The BJP government in Gujarat on Monday moved the Gujarat High Court, challenging the order of the Gir-Somnath Sessions Court that had stayed the conviction of Congress leader Bhagabhai Barad in a 24-year-old illegal mining case.
Barad, who had won from Talala in the 2017 Assembly elections, was disqualified from the House by Speaker Rajendra Trivedi on March 5, four days after a magisterial court sentenced him to two years and nine months of rigorous imprisonment in the mining case.
The government’s filing of the petition coincided with Barad filing another petition in the High Court seeking quashing of the Speaker’s order disqualifying him as an MLA, calling it “ex facie, illegal, in colourable exercise of power, malafide, arbitrary, politically motivated, biased and unconstitutional and contrary to provisions of the Representation of People’s Act , 1951, and in violation of the constitutional provisions.”
Both the petitions are expected to be heard by the High Court on Tuesday.
Notably, the Election Commission of India on Sunday ordered by-election for the Talala Assembly seat which will be held on April 23.
A government lawyer said that the state government has challenged the stay on conviction of Barad, granted by the Gir Somnath sessions court, on three main grounds. “One, the magisterial court had recorded the grounds of Barad’s conviction in detail. Two, while staying the conviction, the Sessions Court did not give a reasoned order; and third, Barad has criminal antecedents, including a case of dacoity pending against him,” the lawyer said, listing the government’s contention in its petition.
Barad, on the other hand, has challenged his disqualification from the Assembly and the Election Commission’s decision to order bypoll for the seat from where he was elected, by questioning the “haste” with which the government acted to disqualify him.
Barad has argued that the respondents were “in a hurry to declare by-election to the Talala constituency by considering the seat to be vacant, despite the fact that the petitioner does not attract disqualification.”
Contending that the jurisdiction of power to disqualify and declare the Assembly seat vacant is vested only with the Governor of the state and such a decision is to be taken only after consultation with the Election Commission, Barad’s petition alleged, “No such process appears to have been undertaken and the Hon’ble Speaker has directed the disqualification and announced the vacancy. This is unconstitutional and arbitrary.”
Barad claimed that the state Legal Department got the copy of the verdict convicting him on March 5, and “the same day the said Department forwards a copy of the aforesaid judgment to the respondent No.3 (Secretary, Gujarat Legislative Assembly) along with a confidential letter. Surprisingly, the respondent No.3 places the said communication as well as judgment before the Hon’ble Speaker on the same day. The Hon’ble Speaker orders that the petitioner stands disqualified in view of the said judgment of conviction and sentence and also that the seat has fallen vacant w.e.f. 1.3.2019 in view of Article 190(3)(a) of the Constitution of India.”
Seeking direction from the High Court to “stay further implementation, operation and execution of the impugned order…(of disqualification)” and restraining the Election Commission from “initiating any steps in connection with the impugned order”, Barad has asked for “records of the procedure followed after date 01.03.2019 (March 1, 2019 when the magisterial court convicted him), including bringing on record the method and manner in which the impugned order was passed”.
The Election Commission of India, Chief Electoral Officer (Gujarat) and Secretary of Gujarat Legislative Assembly have also been made respondents by Barad in his petition. Barad also stated that the Sutrapada magisterial court had immediately suspended his sentence and granted him bail after convicting him.
On March 1, the magisterial court had found him guilty of mining 2,83,525 metric tonnes of limestone worth Rs 2.83 crore after illegally mining the mineral from gauchar (pastoral land) of Sutrapada town. The court had granted him bail the same day to allow him to appeal against the verdict.
On March 5, the Assembly Speaker disqualified Barad as a member of the Assembly through a notification issued by his office. “The Sutrapada court had delivered its judgement on March 1 and from that day itself, Barad had ceased to be an MLA technically. But since the Speaker recognises an elected person as a member of the Assembly by administering him oath, the office of the Speaker has to formally inform the rest of the members of the House that a certain member has been disqualified and has therefore ceased to be a member of the House. Therefore, after we got the certified copy of the verdict of the Sutrapada court, we issued a notification today, declaring Barad as disqualified as an MLA,” the Speaker had told The Indian Express the same day.
On March 7, the Gir-Somnath sessions court stayed his conviction and also suspended his jail term of two years and nine months.