Gujarat High Court: The Bench of Paresh Upadhyay, J. declared the election of BJP candidate Pabubha  Manek to the Gujarat Legislative Assembly (in the 2017 Gujarat Legislative Assembly Elections), as void under Section 100(1)(d)(i) of the Representation of the People Act, 1951.

The ground of challenge raised by the petitioner (a candidate of Congress party) was that the nomination of respondent 1 was defective, since, in his nomination, the number and name of the constituency was not mentioned. Therefore, acceptance of respondent 1’s nomination by the Returning Officer (RO) was illegal.

Respondent objected to the petition stating that the exclusion of number and name of constituency in the nomination was not a defect at all. Arguendo, it was not a defect of substantial character warranting rejection of the said nomination.

The Court observed that Section 33 of the Act mandates completion of nomination paper in the form prescribed under Rule 4 of the Conduct of Election Rules, 1961. After considering all the contingencies provided in proviso to Section 33(4) of the Act, which enlists defects of a substantial character, it was held that exclusion of name and number of the constituency in the nomination was indeed a defect of substantial character. Reliance in this regard was placed on Prahladdas Khandelwal v. Narendra Kumar Salve, (1973) 3 SCC 104. It was opined that the said information could not be said to be irrelevant, and exclusion thereof could not be overlooked by the RO as it was very vital information.

The impugned decision of RO to accept respondent 1’s nomination, inspite of the Prahladdas Judgment, was held to be illegal and perverse. Holding that scrutinization of nominations by the RO is a quasi-judicial function, the Court observed that RO’s was aimed at convincing respondent 1 reach his goal of being elected.

In view of the above, Manek’s nomination was set aside holding that the result of election had been materially affected by the improper acceptance of Manek’s nomination. However, petitioner’s prayer to declare him as the duly elected candidate from Dwarka constituency was declined to hold that “the wish of the people is either with the respondent 1 or with the party, which setup him a candidate. Under either of the circumstances, it would be against the wish of the people, to declare the petitioner as the returned candidate, in the election in question.”

Learned advocate for respondent 1 Mr C.B. Upadhyaya’s prayer for a stay on this Judgment, for some time, was rejected observing that “the very acceptance of the nomination of the respondent 1 was illegal and against the binding judgment of the Supreme Court of India (as noted above). The said illegality cannot be permitted to be perpetuated any further.”[Ahir Meramanbhai Marakhibhai v. Pabubha Viramabha Manek, 2019 SCC OnLine Guj 666, decided on 12-04-2019]

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