Point of Law: in the event a candidate dies or is otherwise unable to serve, the duties of the respective office may not be discharged. At that point “if any person elected to any state, district, county, or other political subdivision office fails to qualify and enter upon the duties of such office within the time fixed by law, such office must be deemed vacant and must be filled by appointment as provided by law

JUDGMENT :

J.B. Pardiwala, J.

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :

“(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the election results dated 08.03.2021 and 02.03.2021 pertaining to 17-Pimpan Electoral Division of the Sanand Taluka Panchayat so far as it declares deceased Lilaben Vikrambhai Thakore as the elected candidate from 17-Pimpan Electoral Division of the Sanand Taluka Panchayat and further be pleased to direct respondent authorities to declare petitioner as the elected candidate from 17-Pimpan Electoral Division of the Sanand Taluka Panchayat;

(B) During pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation of election results dated 08.03.2021 and 02.03.2021 pertaining to 17-Pimpan Electoral Division of the Sanand Taluka Panchayat so far as it declares deceased Lilaben Vikrambhai Thakore as the elected candidate from 17-Pimpan Electoral Division of the Sanand Taluka Panchayat and further be pleased to direct respondent authorities to declare petitioner as the elected candidate from 17-Pimpan Electoral Division of the Sanand Taluka Panchayat;

(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.”

2. A nice and interesting question arises in this case out of the dust and fume of election process.

3. One Lilaben Vikrambhai Thakore (since deceased) and the writ-applicant herein contested the election to the 17-Pimpan Electoral Division of the Sanand Taluka Panchayat. Late Lilaben was an independent candidate, whereas the writ-applicant herein was nominated by a political party, viz. the Bharatiya Janata Party. The polling took place on 28th February 2021. The counting was scheduled on 2nd March 2021. Lilaben Vikrambhai Thakore passed away on 1st March 2021, i.e. a day prior to the scheduled counting. The Election Officer proceeded with the counting of the votes on 2nd March 2021 and declared Lilaben as the winner. Lilaben Thakore secured 2163 votes, whereas the writ-applicant herein secured 1409 votes. Although Lilaben secured the highest votes, yet the Election Officer was not able to give effect to the result of the election with respect to the 17-Pimpan Electoral Division of the Sanand Taluka Panchayat on account of the death of Lilaben Thakore.

4. It is the case of the writ-applicant that as Lilaben Thakore was an independent candidate and the writ-applicant being nominated by a political party, the writ-applicant should have been declared the winner having secured the second highest votes.

5. It is the case of the writ-applicant that the husband of late Lilaben, namely Vikrambhai Ishwarbhai Thakore, had already informed the Election Officer in writing on 1st March 2021, i.e. a day before the counting, that his wife Lilaben had passed away. In such circumstances, according to the writ-applicant the Election Officer should not have counted the votes secured by late Lilaben and even if the Election Officer thought fit to count the votes of late Lilaben, those should have been set apart and he should have declared the writ-applicant as the winner having secured the second highest votes.

6. It appears from the materials on record that the writ-applicant herein preferred an application dated 2nd March 2021 addressed to the Returning Officer and Mamlatdar, Sanand, Ahmedabad, stating as under :

“To,

The Returning Officer & Mamlatdar

Sanand, Ahmedabad.

Sub : To Declare the applicant as Elected Candidate (winner) in 17-Pimpan Taluka Panchayat Seat.

Respected Sir,

I have been declared candidate under the Bhartiya Janta Party for the Seat of 17-Pimpan Taluka Panchayat. In the particular seat