Bhupendrasinh Chudasama Moves SC Against Gujarat HC Judgment Declaring His Election 'Null &Void' [Read Petition]

A day after the Gujarat High Court nullified his election to the State Legislative Assembly,  Bhupendrasinh Chudasama, who was a minister of the Gujarat government, moved the Supreme Court challenigng the same.

The Gujarat High Court's set aside his December 2017 election as void and illegal on the grounds of manipulation and malpractice.

The BJP leader had been declared a winner over Congress candidate Ashwinbhai Rathod, by a margin of 327 votes. This was contested by Rathod before the Gujarat High Court wherein he alleged that Chudasama had indulged in "corrupt practice and breach of many of the mandatory instructions of the Election Commission, at various stages of the election process, more particularly at the time of counting of votes" as the Returning Officer Dhaval Jani had illegally excluded 429 postal ballot papers from consideration.

Justice Paresh Upadhyay of the Gujarat High Court heard the matter and held that the election of Chudasama was void as per Section 100(1)(d)(iii), Section 100(1)(d)(iv) and Section 100(1)(b) of the Representation of People Act, 1951 because the procedure adopted for counting of votes was against the orders of the Election Commission of India and the result of the election had been materially affected by the non-compliance of the provisions of RPA.

Accordingly, Chudasama has filed an appeal against the 12th May decision rendered by Justice Upadhyay. The appeal raises the following questions of law:

A. Whether or not the findings of the High Court are erroneous in so far as the High Court has declared the election as void under Section 100(1)(d)(iv) of RPA, 1951?

B. Whether or not the findings of the High Court are erroneous in so far as the High Court has declared the election as void under Section 100(1)(d)(iii) of RPA, 1951?

C. Whether or not the findings of the High Court are erroneous in so far as the High Court has held that there was illegal rejection of postal ballot papers and/or non-compliance of ECI orders at the time of counting of votes?

D. Whether or not the findings of the High Court are erroneous in so far as the High Court has declared that the election is void under Section 100(1)(b) of RPA, 1951?

E. Whether or not the findings of the High Court are erroneous in so far as the High Court has held that the Respondent is entitled to be declared as the duly elected candidate from the Dholka constituency?

The Appeal states that the High Court has failed to appreciate the distinction between postal ballot and vote, i.e. when a postal ballot culminates into a vote.

"A ballot only becomes a vote at Rule 54(7) which is when the covers in Form 13-B not already dealt with till Rule 54(6) are opened one after another and therefore, in the present case, what is rejected is only 429 postal ballots NOT votes. The 429 ballots have not seen the light of day since the second cover has not been opened and one does not know in whose favour the said vote was case since the said "vote" was not opened at all".

The Appeal further contends that the High Court has failed to consider the aspect of the procedure of the RO not materially affecting the result in any manner so as to lead to the setting aside of the result and the election. It has also been submitted that the Respondent has failed to discharge the onus of wrongful rejection of votes and the fact that the election was materially affected.

It has also been alleged that no case of corrupt practice has been established beyond reasonable doubt and that the Respondent has failed to lead positive, reliable and cogent evidence to prove any of the issues. Further, to bring home the charge of corrupt practice, consent needs to be pleaded as per Sections 99(2), 123(7), 100(1)(b) and Explanation to Section 123(8) and Proviso to Section 123 of the RPA:

"Because the High Court failed to appreciate that no case of corrupt practice with consent of the returned candidate is established through evidence. Only vague and general allegations of corrupt practice made out. Neither consent/agency qua the returned candidate is proved by the Election petitioner."

Accordingly, the Appeal submits that the Order passed by the High Court is "patently bad, illegal, contrary to law and in gross violation of the fundamental rights guaranteed to the Appellant herein under the Constitution of India and is against the spirit of democracy enshrined under the Constitution of India where the election of a rightly elected candidate cannot be set aside".

On that note, the Appeal prays for the quashing of the final judgement and order passed on 12th May, by the Gujarat High Court.  

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