Breaking: SC Stays Gujarat HC Judgment Declaring State Law Minister Bhupendrasinh Chudasama's Election Null And Void [Read Order]

The Supreme Court stayed the Gujarat High Court order nullifying the 2017 election of BJP leader Bhupendrasinh Chudasama to the Gujarat State Legislative Assembly, and issued notice in the matter.

A bench comprising Justices Mohan M Shantanagoudar and R. Subhash Reddy passed the interim order.

The Gujarat HC had set aside Chudasama's 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 had filed an appeal against the 12th May decision rendered by Justice Upadhyay.

Senior Advocates Harish Salve and Neeraj Kishan Kaul appeared for the Petitioner, while Senior Advocate Kapil Sibal appeared for Rathod. 

Salve submitted to the Bench a sequence of the events and stated that the Judge should have called for the 429 votes and seen whether they had been rightly rejected or not. 



"You have to see if the results are materially affected by this. It is not for the Returning Officer to just be ready and willing to be examined; he HAS to be examined", submitted Salve. 

Kaul then averred that there was no corrupt practice involved as the transfer of officers had taken place under the Election Commission instructions. He further stated that there was no link between the Minister and the Returning Officer, Dhaval Jani. "How is there a material benefit established? I am looking at the Education and Law Minister, having been unseated during the times of COVID". 

Sr. Adv. Sibal, for Rathod, then commenced his submissions. He posited that there were illegalities and manipulations. "Counting started with EVMs. Postal ballots were not even brought in before that. Not even till the 15th round."He further submitted, "There is a Form 20 signed by the RO. It says that 429 postal ballots were rejected, but the RO told the Observer that no ballot was rejected"

On being informed by the Bench that the RO had submitted a written statement, giving reasons for rejection, Sibal reiterated his submission, "But, if they were never counted, how can they be rejected? EC instructions say that you have to count if victory margin is less. In this case, it is 327 ballots. Postal ballots are 429. See the collusion. This deeply malafide".

Justice Shantanagoudar informed the lawyers present that the Gujarat HC Order had to be stayed. Accordingly, the Supreme Court has issued notice in the matter and stayed the Gujarat HC order which had nullified the election of Chudasama.

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