Death of winner in election calls for bye-poll; candidate with second highest votes cant be declared as elected: Gujarat HC

Read Judgement: Sonalba Navalsinh Vaghela versus State of Gujarat

Pankaj Bajpai

Ahmedabad, July 9, 2021: The Gujarat High Court has dismissed a petition filed by a BJP candidate, who had emerged second in a panchayat election, praying that he should be declared winner as the candidate who secured the highest votes had died. 

The Division Bench of Justice JB Pardiwala and Justice Vaibhavi D Nanavati held that if the winning candidate in panchayat polls passed away before the counting of votes, then the candidate who secured the second highest number of votes cannot be declared as winner. 

The only option now left for the State Election Commission is to give a bye-election in accordance with law, the Bench said, adding that rules have to be interpreted in a pragmatic and practical manner, consistent with the larger objective and actual difficulties faced in the conduct of an election.

“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,” held the Bench. 

Going by the background of the case, one Lilaben Vikrambhai Thakore and the petitioner contested the election to the 17-Pimpan Electoral Division of the Sanand Taluka Panchayat. Lilaben was an independent candidate while the petitioner was nominated by the BJP. The polling took place on February 28, 2021 and the counting was scheduled on March 2, 2021. However, Lilaben passed away on a day prior to the scheduled counting. 

The Election Officer nevertheless proceeded with the counting and Lilaben was declared the winner. 

“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 Bench said. 

The High Court, therefore, directed the State Election Commission to give hold bye-election in accordance with the law for the 17- Pimpan Electoral Division of the Sanand Taluka Panchayat.