Can Notify Bye-Election For Manicktala(WB) Constituency After Pending Election Petition Is Withdrawn: ECI Tells Supreme Court

Against this backdrop, the matter reached the Apex Court. Though the Top Court had requested the High Court to expedite the hearing of the Election Petition, the matter was adjourned several times. Regarding this, the Court previously observed that Chaubey was adopting every possible delaying tactic.

“From the events noticed above, including the proceedings reportedly held today, we are satisfied that respondent No.3 is adopting every possible delaying tactic. His counsels are also colluding with him in seeking adjournments on one false pretext or the other. We are constrained to observe that the request made to the High Court on 18.08.2023 has not been taken in its right perspective.”

Accordingly, the Court strictly directed him to appear before the High Court on the next date of hearing, failing which coercive steps against him, including non-bailable warrants, would be taken.

Today, when the matter was taken up for hearing, Senior Advocate PS Patwalia, appearing for Chaubey, apprised the bench that he did not want to press the election petition.

Following this Senior advocate Devadatt Kamat, appearing for the petitioners, requested the Court to keep the matter pending as the election petition is coming up for hearing on May 09, before the High Court. Further, he apprised that the bye election are going to be held on June 01^st and vacancy may be notified.

At this, the counsel for the Election Commission of India submitted that "I have instructions to state that on the date when the Election Petition is withdrawn, that date is construed as a clear vacancy under (Section) 151 A (of the Representation of the People Act, 1951), we have a mandate, and we will proceed according to that." 

It may be noted that this provision mandates the Election Commission to fill the casual vacancies in the Houses of Parliament and State Legislatures through bye-elections within six months from the date of occurrence of the vacancy,

After hearing the submissions, the Bench of Justices Surya Kant and KV Viswanathan, in their order, requested the High Court to pass an appropriate order. The Court also noted that it sees no "impediment" to not accepting the withdrawal application and dismissing the Election Petition. 

“Pursuant to a self speaking order passed on April 26, 2024 the respondent no. 3 has filed a compliance affidavit. It is not necessary to go into the explanation rendered in that affidavit except, to take note of the submission that respondent no. 3(Chaubey) made a oral prayer before the HC to permit him to withdraw the election petition. The High Court, however, on that day directed the petitioner to file an appropriate petition by May 04. In its affidavit, the respondent explains that such an application has been moved…The said application is listed before the Court on May 09. We see no impediment for the High Court to not accept the application and dismiss the EP as withdrawn. Consequently, we request the High Court to pass an appropriate order, in all circumstance, on May 09, 2024.

No sooner the EP is dismissed as withdrawn, the counsel for the Election Commission of India states that he will have instructions to hold the bye elections….Counsel for the election commission shall have formal instructions on the next date of hearing. Post the matter for May 13.”

Case Title: SUVENDU DEY VS. ELECTION COMMISSION OF INDIA., DIARY NO. - 19472/2023