Kamleshbhai Ranchhodbhai Joshi vs Election Commission Of India
2021 Latest Caselaw 1436 Guj

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/ELECTION PETITION NO. 4 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE A. P. THAKER Sd/-

============= ==== == == == == = == == == == == == == == == == == == === ==

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2     To be referred to the Reporter or not ?                               No

3     Whether their Lordships wish to see the fair copy                     No
      of the judgment ?

4     Whether this case involves a substantial question                     No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

============= ==== == == == == = == == == == == == == == == == == == === == KAMLESHBHAI RANCHHODBHAI JOSHI Versus ELECTION COMMISSION OF INDIA & 3 other(s) ============= ==== == == == == = == == == == == == == == == == == == === == Appearance:

MS SONAL D VYAS(999) for the Petitioner(s) No. 1 DELETED(20) for the Respondent(s) No. 1,2,3

============= ==== == == == == = == == == == == == == == == == == == === ==

CORAM: HONOURABLE DR. JUSTICE A. P. THAKER

Date : 01/02 / 2 0 2 1

CAV JUDGMENT

1. Present Election Petition has been filed under Article 329

(b) of the Constitution of India and under the provisions of The Representation of the People Act, 1950 (for short, "the Act"), for the following prayers:-

"10. The petitioner therefore prays that:

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

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

C. Such other and further relief/s which the Honourable Court may deem fit, just and proper be granted in the facts and circumstances of the present case and in the interest of justice;"

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

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

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

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

nomination papers on the ground of any defect which is not of substantial character."

6. He has also contended that action of the Returning Officer is arbitrary and illegal, which is violative of Sections 33, 34 and 36 of the Act. He has also contended that, due to breach of these provisions, entire election process and the consequent election of respondent no.4 as a Member of the Legislative Assembly is illegal and deserves to be set aside. On all these grounds, he has prayed to allow present petition.

7. Earlier, the petitioner has joined Election Commission of India as respondent no.1, Collector-Gandhinagar as respondent no.2, Election Officer, Gandhinagar (North) as respondent no.3 and the Elected MLA Mr.C.J.Chavda as respondent no.4. During the pendency of this petition, respondent nos.1, 2 and 3 came to be deleted in view of the settled law. Private respondent Mr.C.J.Chavda, Elected MLA has chosen not to contest the petition.

8. This Court has framed following issues vide order dated 2.8.2019.

"(i) Whether the petitioner proves that the respondent authority has committed an error in rejecting the Form of the petitioner?

(ii) Whether the petitioner proves that the defect, if any, in his Form was not of a substantial character?

(iii) Whether the petitioner proves that the result of the election qua the 36 - Gandhinagar (North) Legislative Assembly Constituency declaring respondent No.4 as elected from the Gujarat is liable to be set aside?

(iv) Whether the petitioner is entitled to relief as sought for? "

9. For the reasons given below, the findings with regard to the issues framed are as under:-

(i)        In the negative.
(ii)       In the negative.
(iii)      In the negative.
(iv)       As per final order.


                                 REASONS:-

10. As the entire factual and legal aspects regarding all these issues are interwoven, they are discussed together.

11. The petitioner herein has filed affidavit in lieu of chief examination and has produced documentary evidence as follows:-

(i) Affidavit in lieu of the examination in chief dated 18.10.2019-Exh.12.

(ii) Notification dated 14.11.2017 by ECI (GAD) in the name of Honourable Governor of Gujarat-Exh.13.

(iii) Nomination Form of the Petitioner-Exh.14.

(iv) Letter of returning officer dated 28.11.2017-Exh.15.

(v) Second Additional Affidavit in support of Affidavit in lieu of Chief Examination dated 14.8.2020-Exh.16.

(vi) Notification dated 22.12.2017 along with result of election-

Exh.17.

(vii) Written arguments submitted by learned advocate for the petitioner dated 13.8.2020-Exh.18.

12. The petitioner has averred the same facts in his affidavit in lieu of chief examination, which are narrated in the petition

memo, which has not been controverted by the private respondent. Thus, the fact remains that nomination paper filed by the petitioner having 10 proposers, out of which one is not belonging to same constituency is not supported by the respondent by appearing before this Court.

