HC poser to EC over bypoll after stay on MLA's conviction

The Gujarat High Court Monday asked the Election Commission as to why it declared bypoll to the Talala assembly seat in the state despite knowing that conviction of its sitting MLA Bhagvan Barad of the Congress in a theft case was stayed by a lower court.

A division bench of Justices S R Brahmbhatt and V B Mayani directed the poll panel to submit its reply through an affidavit on Tuesday.

The bench was hearing a petition filed by Barad challenging his disqualification by assembly speaker Rajendra Trivedi following his conviction in the more than two decades old theft case early this month and also declaration of bypoll in Talala, the seat which he won in the 2017 polls.

In its oral submission in the HC, the EC said the by-election date was announced taking into consideration a previous Supreme Court order after Barad was convicted in the case related to illegal mining.

The bypoll is to be held on April 23 alongside Lok Sabha elections in the state.

Barad's lawyer has argued that on March 10, the EC declared by-election to the Talala seat even when the sessions court's March 7 order, staying his conviction, was duly conveyed on the same date to both the poll panel and the assembly speaker.

In his petition, Barad has challenged his disqualification as a legislator by "an order passed by the assembly speaker" and also sought a stay on the EC decision to announce by-election on the seat in Gir Somnath district.

In his plea, the Congress leader has said the EC's decision on holding bypoll in Talala was taken "in haste".

Barad was disqualified from the House after he was sentenced to two years and nine months in jail in the case by a magistrate's court at Sutrapada taluka in Gir Somnath district on March 1.

On an appeal, a sessions court at Veraval in the same district had on March 7 stayed his conviction in the 24-year-old case.

The sessions court's order staying the 60-year-old politician's conviction was set aside by the HC on March 15.

The Gujarat government has defended the Speaker's March 5 order, saying Barad was "automatically disqualified" on March 1 when the magistrate's court sentenced him to over two years in jail, as per the order of the Supreme Court in the Lily Thomas case.

The government counsel has told the HC that Barad's disqualification was automatic and therefore, the EC was right in declaring by-election on his assembly seat which fell vacant.

The magistrate's court had held Barad guilty of theft for excavating limestone worth Rs 2.83 crore through illegal mining on government land in 1995.

Setting aside the sessions court order staying his conviction, the HC had ordered it to hear Barad's plea afresh "without further loss of time".