Setback to ECI as HC cancels Katol bypoll

Nagpur: The Nagpur bench of Bombay High Court on Friday ruled out any possibilities of conducting bypolls in the Katol assembly constituency which falls under Nagpur district. It became vacant after the resignation of BJP MLA Ashish Deshmukh who later joined Congress.
The bypolls were scheduled to be held on April 11 along with Lok Sabha elections as per the Election Commission of India’s original schedule. The HC had given a stay on March 19.

A division bench comprising justices Sunil Shukre and Pushpa Ganediwala quashed and set aside ECI’s election programme of March 10 and returning officer’s notification of March 18. “We find that the ECI’s decision to hold by-election to fill up the Katol’s vacancy is arbitrary, discriminatory, unreasonable and violative of principle of rule of law,” the judges said while allowing the petition.

The court’s orders came as big respite to all parties, particularly the Congress and BJP, who were on same side to oppose ECI’s decision. They had the support of NCP, Shiv Sena and other parties.

Sandeep Sarode, the Katol Panchayat Samiti member, has filed the plea through counsel Shreerang Bhandarkar and Madhav Lakhey, challenging ECI’s March 10 notification for holding by polls. He contended that the new incumbent in Deshmukh’s place would get a tenure of only three months since regular assembly polls would again be conducted in October.

He claimed that there would be a big loss of manpower, to the public exchequer and infrastructure in holding elections for the same seat twice in a span of six months, which is against the provisions of Representation of People’s (RP) Act, 1951.

The judges clarified that the plea isn’t hit by the embargo of Article 329 (b) of the Constitution of India. “We make it clear here that it would always be open to ECI to take a fresh look on the issue, in accordance with law.”

They said the arbitrariness and unreasonableness in ECI’s decision is in relation to constituency itself. “It wouldn’t be possible for petitioner to demonstrate successfully that such unreasonableness has materially affected the poll result of a particular candidate. This is something which could be proved only when it’s shown that had it not been for such an arbitrary decision, a particular candidate would never have been elected or his/her election would have been materially affected.”

The HC added the challenge founded on ground of decisions’ arbitrariness to fill up vacancy by applying a different yardstick and by discriminating between two similarly situated constituencies, occupies a plane, different from the level on which the challenge is raised of arbitrariness shown in relation to a particular candidate.

The bench clarified that the remedy of election petition under Section 100(1) (d) (IV) of the RP Act wouldn’t be available in Katol’s case. “Whether hearing this petition would be an interference in election process or a taboo under Article 329 (b)? The first question can be answered in affirmative as once the prescription to hold bye-election in certain timeline goes, the matter becomes entirely discretionary,” the HC said.

Former NCP minister Anil Deshmukh hailed the verdict. “We believe that if ECI had wanted to hold the polls, it should have done just after the seat became vacant. The bypolls at this stage would have wasted efforts of government machinery which could have been better utilized for mitigating water scarcity and drought in the town. The new MLA would have got only one session to attend where he couldn’t even raise the issues. All the political parties had opposed the ECI’s decision,” he said.

BJP district president Rajiv Potdar said, “The assembly polls are not like LS ones as it involves lots of efforts and even expenditure is much more. It would have been a total waste of our efforts and expenditure, as again the candidates have to repeat the exercise in three months. The ECI may move to Supreme Court, but I don’t think it will get relief there.”