13. Heard Mr.Sonal D.Vyas, learned advocate for the petitioner and perused the material placed on record.

14. In addition to the arguments, which are on the same line as mentioned in the petition memo, Ms.Vyas has also filed written arguments. In substance, the submissions of learned advocate for the petitioner are as under:-

15. Learned advocate Ms.Vyas has submitted that the Returning Officer has rejected the nomination form of the petitioner on the ground that one of the supporter is not belonging to Gandhinagar (North). She has also submitted that no opportunity of correcting the mistake has been granted by the Returning Officer and as per the provisions contained in Section 36 (5) of the Act, there is mandatory provision to give at least two days time to the concerned candidate by the Returning Officer for correction of the mistake. According to her contention, such opportunity has not been granted by the Returning Officer and, therefore, rejection of nomination form of the petitioner is bad in law. She has also submitted that in view of decisions reported in 2012 (1) SCC 762 as the mandatory provision has been breached by the Returning Officer, present petition be allowed and ultimate result declared by the authority be set aside.

16. It is submitted that the petitioner asked for an opportunity to correct the defects found in the nomination paper but the Returning Officer did not give any opportunity and proceeded to pass the order of rejection of the nomination form orally on the very same day. It is also submitted that upon asking for written order, next date the order of rejection was provided in writing on 20.11.2017. She has also referred to earlier petition filed by the petitioner challenging the decision of the Returning Officer being Special Civil Application No.21776 of 2017, which came to be withdrawn as per the order of this Court wherein it has been held that the matter of incorrect acceptance or rejection of nomination paper would have been raised in Election Petition to be decided by the specially constituted Election Tribunal under Article 329 (B) of the Indian Constitution.

17. While relying upon the observation made by the Honourable Supreme Court in the case of Ramesh Rao v. Ravindranath Nath in 2012 (1) SCC 762, she has submitted that the Returning Officer has failed to follow the procedure envisaged in Sub-section (5) of Section 36 of the Act. She has also reproduced the observations of the Honourable Supreme Court in the case of Rakesh Kumar v. Sunil Kumar reported in 1997 (2) SCC 989. On this count, she has prayed to allow the petition in its entirity.

18. The decision of the Honourable Supreme Court in the case of Rakesh Kumar v. Sunil Kumar (supra) has been referred to by the Honourable Supreme Court in the case of Ramesh Rout v. Ravindranath Rao reported in 2012 (1) SCC 762. Observation in this regard made in the said decision is as under:-

"65. In Rakesh Kumar v. Sunil Kumar8, this Court held in para 21 (Pg. 500) as under:

"21. .........The use of the expression "not later than the next day but one following the date fixed for scrutiny" under the proviso to Sub-section (5) of HYPERLINK "https://indiankanoon.org/doc/168639435/"Section 36 of the Act unistakably shows that the Returning Officer has been vested with the discretion to fix time to enable a candidate to rebut an objection to the validity of his nomination paper and such a discretion has to be fairly and judicially exercised. The refusal to grant an opportunity to the respondent and rejecting his nomination paper was clearly an arbitrary exercise of the discretion vested in the Returning Officer. The Returning Officer has also not given any cogent reasons for his refusal to grant an opportunity as prayed for by the respondent. The Returning Officer appears to have been labouring under some misconception when he recorded that the political party "cannot be given further time to change such authorisation after scrutiny". Under the proviso to Section 36(5) of the Act, the scrutiny itself would have been postponed to the adjourned time and, therefore, it was not a case of meeting the objection after scrutiny of the nomination papers. The failure to exercise his jurisdiction to postpone the decision as to the validity of the nomination paper of the respondent, even after the respondent had sought time to meet the objection, indeed rendered the rejection of the nomination paper of the respondent as both improper and illegal. The Returning Officer is not expected to reject a nomination paper, without giving an opportunity to the candidate or his representative present at the time of scrutiny to meet an objection, capable of being met, particularly where such an opportunity is sought for by the candidate or his 8 (1999) 2 SCC 489 representative and no one present on behalf of the other candidates had opposed the claim made by the respondent. Having raised the objection suo motu, the request of the respondent who was present and sought time in writing to seek clarification from the BJP as to who was its official candidate, the Returning Officer in all fairness was obliged to grant time to the respondent as prayed for by him and postponed the scrutiny to the next day but he ought not to have rejected his nomination paper in hot haste. The Returning Officer, obviously, failed to exercise his jurisdiction under Section 36(5) of the Act properly and thereby fell in a grave error in rejecting the nomination paper of the respondent.........."

19. The petitioner is heavily relying upon the provisions of The Representation of the People Act, 1951, which reads as under:-

"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: 2[Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency: Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday: Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference to ten per cent. of the electors of the constituency or ten such electors, whichever is less, as proposers.] 3[(1A) Notwithstanding anything contained in sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State only constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed: Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and--

(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;

(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;

(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer: Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.] (2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.

(3) Where the candidate is a person who, having held any office referred to in 4[section 9] has been dismissed and a period of five years

has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.

