Ahmedabad, Oct 8 (PTI) The Gujarat High Court has rejected a petition seeking a direction to the Election Commission (EC) to hold bypoll on the assembly seat of Visavadar which is lying vacant after its sitting MLA resigned ten months ago.
The court, in its order dated October 4, noted that the by-election on the said constituency cannot be held in view of the pendency of a petition filed by a losing candidate against the winning nominee.
A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi dismissed the Public Interest Litigation (PIL) filed by one Kailash Savaliya seeking the court’s direction to the EC to hold bypoll on the seat in Junagadh district which was vacated on December 13, 2023, after its MLA Bhupendra Bhayani of the Aam Aadmi Party (AAP) resigned.
Bhayani later joined the ruling BJP.
Bypoll cannot be held during the pendency of the plea as the petitioner is also contesting his right for being declared a validly elected candidate in case the victory of the eventual winner is set aside by the election tribunal, the court observed.
“It may also be noted that even in a case of death of winning candidate, election petitions are not rendered infructuous, inasmuch as, right to seek declaration as an elected candidate is accrued upon the election petitioner who challenges the election of the winning candidate,” the bench added.
The petitioner’s counsel had said in his submission that as per section 151A of the Representation of the People Act (RPA), the EC is required to declare by-election as the the remainder of the term of the elected member is more than one year.
He pointed out that as per section 86 of the RPA, an election petition is to be decided within a period of six months, and the pendency of such a plea beyond that time-frame does not grant the EC the right to not conduct by-election.
“Moreover, pendency of the election petition is taken as a tool by the concerned party to avoid holding of by-election,” the counsel argued.
The court observed that both the submissions were “misconceived, inasmuch as, neither the EC nor the state government has any control over the proceedings of the election petition.” A special civil application has been separately moved in the HC, which has issued a notice to the EC over not holding bypoll on the Visavadar seat, the bench noted.
The EC had conducted by-elections on five out of six assembly segments that fell vacant after the MLAs winning the seats in December 2022 later resigned.
The poll panel, however, did not declare bypoll on the Visavadar seat due to the pending election petition. PTI KA PD RSY
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