High Court of Gujarat
GUJARAT STATE ELECTION COMMISSIONversusNIDHI AKSHAYKUMAR JAIN (KALLUBHAI)
- Decided
- Disposal
- 53-ALLOWED / GRANTED @ ADM.STAGE
Holding
The stay order was set aside; the by‑elections must proceed as scheduled.
Summary
The Gujarat State Election Commission sought to stay the by‑elections for two councilor seats in Devgadh Bariya Municipality, arguing that the removal of the incumbents under Section 3 of the Gujarat Provisions of Disqualification of Members of Local Authorities for Defection Act, 1986 was being challenged before the writ court. The Single Judge had granted an interim stay, but on appeal the High Court examined whether a stay was justified given that the disqualification order was itself under challenge and that Section 42 of the Gujarat Municipalities Act, 1963 mandates that vacancies be filled by election within six months. The Court found no justification to stay the elections, noting that the by‑elections must proceed and any later decision in the writ petition would affect the elected councilors. Consequently, the Court set aside the stay order for Seat No. 1 and Seat No. 4 of Ward No. 5, while reserving the merits of the disqualification challenge for the writ court. The order clarified that the appeal was allowed in part, but the Court did not adjudicate the substantive claims of the parties.
Issues considered
- Whether a stay of by‑elections is justified pending a writ petition challenging the disqualification of councilors under the Defection Act, 1986.
- Whether Section 42 of the Gujarat Municipalities Act, 1963, which requires by‑elections within six months of a vacancy, precludes a stay of the election process.
- Whether the removal of councilors under Section 3 of the Gujarat Provisions of Disqualification Act, 1986, can be stayed pending judicial review.
Legislation cited
- Gujarat Municipalities Act, 1963 — s. 42
- Gujarat Provisions of Disqualification of Members of Local Authorities for Defection Act, 1986 — s. 3
Subjects
- by‑election
- stay order
- disqualification
- municipal law
- Gujarat Municipalities Act
- Defection Act
- election law
- writ petition
Judgment
C/LPA/634/2026 ORDER DATED: 27/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 634 of 2026
In
R/SPECIAL CIVIL APPLICATION/7850/2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In
R/LETTERS PATENT APPEAL NO. 634 of 2026
=============================================
GUJARAT STATE ELECTION COMMISSION
Versus
NIDHI AKSHAYKUMAR JAIN (KALLUBHAI) & ORS.
=============================================
Appearance:
AISHVARYA(8018) for the Appellant(s) No. 1
MR GH VIRK, GOVERNMENT PLEADER with MS DHARITRI
PANCHOLI, AGP for the Respondent(s) No. 7
MR DEEPAK P SANCHELA(2696) for the Respondent(s) No. 8
MR DIPAN DESAI(2481) for the Respondent(s) No. 1,2,3,4,5,6
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 27/07/2026
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. Having heard the learned counsels for the parties and
perused the record, we find no justification in staying the
by-elections as per the schedule whereof, polling is to
take place on 28.07.2026, when the learned Single Judge
has passed the interim order on 23.07.2026, the date
whereby all the stages of election process were over
except polling.
2. Moreover, the removal of the writ petitioners as
Councilors is on account of the permanent
disqualification under Section 3 of the Gujarat Provisions
Page 1 of 2
C/LPA/634/2026 ORDER DATED: 27/07/2026
of Disqualification of Members of Local Authorities for
Defection Act, 1986, which is subject matter of challenge
before the writ Court. When the removal order itself
was subject matter of challenge and in view of the
mandate of Section 42 of the Gujarat Municipalities Act,
1963, the by-elections for the vacant posts are to be
completed within a period of six months from the date of
occurrence of the vacancies, the petitioners cannot seek
stay of the election process, on the premise that in case
the elections are conducted, the writ petition would be
rendered infructuous.
3. In any case, elections as to the post of Councilor, held as
by-elections, would be subject to the final outcome of the
writ petition.
4. In view of the above, we set aside the judgement and
order dated 23.07.2026 passed by the learned Single
Judge to the extent of challenge to stay/arrest of the
election for Seat No.1 and Seat No.4 of Ward No.5 of
Devgadh Bariya Municipality, by the order impugned.
5. However, we may clarify that we have not entered into
the merits of the claims of the parties, which would
obviously be subject matter of consideration before the
writ court. Detailed reasons for this decision shall
follow.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
Page 2 of 2
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: BIJOY BALAKRISHNA PILLAI(HC00202), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 27/07/2026 15:04:24
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