Gujarat minister Bhupendrasinh Chudasama on Wednesday moved the Supreme Court challenging the high court's decision nullifying his 2017 election on the ground of malpractice and manipulation.
Chudasama is currently the minister for law and justice, legislative and parliamentary affairs, education and some other departments in the Vijay Rupani government.
As an interim prayer, the minister sought stay of the operation of the Gujarat high court's Tuesday order till the disposal of his appeal.
The high court had held that Returning Officer "illegally rejected" 429 postal ballots during the counting of votes, while the victory margin was only 327.
Congress candidate Ashwin Rathod had challenged his Bharatiya Janata Party rival's victory from Dholka constituency by a margin of mere 327 votes in the 2017 Gujarat assembly polls.
Chudasama has sought setting aside of the Tuesday order of the high court by terming it as erroneous and contended that it has failed to appreciate that his rival Congress candidate has not led positive, reliable and cogent evidence to prove any of the issues.
Therefore, Rathod was not entitled to be declared as duly elected candidate from '58- Dholakia Constituency' for the Gujarat state assembly elections on December 14, 2017, the minister submitted.
“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,” his plea said.
It said that high court order was erroneous as it answers in affirmative that Rathod has proven that 429 postal ballot papers were illegally rejected at the time of counting of votes and appellant's (Chudasama) election from Dholka constituency was materially affected by improper rejection of the votes.
“Because the high court failed to appreciate that so 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, i.e. when a postal ballot culminates into a vote,” the plea said.
It added that 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 was 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 cast since the said “vote” was not opened at all,” the minister said.
He submitted that the high court erred in allowing the Election Petition on the ground that since the victory margin was less than the total number of postal ballots rejected, the said postal ballots were wrongly rejected and that procedure mandated by law was not followed, therefore the election is liable to be set aside.
The high court had said the procedure adopted for counting of votes was "against the orders of the Election Commission of India" and illegal.
It said that Chudasama indulged in "corrupt practice" under section 123 (7) of the Representation of the People Act, 1951, and was "hand-in-gloves with the then returning officer Dhaval Jani”.
All three facts materially affected the outcome of the election, it said, while declaring it as void.
The HC while rejecting Chudasama's request for a stay to the order, said an election "cannot be permitted to hold the field any further" where 429 postal ballots were excluded from counting "behind everybody's back, including the Observer nominated by the Election Commission," and election record "systematically manipulated" to conceal this fact.
