[Gujarat Panchayat Polls] If a deceased candidate wins election, option is to hold bye-election: Gujarat High Court

If a candidate in Panchayat polls, who passed away before counting of votes, wins the election, the candidate who secured the second highest number of votes cannot be declared winner, the Gujarat High Court ruled. .The option then is for the State Election Commission to hold bye-election, a Bench of Justices JB Pardiwala and Vaibhavi D Nanavati held. The Court, therefore, rejected the petition filed by a BJP candidate who had emerged second in the panchayat election. "We find it extremely difficult to take the view that the writ applicant should be declared as the winner of the election having secured the second highest votes. In fact, none of the rules discussed above say anything in this regard. The only option now left for the State Election Commission is to give a byeelection in accordance with law," the Court held. By way of background, 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 BJP. The polling took place on February 28, 2021. The counting was scheduled on March 2, 2021.However, Lilaben Vikrambhai Thakore passed away on March 1, 2021, i.e. a day prior to the scheduled counting. The Election Officer nevertheless proceeded with the counting of the votes on March 2, 2021 and declared Lilaben as the winner. Lilaben Thakore secured 2163 votes, whereas the writ-applicant herein secured 1409 votes. Although Lilaben secured the highest votes, yet the Election Officer was not able to give effect to the result of the election with on account of the death of Lilaben.The Court examined the Gujarat Panchayats Act 1993 and the Gujarat Panchayat Elections Rules of 1994 to conclude that neither of it provide any scope expressly or by implication to reject votes cast in favour of a deceased candidate. "Neither the Act nor the Rules provide any scope either expressly or by necessary implication for rejection of the votes cast in favour of a deceased candidate on account of her death occurred after the polling and before the counting of the votes," the Court observed. .In this case, on the date of the polling, Lilaben Thakore was very much alive and she passed away a day before the counting of the votes. In such circumstances, the votes cast in favour of Lilaben Thakore cannot be said to be invalid only because on the date of the counting Lilaben Thakore was dead and gone, the Court held. ."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," the Court held. .Hence, it was ruled that the candidate with second highest number of votes cannot be declared elected and the option would be to hold bye-election. "The State Election Commission shall now proceed further to give a bye-election in accordance with law so far as the 17- Pimpan Electoral Division of the Sanand Taluka Panchayat is concerned," the Court directed. .[Read Judgment]