Deceased Candidate Wins Panchayat Election: Gujarat High Court Refuses To Declare Runner Up Candidate As Winner; Directs SEC To Hold Bye-Elections

The Gujarat High Court has observed that an election candidate dying after the polls but before declaration of result will not be able to fill the seat and thus, the only remedy in such a situation would be to have a bye-election within the stipulated time period.

A division bench comprising of Justice JB Pardiwala and Justice Vaibhavi D Nanavati directed the State Election Commission to proceed with the bye election while dealing with a plea seeking setting aside of a Taluka Panchayat election result, declaring a deceased woman as the winning candidate. The plea instead sought to elect the candidate who had received second highest vote.

"In our opinion, if a candidate, after the poll and before the declaration of the result, dies, then naturally he/she will not be able to fill the seat by reason of his/her death and the only remedy left would be to have a bye-election within the stipulated period of time," the Court observed.

"We are of the view that not only technically but even officially the deceased person having secured the highest valid votes under the provision of law has to be declared to have been elected, but the result would be a notional one," it added.

The Deceased, Lilaben Vikrambhai Thakore, an independent candidate, was declared as the elected candidate. In view of the said fact, Sonalba Naval Singh, a BJP candidate, had moved the High Court challenging the election results and seeking a stay on the same till final disposal of the petition.

The polling took place on 28th February 2021 whereas the counting was scheduled for 2nd March, however, the deceased passed away on 1st March, a day before the scheduled counting. The Election Officer proceeded with the counting of the votes on 2nd March 2021 and declared Lilaben as the winner.

It was thus the case of the petitioner that being nominated by a political party, she should have been declared the winner having secured the second highest votes.

The question before the Court was that whether a candidate nominated by a political party and who secured the second highest number of votes in a panchayat election be declared a winner if the candidate (independent) who secured the maximum number of votes dies in the period between the polling and the counting of votes ?

Analysing the relevant provisions of Gujarat Panchayats Act, 1993, the Court summarized thus:

"At that stage, the death of a candidate securing highest number of votes if reported, the Returning Officer is under an obligation to report the death of the candidate to the State Election Commission as intended in Rule 63. It is pertinent to note that under Rule 63, the Returning Officer can be directed by the State Election Commission not to declare the result of the election without the permission of the Commission."

"It is well-settled that the statutory authority cannot do what is not provided in the statute expressly. In other words, it cannot exercise inherent power like a civil court to meet and mitigate any thorny situation so as to reach to a logical conclusion. If such a power is imagined, it would lead to giving charter of taking arbitrary and capricious action inviting violence of Article 14 of the Constitution of India," the Court said.

Coming to the facts of the case, the Court held that votes cast in favour of deceased Lilaben Thakore cannot be said to be invalid only because on the date of the counting she was dead and gone.

"We find it extremely difficult to take the view that as Lilaben Thakore was an independent candidate the election could not have been countermanded and her votes should not have been taken into consideration for the purpose of declaration of the result and the writ-applicant, having secured the second highest votes, should have been declared as the winner," the Court said.

In view of the aforesaid discussion, the Court held that since Lilaben Thakore was alive on the date of the polling, the only alternative therefore is to go for a bye-election.

Directing the State Election Commission to proceed further to give a bye-election in accordance with law, the Court rejected the writ petition.

Title: SONALBA NAVALSINH VAGHELA v. STATE OF GUJARAT

Click Here To Read Judgment