[Rajya Sabha polls] Election Commission tells Bombay High Court plea by Shiv Sena's Suhas Kande not maintainable

The Election Commission of India (EC) on Wednesday raised preliminary objection to the maintainability of the plea filed by Shiv Sena Member of Legislative Assembly (MLA) Suhas Kande challenging the invalidation of his vote cast in the Rajya Sabha elections held on June 10..Kande's writ petition, filed through advocate Ajinkya Udane, has challenged an EC order issued late on June 10 that disallowed his Rajya Sabha vote.According to the EC decision, he breached the voting protocol and ballot paper confidentiality by failing to fold the ballot paper after casting his vote.When the matter was taken up for hearing today, advocate Abhinav Chandrachud appearing for the Election Commission, contended that Kande ought to have filed an election petition and not a writ petition. He sought dismissal of the petition on this preliminary ground. Senior Advocate Anil Anturkar, however, contended that no opportunity of being heard was provided to Kande. It was further contended that the objection to vote cast by Kande was made after the ballot paper was put in the election box and not before. He added that EC did not record any findings while disqualifying the vote.After briefly hearing the parties, Bench of Justices SV Gangapurwala and DS Thakur posted the case for hearing to June 24 to examine the maintainability of the petition. .On election day, after the votes were cast, Yogesh Sagar, a Bharatiya Janta Party (BJP) MLA, accused Kande of showing his ballot paper to a whip of a political party other than the Shiv Sena.The Election Officer, Rajendra Bhagwat, dismissed Sagar's protest after deciding that the allegations were factually wrong.Following that, Muktar Abbas Naqvi, Gajendrasingh Shekhawat, Jitendra Singh, Arjun Ram Meghwal, Om Pathak, Avadeshkumar Singh, and Sanket Gupta of the BJP reportedly submitted a representation to the Election Commission of India that Rajendra Bhagwat had wrongly rejected Yogesh Sagar's objection.The contested order was issued based on this assertion.The plea before the High Court has taken exception to the order on the following grounds amongst others: 1. The Handbook for Returning Officer for Election to Council of the State and the State Legislative Council published by the Election Commission of India contains no provision providing appellate power to the EC of India over orders passed by the Election Officer.2. The power of Election Commission of India to exercise superintendence and control over election is different from exercising appellate jurisdiction over an order passed by the Election Officer.3. Even if it is assumed that the EC has appellate jurisdiction, it cannot be exercised at the instance of political leaders who are not voters in the election.The petition prayed for quashing of the EC order dated 10 June that declared Kande's vote as invalid.It has also asked for a temporary injunction restraining the Election Commission from exercising appellate power over the Election Officer's orders.