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Days after the Gujarat High Court quashed his December 2017 election to the state's Legislative Assembly, Bhupendrasinh Manubha Chudasama has moved the Supreme Court in appeal.
A member of the Bharatiya Janata Party, Chudasama had been declared the winner of the December 2017 Gujarat State Assembly elections over Congress candidate Ashwinbhai Khamsubhai Rathod, by a margin of 327 votes.
Rathod, in turn, contested the validity of the election results before the Gujarat High Court, contending that 429 postal ballot papers had illegally been excluded from consideration during the vote count by Returning Officer Dhaval Jani. Rathod argued that election records were also tampered with to conceal this manipulation.
On Monday, Justice Paresh Upadhyay of the Gujarat High Court ruled in favour of Rathod on this count, holding,
"...it is proved that 429 postal ballot papers were illegally rejected/excluded from consideration by the Returning Officer at the time of counting of votes in the election in question, as against the victory margin of 327 votes."
In his appeal filed through Advocate EC Agrawala, Chudasama has contended that the "High Court has failed to appreciate the proper facts of the case and has reached a completely erroneous conclusion in holding the successful election of the Petitioner as illegal and void."
The appeal under Section-116A of the Representation of the People Act, 1951 has stated that the High Court did not consider that as far as illegal rejection of 429 postal ballots is concerned, Rule 54-A of the Conduct of Election Rules, 1961 clearly draws a distinction between postal ballot and vote.
"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 appellant has also submitted that the Gujarat High Court failed to appreciate that due adherence to the law was given in the counting procedure. Counting of postal ballots started at 8:00 AM and counting of EVM votes started at 8:30 AM, in consonance with the law, it is contended.
"This also has come on record from the Returning Officer’s evidence," submits Chudasma.
While setting aside the election of Chudasama as being void under several provisions of the Representation of People Act, the High Court stated that the result of the election, insofar as it concerns Chudasama, has been materially affected by the "illegal rejection" of 429 votes.
The High Court had also held that Chudasama and his "election agent" have not only attempted, but have successfully obtained and procured assistance from the concerned Returning Officer for the furtherance of his prospects in the election in question.
Chudasama and the concerned Returning Office, Dhaval Jani, were hand in glove in the election in question, ruled the High Court.
However, Chudasma in his appeal states,
"At the time of declaration of results or prior thereto, no written complaint and/or any demand or objection came from the Rathod or his counting agent(s) regarding rejection of 429 postal ballots."
The appeal further states that the High Court also did not consider that the onus of proof is on the person alleging malfeasance and it is for him to prove illegal adjustment/improper rejection of votes.
"It is submitted that Congress candidate Ashwinbhai Khamsubhai Rathod has not discharged this onus of wrongful rejection of votes and that the result was materially affected."
The High Court, however, did not allow the prayer made by Rathod to declare him as the successful candidate for the 2017 elections.
The Judge had directed that the order be communicated to the Gujarat Assembly Speaker and the Election Commission.
Meanwhile, Rathod too has moved the Apex Court in a caveat application filed through Advocate Sunil Fernandes, asking the Court to not do anything in the matter without notice to the Congress leader.
[Read Chudasama's plea here]