Gujarat HC Rejects PIL To Hold Bypolls For Vacant Visavadar Constituency Seat After MLA Bhupendrabhai Bhayani's Resignation

The Gujarat High Court last week dismissed a public interest litigation plea seeking a direction to the Election Commission of India (ECI) to notify bye-election for the Visavadar Legislative Assembly Constituency, on the ground that a vacancy had arisen after the resignation of the elected candidate Bhupendrabhai Bhayani in December 2023.

A division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi were hearing a plea moved by AAP leader Kailashbhai Savaliya, stating that in view of the statutory mandate under Section 151A of the Representation of People Act wherein the remainder term of the elected member in relation to the vacancy was more than one year, the poll body is required to declare the bye-elections.

The petitioner pointed to Section 151A as per which a bye-election for filling any vacancy is to be held within a period of six months from the date of the occurrence of the vacancy.

The court in its October 4 order said, "Dealing with this submission of the learned Senior counsel for the petitioner, pertinent is to note that it is an admitted fact of the matter that an election petition has been filed by the losing candidate against the election of the wining candidate with reference to the constituency in question, who had submitted resignation during the pendency of the election petition".

"The consequence of pendency of the election petition would be that bye-elections cannot be held for the simple reason that the election petitioner is contesting his right for being declared as validly elected candidate, in case the election of the winning candidate is set aside by the Election tribunal. 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 Counsel appearing for the Election Commission relied on the observation of the Supreme Court in Election Commission of India vs. Telangana Rastra Samithi (2011) which states that "Article 190(3)(b) of the Constitution merely indicates that if a Member of a House of a Legislature of a State resigns his seat by writing to the Speaker and such resignation is accepted, his seat shall become vacant". It does not introduce any element of compulsion on the poll body to hold a bye-election ignoring the provisions of Section 84 of the Act, the apex court had said.

For context, Section 84 provides that a person who moves a petition challenging the election of a candidate, may, in addition to claiming a declaration that the election of all or any of the returned candidates is void also claim a further declaration that he himself or any other candidate has been duly elected.

On the high court's query the senior counsel for the petitioner said that as per the statutory mandate in Section 86 of the Representation of People Act an election petition is to be decided within the period of six months. He submitted that the pendency of an election petition beyond six months, despite the statutory mandate under Section 86(7), does not grant the Election Commission of India the right to not conduct the by-elections.

He further submitted that pendency of the election petition has been taken as a tool by the "concerned party to avoid holding of by-elections".

The court however said, "Both these submissions of the learned Senior counsel are found to be misconceived, inasmuch as, neither the Election Commission of India nor the State Government has any control over the proceedings of the election petition".

On the senior counsel's plea that election petition is to be decided in a time bound manner the court observed that it is open for the petitioner to "persuade the election petitioner to pursue" the pending election petition.

Dismissing the matter the high court said, "In any case, no mandamus can be issued in the facts and circumstances of the present case brought before us. The petition is, thus, dismissed".

Case Title: Kailashbhai Gobarbhai Savaliya v/s Election Commission of India & Ors.

Counsel for petitioner: Senior advocate Percy Kavina along with advocates Punit B Juneja, Aum M Kotwal, Vishal J Dave

Counsel for ECI: Advocate Sahil M Shah

Click Here To Read/Download Order