The judgment came in an election petition filed by Congress leader Ashwin Rathod, who had contested against Chudasama from Dholka in 2017.
THE GUJARAT High Court on Tuesday set aside state minister Bhupendrasinh Chudasama’s election in 2017 on grounds of “corrupt practice” and “manipulation of record”.
Chudasama, who holds charge of multiple departments including education, law and justice, legislative and parliamentary affairs in the BJP government led by Chief Minister Vijay Rupani, was elected from Dholka constituency after defeating the Congress candidate by a margin of 327 votes in the 2017 Assembly polls.
When contacted, Chudasama told The Indian Express: “We are preparing to file a special leave petition in the Supreme Court. We are hopeful of filing it within a day or two.”
The Congress candidate, Ashwin Rathod, had filed a petition challenging Chudasama’s election. Rathod had alleged that the returning officer, Dhaval Jani, had illegally rejected 429 votes received via postal ballot.
Justice Paresh Upadhyay noted in his judgment that during Jani’s deposition, it was learnt that a total of 1,356 votes were received via postal ballot, of which 429 were rejected by him at the time of counting of votes.
However, the court said, while seeking authorisation from the poll observer to declare the results, Jani showed the total votes received via postal ballot and taken into consideration at the time of counting as 927.
“Conjoint consideration of these documentary evidences lead to conclusion that 429 postal ballots were not only not shown to any candidate, including the petitioner, those 429 postal ballots were not shown even to the observer. This also shows that there was manipulation of record of the election in question, more particularly the Final Result Sheet Form-20 by the Returning Officer. This court arrives at the conclusion that 429 postal ballots were illegally excluded from consideration by the Returning Officer at the time of counting of votes and were thus illegally rejected,” said Justice Upadhyay.
Further, as the number of rejected votes (429) was more than the victory margin (327), the court said it was satisfied that the election was materially affected by the Returning Officer’s decision.
“It is declared that the election of the returned candidate (Chudasama) from 58-Dholka constituency for the Gujarat Assembly elections held on 14.12.2017, is void under Section 100(1)(d)(iv) of the Representation of the People Act, 1951,” said the court.
“There is voluminous material on record. it takes this court to an inescapable conclusion that in the present case, the respondent No. 2 (Chudasama) and his election agent have not only attempted but have successfully obtained and procured assistance from the Returning Officer for the furtherance of the prospects of the respondent No. 2 in the election in question. There is also evidence on record that, for that purpose, all sorts of illegalities were committed, which include manipulation and falsification of record of the election. and breach of mandatory instructions of the Election Commission of India with regard to conduct of elections,” it said.
“The above noted unholy nexus ultimately turned out to be quid pro quo arrangement between the Returning Officer and the respondent No. 2 (Chudasama). At this stage, it is again noted that any illegality committed by the Returning Officer or the respondent No. 2 after declaration of result of the election in question may not be a ground in itself to declare the election in question to be void but that would be an additional factor to understand how the respondent No.2 and the Returning Officer were hand in glove,” the court said.
Senior advocate Percy Kavina, who represented Rathod, said “the court also found that corrupt practice, as defined under the Representation of the People Act, Section 123(7) was committed by. Chudasama, his election agent and the Returning Officer Dhaval Jani, and the three acting together resulted in a favourable result for the elected candidate.”
Senior advocate Nirupam Nanavaty, who represented Chudasama, sought a stay on the order, but the court rejected his request.
While Rathod had sought that he should be declared as the duly elected candidate from Dholka, the High Court rejected his request.
BJP spokesperson Bharat Pandya, in a video message, said the order was shocking. “Bhupendrasinh ji has been a senior BJP leader since the time of Jan Sangh. The government is with him. After studying the order and taking advice from lawyers, as well as under guidance from the Centre and state, we will move forward to the Supreme Court. We are hopeful that we will get justice in the Supreme Court,” he said.