"5. Whether the petitioner proves that the election of the returned candidate (the respondent No. 1) from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections, held on 09.12.2017, needs to be declared as void under Section 100(1)(d)(i) of the Representation of the People Act, 1951 ?"
30.2 So far this issue is concerned, as the consequence of the reasons, findings and the final answers to Issue Nos.1 to 4 as noted above, this issue (Issue No.5) needs to be answered in affirmative. It is noted that, since it is already held that :-
(i)It is proved that non-mentioning of 'the name of the constituency', in the first line of part - 1 of the nomination form, submitted by the proposer of the respondent No.1, is a 'defect of substantial character' as contemplated under the provisions of the Representation of the People Act, 1951, (vide Issue No.1), and Page 46 of 51 C/EP/20/2018 CAV JUDGMENT
(ii) It is also proved that the nomination of the respondent No.1 was required to be rejected by the Returning Officer of '82-
Dwarka Constituency' (vide Issue No.2), and
(iii) It is also proved that the action of the Returning Officer of '82-Dwarka Constituency' of rejecting the objections filed by the petitioner, against the nomination of the respondent No.1 was illegal, (vide Issue No.3), and
(iv) It is also proved that the result of the election, in so far as it concerns the returned candidate (the respondent No.1) from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections, held on 09.12.2017, has been materially affected by improper acceptance of the nomination of the respondent No. 1, (vide Issue No.4), as the consequence thereof, the election of the returned candidate (the respondent No. 1) from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections, held on 09.12.2017, needs to be declared as void under Section 100(1)
(d)(i) of the Representation of the People Act, 1951.
30.3 The Issue No.5, therefore needs to be and is answered in affirmative.
Page 47 of 51 C/EP/20/2018 CAV JUDGMENT31. The findings of the Court qua Issue No.6 31.1 The said issue reads as under.
"6. Whether the petitioner proves that he is entitled to be declared as duly elected candidate from '82-Dwarka Constituency' for the Gujarat State Legislative Assembly Elections held on 09.12.2017 ?"
31.2 So far the issue No.6 is concerned, though it is held that nomination of respondent No.1 was illegally accepted and further that the election of the respondent No.1 needs to be declared as void, that itself is no reason / ground that the issue No.6 also needs to be answered in affirmative. Had there been only two candidates in the fray, on the last date of submission of nomination, i.e. the petitioner and the respondent No.1, the situation could have been different. If the petitioner and the respondent No.1 were only two candidates, and in the event the objection of the petitioner against the nomination of the respondent No.1 was accepted by the Returning Officer, as the consequence thereof, the nomination of the respondent No.1 would have been rejected as being defective. As the further consequence thereof the petitioner would have been the only candidate left in the fray, leading to the declaration of result that the petitioner is elected uncontested. The same is not the fact in this case. This issue therefore can not be answered in affirmative.
32. There is one more dimension of the matter. It is a matter of record that, the petitioner had secured 67692 Votes. The Page 48 of 51 C/EP/20/2018 CAV JUDGMENT respondent No.1 had secured 73431 Votes. These figures are mentioned in the final result sheet Form-20. The said document is on record at Exh.54. The above figures would show that the wish of the people is either with the respondent No.1 or with the party, which setup him a candidate. Under either of the circumstances, it would be against the wish of the people, to declare the petitioner as the returned candidate, in the election in question.
33. Learned advocate for the petitioner has relied on the decisions of the Supreme Court of India in the cases Mairembam Prithiviraj (supra) and Mohinder Singh Gill (supra) to contend that, since the nomination of respondent No.1 was nullity in the eyes of law, votes secured by him should be treated nullity and since the petitioner had secured highest votes, from amongst the remaining candidates in the fray, he should have been declared as the returned candidate. This contention of the petitioner can not be accepted for the fact and the reasons noted above. The decisions cited by learned advocate for the petitioner would not take the case of the petitioner any further, in the facts noted above.
34. For the above reasons, the Issue No.6 needs to be and is answered in negative.
35. The findings of the Court qua Issue No.7 35.1 The said issue reads as under.
"7. What final order to be passed?"
35.2 In view of the findings qua Issue Nos. 1 to 6 as noted above, Issue No.7 is answered in terms of the following order.
Page 49 of 51 C/EP/20/2018 CAV JUDGMENTFINAL ORDER 36.1 This election petition is partly allowed.
36.2 It is held and declared that, the nomination of the respondent No.1 was defective and the said defect was a 'defect of substantial character' as contemplated under the provisions of the Representation of the People Act, 1951, and the said nomination of the respondent No.1 was required to be rejected by the Returning Officer of '82-Dwarka Constituency' and that, the action of the Returning Officer of '82-Dwarka Constituency' of rejecting the objections filed by the petitioner, against the nomination of the respondent No.1 and accepting the said nomination of the respondent No.1 was illegal.
36.3 It is also held and declared that the result of the election, in so far as it concerns the returned candidate (the respondent No.1) from '82-Dwarka Constituency' for the Gujarat Legislative Assembly Elections, held on 09.12.2017, has been materially affected by improper acceptance of the nomination of the respondent No.1.
36.4 In view of above, the election of the returned candidate (the respondent No. 1) from '82-Dwarka Constituency' for the Gujarat Legislative Assembly Election, held on 09.12.2017, is declared as void under Section 100(1)(d)(i) of the Representation of the People Act, 1951.
36.5 This petition is allowed to the above extent.
37. The prayer of the petitioner that he - the petitioner, be Page 50 of 51 C/EP/20/2018 CAV JUDGMENT declared as duly elected candidate from '82-Dwarka Constituency' for the Gujarat Legislative Assembly Election held on 09.12.2017, in place of the respondent No.1, is rejected. This petition is dismissed to this extent.
38. Registry shall communicate this order to:-
(i) the Election Commission of India, and
(ii) the Speaker of the Gujarat Legislative Assembly, as required under Section 103 of the Representation of the People Act, 1951. The same shall be done by the Registry within the time limit, as prescribed under Rule 305 of the Gujarat High Court Rules, 1993.
sd/-
(PARESH UPADHYAY, J)
39. After the pronouncement of this judgment and order, learned advocate for the respondent No.1 has prayed that this judgment and order be stayed for some time. This request is rejected, considering the fact that, the very acceptance of the nomination of the respondent No.1 was illegal and against the binding judgment of the Supreme Court of India (as noted above). The said illegality can not be permitted to be perpetuated any further.
sd/-
(PARESH UPADHYAY, J) MOBHATI/PS/01 Page 51 of 51