The Supreme Court Monday stayed the Election Commission’s March 10 notification declaring Gujarat’s Talala assembly constituency seat as vacant and announcing the by-poll there along with the Lok Sabha elections. A bench headed by Chief Justice Ranjan Gogoi also issued notice to the poll panel on a plea by former Congress MLA B D Barad who has moved the apex court against the Gujarat High Court’s March 27 verdict dismissing his plea against the EC’s notification.
The high court had also dismissed Barad’s challenge to the assembly Speaker’s March 5 decision disqualifying him as an MLA following his conviction in a case for offence under section 379 (punishment for theft) of the Indian Penal Code (IPC).
On Monday, the apex court expressed displeasure as to how the EC had notified the Talala assembly seat as vacant and announced the by-poll there when Barad’s conviction was stayed by a Sessions court on March 7.
“How can you (EC) declare the seat to be vacant on March 10 when his (Barad) conviction was stayed on March 7,” the bench, which also comprised Justices Deepak Gupta and Sanjiv Khanna, asked the counsel appearing for the poll panel.
Solicitor General Tushar Mehta, appearing for the state, told the bench that the Sessions court’s March 7 order staying Barad’s conviction in the case was quashed by the high court on March 15.
Senior counsel A M Singhvi, appearing for the petitioner, told the court that the magisterial court’s order convicting Barad was stayed by a Sessions court on March 7 but despite that the poll panel declared the assembly seat as vacant and announced by-polls there.
When Mehta said his disqualification by the Speaker was in accordance with the existing law, the CJI observed that “the Speaker and Governor are there not to obstruct the law but to facilitate the law”.
Mehta then argued that the Sessions court’s order staying his conviction was set aside by the high court. To this, the bench said, “The high court order (setting aside the stay on conviction) came on March 15 then under what authority did the EC declare the seat to be vacant on March 10.”
During the hearing, the bench also referred to section 8 of the Representation of the People Act, 1951 which deals with disqualification of lawmakers on conviction for certain offences.
At the fag end of hearing, Mehta said EC has declared by-polls in several assembly constituencies. “We do not have any problem with any other seat other than this (Talala) seat,” the CJI said and stayed the EC’s March 10 notification.
Barad was convicted by a magisterial court on March 1 in the case and sentenced to two years and nine month jail along with a fine of Rs 2,500.
On the same day, the magistrate had suspended the sentence and released him on bail.
Later, he challenged the order before a Sessions court which stayed his conviction on March 7.
However, on March 5, the Speaker had disqualified Barad and notified the assembly seat as vacant.
In its March 27 order, a division bench of the high court had said that it would not interfere with the EC notification as Barad’s conviction was not stayed and therefore, his disqualification remains.
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