(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: 5[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 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.] (5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny. 6[(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper: Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.]] 7[(7) Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election,--

(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;

(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;

(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;

(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;

(e) in the case of bye-elections to the House of the People from two or

more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;

(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;

(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;

(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies. Explanation.--For the purposes of this sub-section, two or more bye- elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under sections 147, 149, 150 or, as the case may be, 151 on the same date.]

19.1 Section 36 of the Act provides for scrutiny of nomination, which reads as under:-

36. Scrutiny of nomination.--

(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer 1[***] of each candidate, and one other person duly authorised in writing by each candidate but no other person, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.

(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, 2[reject] any nomination on any of the following grounds:-- 3[(a) 4[that on the date fixed for the scrutiny of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:-- Articles 84, 102, 173 and 191, 5[***]. 6[Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963)] 7[***]; or

(b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.] (3) Nothing contained in 8[clause (b) or clause (c)] of sub-section (2) shall be deemed to authorise the 9[rejection] of the nomination of any candidate on the ground of any irregularity in respect of a nomination

paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.

(4) The returning officer shall not reject any nomination paper on the ground of any 10[***] defect which is not of a substantial character. (5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause (b) of section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control: Provided that in case 11[an objection is raised by the returning officer or is made by any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. 12[(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950). (8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.]

20. The provisions contained in Sub-section (4) of Section 33 makes it clear that if there is defect only regarding misnomer or inaccurate description or clerical, technical or printing error in regard to 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, shall not affect the nomination paper. Now, admittedly in this case, this proviso does not apply as the candidature of the petitioner is rejected only on the ground that one of the proposer does not belong to the constituency i.e. Gandhinagar (North).

21. It is pertinent to note that according to Sub-section (4) of Section 36, the Returning Officer shall not reject any nomination paper on the ground of any defect, which is not of substantial character. Therefore, in the present case, it needs to be decided that the defect found by the Returning Officer in the nomination paper of the present petitioner was substantial in character or not. Now, in view of the provisions contained in Sub-section (1) of Section 33 of the Act, a candidate not set up by a recognized political party has to be deemed to be duly nominated for election from a constituency unless the nomination is subscribed by 10 proposers being electoral of the constituency. This provision of Section 33 is not directory but it is mandatory provision and it is essential on the part of the candidate to have support of at least 10 proposers of the same constituency for which he is filing his candidature. This defect is substantial and not mere technical or clerical mistake or misnomer. Admittedly, in this case, the petitioner was informed by the Returning Officer regarding the defect in his nomination paper. Even if this error was bona fide and crept unintentionally, nevertheless it rendered nomination of the candidate invalid. It is pertinent to note that the discretion has been vested with the Returning Officer to scrutinize the nomination paper and if there is defect, which is substantial in character, then Returning Officer needs to reject such nomination. The exercise of discretionary power is vested with the Returning Officer, which can be exercised fairly and judiciously.

22. At this stage, it is pertinent to note that one of the contention raised by the petitioner is that he has requested for time to correct his nomination but there is no iota of evidence regarding this aspect. Of course, the petition is not opposed by

the private respondent nor the petitioner cross-examined by the other side and the matter has proceeded ex-parte. If any matter is decided ex-parte, and if there is no illegality or perversity found in exercise of discretion in judicious manner by the Returning Officer then prayer of the petitioner to set aside the election cannot be granted.

23. As observed herein above, the defect in the nomination paper of the petitioner is of substantial character and it is not merely a misnomer or inaccurate description or clerical, technical or printing error in regard to name of the candidate or its proposer or any other person or in regard to place mentioned in the electoral roll or the nomination paper. It is crystal clear that the defect in the present case was of a fundamental nature, under which nomination of the candidate was rendered invalid, since he had not presented ten proposers, who are voters of the same constituency. It also appears that Returning Officer has exercised his power vested under him under The Representation of the People Act, 1951. The defect noticed by the Returning Officer in the nomination paper of the present petitioner is vital one and substantial in character and, therefore, no fault could be found on the part of the Returning Officer in rejecting the candidature/nomination of the present petitioner.

24. In view of aforesaid discussion, the Court has answered the issued as above. It is the considered opinion of this Court that present Election Petition is liable to be dismissed. Accordingly, present petition is dismissed. No order as to costs.

25. In view of Rule 305 of the Gujarat High Court Rules, 1993, the registry shall draw up the final order within three days and shall intimate the above decision to (i) The Election Commission of India and (ii) The Speaker of the State Legislature and, thereafter, as soon as possible it shall also forward to Election Commission an authenticated copy of this judgment with the formal order of the Court.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK