NITIN BANDOPANT SALAGRE versus THE STATE ELECTION COMMISSION & ANR. on 5 August 2019

[2019] 10 S.C.R. 1121

NITIN BANDOPANT SALAGRE

v.

THE STATE ELECTION COMMISSION & ANR.

(Civil Appeal No.5855 of 2019)

AUGUST 05, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Mumbai Municipal Corporation Act, 1888 – ss. 9, 33 and 34– Filling of casual vacancy – General election for electingCouncillor for Bombay Municipal Corporation was conducted andone candidate was declared successful for the seat reserved forbackward class of citizens – A complaint was filed against the saidsuccessful candidate on the ground that she had wrongly claimedto be a member of backward class citizen – The District Castecertificate scrutiny committee invalidated the caste certificate ofthe said candidate – Consequently, the said candidate wasdisqualified by the Corporation – On account of disqualification,a casual vacancy arose in the ward – The State Election Commissionissued a notification dated 09.05.2019 notifying the byelection forward to fill up casual vacancy u/s.9 of the Act – Writ petitions werefiled by the appellants before the High Court for direction to setaside the notification dated 09.05.2019 – The appellant claimedthat since he had secured second highest votes from the said ward,he was entitled to be declared as elected as per s.33 of the Act –Earlier, appellant had filed another writ petition before the HighCourt to decide the election petition for declaring the appellant aselected candidate expeditiously – In that writ petition, the High Courthad directed the Court of Small Causes to decide the election petitionexpeditiously – Writ petitions for direction to set aside the notificationdated 09.05.2019 were dismissed by the High Court – On appealbefore the Supreme Court, the appellants contended that sinceelection petition was pending consideration, the State ElectionCommission had no jurisdiction to issue notification for holding abyelection for electing councillor – Held: By mere pendency ofelection petition filling up of casual vacancy is not to be deferredor postponed – State Election Commission before proceeding to fillup a casual vacancy u/s. 9 has to advert to the statutory prescription

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Au/s. 34 and take a conscious decision by due application of mindand thereafter to proceed to fill up vacancy arose – In each case ofcasual vacancy, there may be different circumstances withoutadverting to which State Election Commission cannot decide to fillup the casual vacancy – In the instant case, when an election petitionwas already filed challenging the election of returned candidateBsince before invalidation of his or her caste certificate in whichelection petition prayer was also made to declare the candidatesecuring second highest votes as deemed elected, the State ElectionCommission may not call for fresh election without considering thesaid aspect of the matter – Further, Commission had issuedCnotification dated 09.05.2019 on subject regarding preparation ofvoters list for byelection for filling up vacancies of MunicipalCorporation but no notification was issued fixing dates forbyelection of the wards in question – Therefore, State ElectionCommission directed to take a fresh decision before issuing anynotification fixing dates for holding a byelection of wards –DImpugned judgment of the High Court set aside.Allowing the appeals, the Court

Conclusion

HELD: 1. Section 33(2) of the Mumbai MunicipalCorporation Act, 1888 incorporated the statutory Scheme that ifEChief Judge of Small Causes Court finds that the person whoseelection is objected to is disqualified for being a councillor, or ifhe finds that the election is not a valid election, he shall set itaside. In either case, he shall direct that the candidate in whosefavour the next highest number of valid votes has been recordedshall be deemed to have been elected. Thus, the statutory SchemeFrecognises the person, who has secured the second highest votesto be deemed to be elected, which provision has beenincorporated for specific purpose and object. It is a matter ofcommon knowledge that holding of election is a cumbersomeprocess involving lot of time, involvement of manpower andGexpenditure. Municipal Corporations under the Act, 1888 hasbeen entrusted with a large number of powers and jurisdictionand every five years, the election for constituting MunicipalCorporation is to be undertaken. The right in a person, who hassecured the second highest number of votes has been recognisedto obviate holding of fresh elections. Thus, the LegislativeH

Scheme itself recognises the declaration of a person securingsecond highest votes as deemed to have been elected. The saidpurpose and object has to be given effect to while interpretingthe provisions of the Act. The second part of Section 9 specificallyprovides for filling up of the casual vacancy in the manner asprovided in Section 34, the question as to “whether there is noother candidate, who can be deemed to be elected in his place”becomes relevant and necessary. For answering the saidquestion, the State Election Commission has to apply its mindand look into all necessary facts pertaining to ward in question.It is further relevant to notice that the requirement of finding outanswer to the above question is relevant when an election petitionhas already been filed by a person claiming that there is acandidate, who can be deemed to be elected in place of returnedcandidate. When there are no election petitions filed underSection 33 or where no prayer is made for declaring candidateobtaining second highest votes, the above question becomesirrelevant and has no bearing on filling up of the casual vacancy.The use of the expression in Section 9, i.e., “as soon as itconveniently may be” indicates that Statute gives discretion tothe State Election Commission to hold byelections for a casualvacancy. The Statute does not mandate holding of byelections,i.e., filling up of casual vacancy as soon as the casual vacancyarises. Discretion has been given to the Commission for apurpose and object. [Para 26] [1137-B-H; 1138-A]

2. One of the factors in taking a decision regarding fillingup of the casual vacancy is as to whether there is no othercandidate, who can be deemed to be elected in place of thereturned candidate. All these aspects have to be looked into andconsidered by the State Election Commission before proceedingto hold elections. But this Court makes it clear that the statutoryScheme does not indicate that by mere filing of an election petitionquestioning the election of returned candidate of ward and seekinga declaration in favour of the election petitioner shall ipso factoput an embargo in the right of State Election Commission toproceed to fill up the casual vacancy. The State ElectionCommission has been statutorily obliged to find out as to whetherthere is no other candidate, who can be deemed to be elected in A

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Aplace of returned candidate, only thereafter it is obliged to holdfresh elections. It postulates a decision making process by dueapplication of mind considering all relevant and necessary factors,eschewing the irrelevant. [Para 27] [1138-B-D]

3. In view thereof, with regard to statutory Scheme underBAct, 1888 regarding filling up of casual vacancy, this Court arrivesat following conclusions:-

(i) By mere pendency of election petition filling up of casualvacancy is not to be deferred or postponed. State ElectionCommission before proceeding to fill up a casual vacancy underCSection 9 has to advert to the statutory prescription under Section34 and take a conscious decision by due application of mind andthereafter to proceed to fill up vacancy arose. In each case ofcasual vacancy, there may be different circumstances withoutadverting to which State Election Commission cannot decide tofill up the casual vacancy; (ii) A casual vacancy caused due toDinvalidation of caste certificate of returned candidate has to befilled up in a manner provided in Section 34 of Act, 1888; (iii)When an election petition has already been filed challenging theelection of returned candidate since before invalidation of his orher caste certificate in which election petition prayer is also madeEto declare the candidate securing second highest votes as deemedelected, the State Election Commission may not call for freshelection without considering the above aspect of the matter.[Para 36] [1143-C-G]

4. Although Commission has issued notification datedF09.05.2019 on subject regarding preparation of voters list forbyelection for filling up vacancies of Municipal Corporation butno notification having yet been issued fixing date for byelectionof wards in question, this Court is of the view that State ElectionCommission may take a fresh decision before issuing anynotification fixing dates for holding a byelection of wards inGquestion. [Para 38] [1140-B-C]

Jyoti Basu and Others v. Debi Ghosal and Others(1982) 1 SCC 691 : [1982] 3 SCR 318 – relied on.

D. Sanjeevayya v. The Election Tribunal, AndhraPradesh and Others AIR 1967 SC 1211 : [1967] SCR

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489 ;Election Commission of India v. Telnagana RastraSamiti and Another(2011) 1 SCC 370 : [2010] 14 SCR468;Pramod Laxman Gudadhe v. Election Commissionof India and Others (2018) 7 SCC 550 : [2018] 4 SCR397 – referred to.

Case Law Reference

[1967] SCR 489 referred toPara 6[2010] 14 SCR 468 referred toPara 6[2018] 4 SCR 397 referred toPara 6[1982] 3 SCR 318 relied onPara 14

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5855of 2019

From the Judgment and Order dated 10.06.2019 of the High Courtof Judicature at Bombay in Writ Petition Lodging No. 1577 of 2019

With

Civil Appeal Nos. 5857, 5856 and 5858 of 2019.

Ms. Meenakshi Arora, Sr. Adv., Vinay Navare, ChintamaniBhangoji, Sudhanshu S. Choudhari, Surabhi Guleria, Yogesh Kolte,Mahesh P. Shinde, Advs. for the Appellant.

Atmaram N. Nadkarni, ASG, Sanjay Hegde, Sr. Adv., ManojSharma, Alok Singh, Pramod Kathane, Deepak Shukla, GauravBhardwaj, Kapil Kaushik, Pramod Dayal, Braj K. Mishra, Vijay Kumar,Dhaval S. Deshpande, Ms. Bharti Tyagi, Ashish Wad, Mrs. JayashreeWad, Sidharth Mahajan, Ms. Sukriti Jaggi, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. These appeals have been filed against the common judgmentof the Bombay High Court dated 10.06.2019 by which separate writpetitions filed by the appellants have been dismissed.

2. The question of law raised in all these appeals being common,all the appeals have been heard together and are being decided by thiscommon judgment. For deciding these appeals, it shall be sufficient to A

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Arefer the facts and pleadings in Civil Appeal No. 5855 of 2019 – NitinBandopant Salagre Vs. The State Election Commission & Anr.

3. The general elections for electing councillor for BombayMunicipal Corporation were held in February, 2017. One Mrs. KesharbenMurji Patel was declared elected on 23.02.2017 as councillor from WardBNo.76. Ward No.76 was reserved for backward class of citizens. Mrs.Kesharben Murji Patel had wrongly claimed to be a member of backwardclass citizen. The appellant filed a complaint before District CasteCertificate Scrutiny Committee and has also filed Election Petition No.52of 2017 before Chief Judge of Small Causes Court, Mumbai underSection 33 of the Mumbai Municipal Corporation Act, 1888 (hereinafterCreferred to as “Act, 1888) challenging the election of Mrs. KesharbenMurji Patel. The District Caste Certificate Scrutiny Committee by itsorder dated 19.08.2017 invalidated the caste certificate of Mrs.Kesharben Murji Patel. Writ Petition No. 181 of 2018 was filed by Mrs.Kesharben Murji Patel seeking direction to the Corporation not toDdisqualify her. The writ petition No. 181 of 2018 was dismissed on02.04.2019 against which special leave petition (C) No.8946 of 2019was filed, which too was dismissed on 24.04.2019. Mrs. KesharbenMurji Patel was disqualified by order dated 05.04.2019 of the Corporation.On account of disqualification of Mrs. Kesharben Murji Patel from Ward No.76, a casual vacancy arose in the said ward. The appellant claimedEto have secured second highest number of votes from Ward No.76,hence he claimed that he ought to have been declared by Chief Judge ofSmall Causes Court as having elected from Ward No.76. The StateElection Commission, Maharashtra issued a notification dated 09.05.2019notifying the byelection for Ward No.76 of the Corporation to fill upFcasual vacancy arising under Section 9 of the Act, 1988. The WritPetition (C) No.1577 of 2019 has been filed by the appellant in the BombayHigh Court praying for following reliefs:- “(a) That this Hon’ble Court be pleased to quash and set asidethe Notification dated 9[th] May, 2019 issued by theGRespondent No.1 State Election Commission therebynotifying the by-elections for Ward No.76 of RespondentNo.2 Corporation to fill up the casual vacancy arisen underSection 9 of MMC Act, 1888.

(b) This Hon’ble Court be pleased to direct the learned SmallHCauses Court at Mumbai to expedite the proceedings in the

Municipal Election Petition No.52 of 2017 filed by thepetitioner, within such time limit as this Hon’ble Court maydeem fit and proper.

(c) Pending hearing and final disposal of this petition, theNotification dated 9[th] May, 2019 issued by the RespondentNo.1 State Election Commission thereby notifying the by-elections for Ward No.76 of Respondent No.2 Corporation,be kindly ordered to stayed.

(d) Ad-interim/interim relief in terms of prayer clause (c) abovebe kindly granted.

(e) Such other and further relief as this Hon’ble Court maydeem fit and proper be kindly granted.”

4. By an interim order passed on 16.05.2019, the High Courtpermitted State Election Commission to proceed with for preparation ofvoters list, however, notification declaring election of the wards was notto be published till 12.06.2019. It is also relevant to notice that WritPetition (L) No.1288 of 2019 was filed by the appellant where directionwas sought for deciding Election Petition No.52 of 2017, which writpetition was disposed of by the High Court on 04.06.2019 requesting thelearned Judge of the Small Causes Court at Bombay to decide the electionpetition expeditiously as possible and in any event by 31[st] August, 2019.Similarly, three other petitioners have filed writ petitions in the High Courtbeing Writ Petition No.1453 of 2019 – Sandeep Raju Naik Vs. TheState Election Commission & Ors.; Writ Petition No.1578 of 2019 –Geeta Kiran Bhandari Vs. The State Election Commission and WritPetition No. 1462 of 2019 – Eknath (Shankar) Dnyandeo Hundar Vs.The State Election Commission. In all the writ petitions, one of the reliefsclaimed was to cancel the notification dated 09.05.2019 issued by theState Election Commission, by which State Election Commission,Maharashtra has issued a notification for preparation of voters list forbyelections for filling up of vacant posts in the Municipal Corporation.The wards from which appellants had contested the elections of councillorwere included in the notification. High Court heard all the writ petitionstogether. High Court had also dispensed with filing of the affidavits ofthe parties. High court by impugned judgment dated 10.06.2019 dismissedall the four writ petitions, aggrieved by which judgment, these appealshave been filed.

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A5. We have heard learned counsel appearing for the appellants,learned counsel for the State Election Commission and learned counselappearing for Municipal Corporation as well as learned counsel forintervener.

6. Learned counsel for the appellant challenging the judgment ofBHigh Court contends that the appellants being candidates having securedsecond highest votes in the election of councillor and the returnedcandidates having been declared disqualified, the appellants are entitledto be declared as elected as per Section 33 of Act, 1888. The ElectionPetition of the appellants where prayer for declaring the appellants aselected candidates being pending consideration, the State ElectionCCommission had no jurisdiction to issue notification for holding a byelectionfor electing councillor. It is submitted that the Statute contemplates thatthe candidates securing second highest votes shall be deemed to beelected as councillor in case of setting aside of the election. Holding ofbyelections till the election petition of the appellant is pending, is notDpermissible in law. Learned counsel for the appellant has placed relianceon judgments of this Court in D. Sanjeevayya Vs. The ElectionTribunal, Andhra Pradesh and Others, AIR 1967 SC 1211; ElectionCommission of India Vs. Telnagana Rastra Samiti and Another,(2011) 1 SCC 370 and Pramod Laxman Gudadhe Vs. ElectionCommission of India and Others, (2018) 7 SCC 550. It is submittedEthat in event byelection is permitted to be held and some other person isdeclared elected in the said election and in the election petition ifdeclaration is made in favour of appellant that he shall be deemed to beelected from the ward of the Municipal Corporation, there shall be twocandidates claiming to represent the constituency, which is not permissibleFas per the statutory Scheme. It is further submitted that the DivisionBench has not followed the view of an earlier Division Bench judgmentdated 17.09.2007 in Writ Petition No.6846 of 2007-Jagdish KuttyAmin Vs. Municipal Corporation of Brihanmumbai & 2 Ors. andfor taking a different view, matter ought to have been referred to alarger bench.G

7. Learned counsel for the respondents refuting the submissionsof the learned counsel for the appellant contends that filing of electionpetition by appellant does not have an effect of postponing the filling upof casual vacancy by the State Election Commission. It is submitted H

that term of councillor being five years and admittedly returned candidatehaving been declared disqualified, the ward cannot remain unrepresented.The election petition filed by the appellant may or may not be decidedduring the tenure of the Municipal Corporation. Had the Statute intendedthat till the election petition is decided with regard to claim of petitionersclaiming declaration as elected candidates, the byelection be not held,there ought to have been some specific provisions in the statutory Scheme.It is submitted that filling up of casual vacancy, which has arisen withinthe meaning of Section 9 of Act, 1888 is not dependent on any electionpetition filed under Section 33 of the Act, 1888. The course of action ascontemplated by Section 33(2) is only relevant for the election petition,which has been filed under Section 33, which does not have any effectof stopping or staying the filling up of casual vacancy. It is submittedthat the Scheme in the Representation of the People Act, 1951 is entirelydifferent from the Scheme in Act, 1888, hence the judgments relied bycounsel for the appellant are not relevant.

8. We have heard the learned counsel for the parties and haveperused the records.

9. The present is a case where returned candidates have beenheld to be disqualified on account of invalidation of caste certificate.The disqualification of the returned candidates, who were initially electedfrom concerned ward of the Municipal Corporation has attained finalitygiving rise to casual vacancy in the office of councillor. Section 9 of theAct, 1888 deals with casual vacancy, which is as follows:-

“9.Casual vacancies how to be filled up.

In the event of non-acceptance of office by a person electedto be a councillor or of the death, resignation or disqualification ofa councillor, of his becoming incapable of acting during the termof his office there shall be deemed to be a casual vacancy in theoffice and such vacancy shall be filled up, as soon as it convenientlymay be, by the election of a person thereto who shall hold officeso long only as the councillor in whose place he is elected wouldhave been entitled to hold it if the vacancy had not occurred.

The casual vacancy in the office of an elected councillor shallbe filled up in the manner provided in section 34:

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Provided that no election shall be held to fill up such vacancyif it occurs within six months preceding the date on which theterm of office of the Councillor expires under section 6A.”

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10. Section 33 of the Act deals with election petitions to be heardand disposed of by the Chief Judge of the Small Causes Court, which isBas follows:- “33.Election petitions to be heard and disposed of by ChiefJudge of the Small Cause Court. (1) If the qualification of anyperson declared to be elected for being a councillor is disputed, orif the validity of any election is questioned, whether by reason ofthe improper rejection by the State Election Commissioner of anomination or of the improper reception or refusal of a vote, orfor any other cause or if the validity of the election of a person isquestioned on the ground that he has committed a corrupt practicewithin the meaning of section 28F, any person enrolled in themunicipal election roll may, at any time, within ten days from thedate on which the list prescribed under clause (k) of section 28was available for sale or inspection apply to the Chief Judge ofthe Small Cause Court. If the application is for a declaration thatany particular candidate shall be deemed to have been elected,the applicant shall make parties to his application all candidateswho, although not declared elected, have, according to the resultsdeclared by the State Election Commissioner under section 32, agreater number of votes than the said candidate, and proceedagainst them in the same manner as against the said candidate.

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(1A) The applicant shall, whenever so required by the Chief Judge,deposit in the Court a sum of Rs. 500 in cash or Governmentsecurities of equivalent value at the market rate of the day assecurity for any costs which the applicant may be ordered to payto other parties to the said application.

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(2) If the said Chief Judge, after making such inquiry as he deemsnecessary, finds that the election was a valid election and that theperson whose election is objected to is not disqualified, he shallconfirm the declared result of the election. If he finds that theperson whose election is objected to is disqualified for being acouncillor, he shall declare such person’s election null and void. Ifhe finds that the election is not a valid election, he shall set it G

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aside. In either case he shall direct that the candidate, if any, inwhose favour the next highest number of valid votes is recordedafter the said person and against whose election no cause ofobjection is found, shall be deemed to have been elected.

(2A) When an election of a person is questioned on the groundthat he has committed a corrupt practice within the meaning ofsection 28F, the Chief Judge shall, if he is satisfied that a candidatehas committed such corrupt practice, declare a candidatedisqualified both for the purposes of that election and of suchfresh election as may be held during the current term of office ofthe councillors elected at the general election and shall set asidethe election of such candidate if he has been elected.

(3) The said Chief Judge’s order shall be conclusive.

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(5) Every election not called in question in accordance with theforegoing provisions shall be deemed to have been to all intents agood and valid election.”

11. Section 34 contains a heading “Procedure if election fails or isset aside”. Section 34 is as follows:- “34.Procedure if election fails or is set aside.

(1) If at any general election or an election held to fill a casualvacancy, no councillor is elected, or the election of any councilloris set aside under sub-section (2) of section 33 and there is noother candidate who can be deemed to be elected in his placeunder the said sub-section, the State Election Commissioner shallappoint another day for holding a fresh election and a fresh electionshall be held accordingly.

(2) A councillor elected under this section shall be deemed tohave been elected to fill a casual vacancy under section 9.”

12. In the facts of the present case, there is no dispute that electionpetitions challenging the elections of the returned candidates were filedby the appellants before the Chief Judge, Small Causes Court prior tothe invalidation of caste certificate by District Caste Certificate ScrutinyCommittee and further in the election petition, the prayer has been made A

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Aby the appellant that he be also declared elected. Prayer (c) of theelection petition is as follows:- “c) The petitioner be declared elected from ward no.76 of therespondent no.1 Corporation, having secured the next highestnumber of valid votes after the respondent No.3 and against whoseelection, no cause of objection is found.”

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13. The State Election Commission has started process for holdingbyelection for filling up of vacant posts in the Municipal Corporation.Whether filing of election petition or pendency of election petition, whereone of the prayers is that petitioner be deemed elected from the ward inCquestion, has effect of postponing the byelections and the State ElectionCommission is denuded from proceeding with holding byelections arethe questions, which need to be answered in these appeals.

14. This Court in Jyoti Basu and Others Vs. Debi Ghosal andOthers, (1982) 1 SCC 691: AIR 1982 SC 983 has laid down thatDright to elect, the right to be elected and the right to dispute an electionare statutory rights. In paragraph No. 8 of the judgment, following hasbeen observed:-

“8. A right to elect, fundamental though it is to democracy, is,anomalously enough, neither a fundamental right nor a commonElaw right. It is pure and simple, a statutory right. So is the right tobe elected. So is the right to dispute an election. Outside of statute,there is no right to elect, no right to be elected and no right todispute an election. Statutory creations they are, and therefore,subject to statutory limitation. An election petition is not an actionat common law, nor in equity. It is a statutory proceeding to whichFneither the common law nor the principles of equity apply but onlythose rules which the statute makes and applies. It is a specialjurisdiction, and a special jurisdiction has always to be exercisedin accordance with the statute creating it. Concepts familiar tocommon law and equity must remain strangers to election lawunless statutorily embodied…….”

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15. Thus, answer to all issues, which have arisen in these appealshas to be deciphered from the statutory Scheme of Act, 1888.“Disqualification of a councillor” is one of the circumstances mentionedin Section 9, which causes a deemed casual vacancy in the office. Section H

9 of the Act also contemplates filling up of the casual vacancy. Furtherwith regard to filling up of vacancy, a rider has been incorporated underSection 9 by following words:- “as soon as it conveniently may be”

16. What is the purpose and meaning of the above expression hasto be examined. Section 9 of the Act is in two parts, the second part hadbeen inserted in Section 9 by Bombay Act No.28 of 1935. First part ofSection 9 provides that a casual vacancy shall be filled up as soon as itconveniently may be by the election of a person thereto. By addition ofsecond part, it is provided that casual vacancy shall be filled up in themanner provided in Section 34. We have to look into Section 34 to findout as to the manner provided for casual vacancy to be filled up. Asnoted above, Section 34(1) provides that if at any general election or anelection held to fill a casual vacancy, no councillor is elected, or theelection of any councillor is set aside under sub-section (2) of section 33and there is no other candidate who can be deemed to be elected in hisplace, the State Election Commissioner shall appoint another day forholding a fresh election. One of the conditions incorporated in sub-section(1) of Section 34 for appointing another day for holding freshelection is that “there is no other candidate who can be deemed to beelected in his place”, thus, in a case, there is a candidate who can bedeemed to be elected in place of a returned candidate, date for electionis not to be appointed.

17. The submission needs to be considered is as to whether Section34(1) has to confine in itself for its operation with respect to Section33(2), i.e., when an election petition of a returned candidate is set asideor the operational conditions as contained in Section 34(1) shall beattracted with regard to filling up of casual vacancy under Section 9.Had second part of Section 9, i.e., “the casual vacancy in the office ofan elected councillor shall be filled up in the manner provided in Section34” been not there in Section 9, there was no difficulty in confiningoperation of Section 34 only to election petition under Section 33(2).

18. The phrase “The casual vacancy in the office of an electedcouncillor shall be filled up in the manner provided in Section 34.” wasadded in Act, 1888 by Bombay Act XXVIII of 1935. Section 34 as itexists at present was also substituted by Act XXVIII of 1935. We need A

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to look into the Statement of Objects and Reasons for amendment inSections 9 and 34. The Statement of Objects and Reasons which werepublished along with Bill No. XXXVI OF 1935 in Bombay GovernmentGazette dated 17.09.1935 is as follows:

“STATEMENT OF OBJECTS AND REASONS.

Section 34 of the City of Bombay Municipal Act (III of 1888) providesthat if no councillor is ‘elected at a general election, the retiringcouncillor or councillors shall, if willing to serve, be deemed tobe re-elected; that if the retiring councillor is not willing toserve, or some of the retiring councillors are willing to serveand some are not, and also in certain other contingencies theCorporation shall fill up the vacancy or vacancies by co-option within fifteen days of a report made by the MunicipalCommissioner in that behalf; and that failing such action bythe Corporation the vacancy or vacancies are to be filled up byelection. These provisions date from a time when local self-government may be said to have been in its infancy; and it wasprobably apprehended that a sufficient number of councillorsto fill up vacancies may not be forth-coming. The provisionsalso appear to have been intended to avoid the trouble andexpense of holding a fresh election after a general electionhad proved infructuous. Conditions have changed since andowing to the keen interest taken in local self-government atthe present day, there is no likelihood of a sufficient number ofcandidates not being available to contest an election. It alsoseems desirable that where an election has been set asideand in the other contingencies contemplated in sections 33 and34 the electors should be given an opportunity ofreturning other representatives of their own choice. TheBill is intended to carry out this object.

16[th] September, 1935

(Signed) S. N. BHUTTO. By order of His’ Excellency the Governor, K. C. SEN,”

19. We may also notice the statutory Scheme of Act, 1888 priorto its amendment made in the year 1935. Section 9 as it existed prior toAmendment 1935 was to the following effect:

“9. Casual Vacancies How to be filled up –

In the event of non-acceptance of office by a person elected orappointed, to be a councillor or of the death, resignation ordisqualification of a councillor, or of his becoming incapable ofacting previous to the day for retirement, there shall be deemed tobe a casual vacancy in the office and such vacancy shall be filledup, as soon as it conveniently may be, by the election orappointment, as the case may be, of a person thereto, who shallhold office so long only as the councillor in whose place he iselected or appointed would have been entitled to hold it, if thevacancy had not occurred.”

20. Section 34 as it originally existed in Act, 1888 was to thefollowing effect:

“34. Procedure of election if fails

1. If from any cause no councillor is elected at any general election,not being one of the first general elections held in accordancewith this Act, the retiring councillor or councillors shall, if willingto serve, be deemed to be re-elected.

2. If, in any such case, the retiring councillor is not willing to serve,or some of the retiring councillors are willing to serve and someare not, or if, in the case of a first general election held in accordance withthis Act, or of an election to fill a casual vacancy, no councillor iselected, or if, in the case of any election, an insufficient number of councillorsare elected,

the commissioner shall without delay inform the corporation ofthe circumstances, and thereupon the corporation, so far as it isconstituted, may appoint a duly qualified person to fill the vacancy,or each vacancy, as the case may be, and if the corporation shallfail within fifteen days after receipt of such information to appoint A

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Aa person as aforesaid, the commissioner shall appoint another dayfor holding a fresh election.

3. A fresh election held under this section shall be held subject inall respects to the same provisions as if it were an election to fill acasual vacancy.”

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21. The Scheme of Act, 1888 as it originally stood provided forretiring councillors, who are willing to serve to be deemed to be re-elected, in case no councillor is elected at any general election.

22. The above provisions were made with intention to avoid thetrouble and expense of holding a fresh election after the general electionChad proved infructuous. The Statement of Objects and Reasons of BillNo. XXXVI of 1935 noticed that owing to the keen interest in the LocalSelf Government at the present day, there is no likelihood of a sufficientnumber of candidates not being available to contest an election. TheStatement of Objects and Reasons of 1935 Amendment alsoDcontemplates that an elector should be given an opportunity of returningother representatives of their own choice subject to contingenciescontemplated in Sections 33 and 34.

23. In Section 34 as noticed above, one of the contingencies isprovided in sub-section (1) of Section 34 for appointing another date ofEholding fresh election when no other candidate who may be deemed tobe elected is available. Thus, when a candidate who can be deemed tobe elected is available, fresh election should not be immediately initiated.

24. The addition of second part in Section 9 by 1935 Amendmentthat “the casual vacancy in the office of an elected councillor shall beFfilled up in the manner provided in Section 34” has to be given meaning.Sections 9 and 34 has to be read together to find out the meaning andpurpose and to interpret both the provisions to harmonise the statutoryScheme. It is true that Section 34 contemplates one of the contingenciesfor holding a fresh election when election of any or all of the councillorsis set aside under sub-section (2) of Section 33.G

25. When a casual vacancy arises due to disqualification of areturned candidate, whether that is not covered by Section 34(1)? In thecases before us, the returned candidate is disqualified by invalidation ofcaste certificate, the outcome of invalidation of caste certificate is sameas setting aside their election. When we read Section 9 and Section 34, H

the event of invalidation of caste certificate of returned candidate shallalso be covered by Section 34(1) and contingency as provided underSection 34(1) shall be held applicable in that event.

26. Section 33(2) incorporated the statutory Scheme that if ChiefJudge of Small Causes Court finds that the person whose election isobjected to is disqualified for being a councillor, or if he finds that theelection is not a valid election, he shall set it aside. In either case, heshall direct that the candidate in whose favour the next highest numberof valid votes has been recorded shall be deemed to have been elected.Thus, the statutory Scheme recognises the person, who has securedsecond highest votes to be deemed to be elected, which provision hasbeen incorporated for specific purpose and object. It is a matter ofcommon knowledge that holding of election is a cumbersome processinvolving lot of time, involvement of manpower and expenditure.Municipal Corporations under the Act, 1888 has been entrusted withlarge number of powers and jurisdiction and every five years, the electionfor constituting Municipal Corporation is to be undertaken. The right ina person, who has secured second highest number of votes has beenrecognised to obviate holding of fresh elections. Thus, the LegislativeScheme itself recognises declaration of a person securing second highestvotes as deemed to have been elected. The said purpose and object hasto be given effect to while interpreting the provisions of the Act. Asnoticed above, when second part of Section 9 specifically provides forfilling up of the casual vacancy in the manner as provided in Section 34,the question as to “whether there is no other candidate, who can bedeemed to be elected in his place” becomes relevant and necessary.For answering the said question, the State Election Commission has toapply its mind and look into all necessary facts pertaining to ward inquestion. It is further relevant to notice that the requirement of findingout answer to the above question is relevant when an election petitionhas already been filed by a person claiming that there is a candidate,who can be deemed to be elected in place of returned candidate. Whenthere are no election petitions filed under Section 33 or where no prayeris made for declaring candidate obtaining second highest votes, the abovequestion becomes irrelevant and has no bearing on filling up of the casualvacancy. The use of the expression in Section 9, i.e., “as soon as itconveniently may be” indicates that Statute gives discretion to the StateElection Commission to hold byelections for a casual vacancy. Statute A

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Adoes not mandate holding of byelections, i.e., filling up of casual vacancyas soon as the casual vacancy arises. Discretion has been given to theCommission for a purpose and object.

27. One of the factors in taking a decision regarding filling up ofthe casual vacancy is as to whether there is no other candidate, who canBbe deemed to be elected in place of returned candidate. All these aspectshave to be looked into and considered by State Election Commissionbefore proceeding to hold elections. But we make it clear that thestatutory Scheme does not indicate that by mere filing of an electionpetition questioning the election of returned candidate of ward and seekinga declaration in favour of the election petitioner shall ipso facto put anCembargo in the right of State Election Commission to proceed to fill upthe casual vacancy. The State Election Commission has been statutorilyobliged to find out as to whether there is no other candidate, who can bedeemed to be elected in place of returned candidate, only thereafter it isobliged to hold fresh elections. It postulates a decision making process Dby due application of mind considering all relevant and necessary factors,eschewing the irrelevant.

28. Now, we come to the judgments of this Court, which havebeen relied by learned counsel for the appellant delivered in reference tothe Representation of the People Act, 1951. Section 150 of theERepresentation of the People Act, 1951 deals with casual vacancies inthe State Legislative Assemblies, which is as follows:- “150. Casual vacancies in the State LegislativeAssemblies.—(1) When the seat of a member elected to theLegislative Assembly of a State becomes vacant or is declaredFvacant or his election to the Legislative Assembly is declared void,the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Official Gazette, call upon theAssembly constituency concerned to elect a person for the purposeof filling the vacancy so caused before such date as may bespecified in the notification, and the provisions of this Act and ofGthe rules and orders made thereunder shall apply, as far as maybe, in relation to the election of a member to fill such vacancy.

(2) If the vacancy so caused be a vacancy in a seat reserved inany such constituency for the Scheduled Castes or for anyScheduled Tribes, the notification issued under sub-section (1)

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shall specify that the person to fill that seat shall belong to theScheduled Castes or to such Scheduled Tribes, as the case maybe.”

29. In D. Sanjeevayya Vs. The Election Tribunal, AndhraPradesh and Others (supra) provisions of Section 150 in context ofSections 84 and 98(c) came to be considered. In the above case, appellanthad resigned his seat in the Legislative Assembly and thereafter filed awrit petition in Andhra Pradesh High Court praying for a writ in thenature of mandamus commanding the Election Commission of India toact under Section 150 of the Act and call upon the constituency to electa person for the purpose of filling up the vacancy caused by resignation.The Election Petition No.180 of 1962 was filed, which was pending inthe Election Tribunal, Hyderabad. One of the prayers was also to stayfurther proceedings in the trial of the election petition. In paragraphNo.5 of the judgment, following was observed:- “5. It is therefore not permissible, in the present case, to interpretSection 150 of the Act in isolation without reference to Part III ofthe Act which prescribes the machinery for calling in question theelection of a returned candidate. When an election petition hasbeen referred to a Tribunal by the Election Commission and theformer is seized of the matter, the petition has to be disposed ofaccording to law. The Tribunal has to adjudge at the conclusion ofthe proceeding whether the returned candidate has or has notcommitted any corrupt practice at the election and secondly, ithas to decide whether the second respondent should or should notbe declared to have been duly elected. A returned candidate cannotget rid of an election petition filed against him by resigning hisseat in the Legislature, whatever the reason for his resignationmay be. In the present case, the election petition filed byRespondent 2 has prayed for a composite relief namely, that theelection of the appellant should be declared to be void and thatRespondent 2 should be declared to be duly elected. In a case ofthis description the Election Commission is not bound immediatelyto call upon the Assembly constituency to elect a person for thepurpose of filling the vacancy caused by the resignation of theappellant. It is open to the Election Commission to await the resultof the election petition and thereafter decide whether a bye-electionshould be held or not. If the election petition is ultimately dismissed A

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Aor if the election is set aside but no further relief is given, a bye-election would follow. If, however, Respondent 2 who filed theelection petition or any other candidate is declared elected theprovisions of Section 150 of the Act cannot operate at all becausethere is no vacancy to be filled. In the present case, therefore, wehold that the Election Commission is not bound under Section 150Bof the Act to hold a bye-election forthwith but may suspend takingaction under that section till the result of the election petition filedby Respondent 2 is known.”

30. This Court held in the above case that it is open to the ElectionCommission to await the result of the election petition and thereafterCdecide whether a byelection should be held or not. This Court held thatElection Commission is not bound under Section 150 to hold a byelection.

31. Another judgment, which has been relied by the appellant isjudgment of this Court in Election Commission of India Vs. TelnaganaRastra Samiti and Another (supra). In the above case, writ petitionDwas filed by the respondent challenging the decision of the Commissionnot to hold byelection to two constituencies in the State of AndhraPradesh. Twelve members of the Assembly had resigned. Commissionissued a press note notifying the holding of byelections for ten vacanciesbut two vacancies were not notified since election petitions were pendingEin which election petitioners had sought to be declared as elected. Writpetition seeking a direction to hold election was filed. The High Court inthe writ petition issued direction to the Commission to hold election. TheElection Commission of India being aggrieved by that judgment had comeup in this Court. Reliance was placed on Section 151A, which wasinserted in the Act by amendment. The judgment of D. SanjeevayyaFcase was referred to and relied. This Court laid down following inparagraph No.46:- “46. We are, therefore, of the firm view that the introduction ofSection 151-A in the Constitution did not alter the position as faras the provisions of Section 84 and consequently Sections 98(c)Gand 101(b) of the 1951 Act are concerned, since although a casualvacancy may have occurred within the meaning of Section 150 ofthe 1951 Act, those vacancies in which election petitions had beenfiled and were pending cannot be held to have become availablefor the purposes of being filled up within the time prescribed underSection 151-A of the 1951 Act. Article 190(3)(b) of the Constitution H

merely indicates that if a Member of a House of a Legislature ofa State resigns his seat by writing to the Speaker and suchresignation is accepted, his seat shall become vacant. It does notintroduce any element of compulsion on the Election Commissionto hold a bye-election ignoring the provisions of Section 84 of theAct. In such cases, we have little hesitation in holding that suchcasual vacancies are not available for being filled up and theCommission will have to wait for holding elections in suchconstituencies until a decision is rendered in regard to the latterpart of Section 84 of the 1951 Act during the life of the House.The view expressed by the High Court that a case has to bedecided in accordance with the laws as existing on the date ofadjudication, while salutary in principle, are not attracted to thefacts of this case in view of the provisions of Section 84 of the1951 Act.

The above judgments of this Court do recognise a discretion inElection Commission to hold a byelection.

32. It is relevant to notice that Scheme in the Representation ofthe People Act, 1951 is little different with regard to filling up of casualvacancies. Under Section 101 enumerate grounds for which a candidateother than the returned candidate may be declared to have been elected,which are as follows:-

“101. Grounds for which a candidate other than the returnedcandidate may be declared to have been elected.—If anyperson who has lodged a petition has, in addition to calling inquestion the election of the returned candidate, claimed adeclaration that he himself or any other candidate has been dulyelected and the High Court is of opinion—

(a) that in fact the petitioner or such other candidate receiveda majority of the valid votes; or (b) that but for the votes obtained by the returned candidate bycorrupt practices the petitioner or such other candidatewould have obtained a majority of the valid votes, the High Court shall, after declaring the election of the returnedcandidate to be void declare the petitioner or such other candidate,as the case may be, to have been duly elected.”

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A33. As per Section 101, there are some limited grounds on whicha candidate other than the returned candidate may be declared to havebeen elected. The judgments of this Court in D. Sanjeevayya (supra)and Election Commission of India (supra) have to be read dealingwith Scheme under the Representation of the People Act, 1951.Judgments of this Court in the above two cases being dealing withBRepresentation of People Act and the statutory Scheme for electingcouncillor in the Municipal Corporation being different, we have to restour judgment on the statutory Scheme of Act, 1888.

34. Another judgment relied by the appellant is Pramod LaxmanGudadhe Vs. Election Commission of India and Others (supra),Cwhich is again on Representation of People Act, 1951 and observationsmade by this Court have to be confined to the statutory Scheme of theRepresentation of People Act. This Court noticed in paragraph No.16of the above judgment earlier judgment of this Court in ElectionCommission of India case, in which following has been laid down:-D“16. The Court in Election Commission of India case, (2011)1 SCC 370 went on to say that the introduction of Section 151-Adid not alter the position as far as the provisions of Section 84 and,consequently, Sections 98(c) and 101(b) of the Act are concerned,although a casual vacancy may have occurred within the meaningEof Section 150 of the Act. The Court made a distinction betweenthe two categories of vacancies, namely, vacancies in whichelection petitions had been filed and are pending and othervacancies where no such cases were filed and pending. The Courtopined that in the first category of cases, the vacancies could nothave been treated to be available for the purposes of filling upFwithin the time prescribed under Section 151-A of the Act merelybecause a member of the House of a Legislature of a State hadresigned and the same had been accepted by the Speaker. Toarrive at the said conclusion, emphasis was laid on Section 84 ofthe Act. In the second category of cases, the Court pronouncedGthat the vacancies would have to be construed as clear vacancieswarranting action under Section 151-A of the Act.”

35. We have already observed that applicability of Section 34with respect to filling up of casual vacancy under Section 9 shall ariseonly when an election petition is already pending and has been filed by aHcandidate claiming declaration in favour of a person, who has secured

the second highest votes. When there is no election petition pendingseeking such declaration, casual vacancy under Section 9 has to be filledup without any impediment. We further make it clear that when Section9 second part provides that casual vacancy has to be filled up in themanner as provided under Section 34, the conditions enumerated inSection 34 has to be strictly construed. Thus, when election of anycouncillor is set aside or it fails, only then Section 34 has to be lookedinto. Section 34 may not be attracted in all categories of casual vacanciesas referred to in Section 9 but present case being a case where returnedcandidates having been declared disqualified due to invalidation of castecertificate, i.e., the election stand in law annulled and seat declaredvacant, the applicability of Section 34 cannot be denied.

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36. From the foregoing discussions, with regard to statutoryScheme under Act, 1888 regarding filling up of casual vacancy, we arriveat following conclusions:-

(i) By mere pendency of election petition filling up of casualvacancy is not to be deferred or postponed. State ElectionCommission before proceeding to fill up a casual vacancy underSection 9 has to advert to the statutory prescription underSection 34 and take a conscious decision by due applicationof mind and thereafter to proceed to fill up vacancy arose. Ineach case of casual vacancy, there may be differentcircumstances without adverting to which State ElectionCommission cannot decide to fill up the casual vacancy.

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(ii) A casual vacancy caused due to invalidation of caste certificateof returned candidate has to be filled up in a manner providedin Section 34 of Act, 1888.

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(iii) When an election petition has already been filed challengingthe election of returned candidate since before invalidation ofhis or her caste certificate in which election petition prayer isalso made to declare the candidate securing second highestvotes as deemed elected, the State Election Commission mayGnot call for fresh election without considering the above aspectof the matter.

37. In the present cases, filing of affidavit having been dispensedwith by the High Court in the writ petition, there is no affidavit of StateElection Commission on record to indicate as to whether State Election H

ACommission has adverted to Section 34 before starting process of holdingbyelections to fill up the casual vacancy or not. We are of the view thatthe Commission may be asked to take a fresh decision regarding holdingof byelections to fill up casual vacancy in these cases.

38. Although Commission has issued notification dated 09.05.2019Bon subject regarding preparation of voters list for byelection for filling upvacancies of Municipal Corporation but no notification having yet beenissued fixing date for byelection of wards in question, we are of the viewthat State Election Commission may take a fresh decision before issuingany notification fixing dates for holding a byelection of wards in questionkeeping in view the observations and conclusions as above.C

39. In the result, the appeals are allowed, impugned judgment ofthe High Court is set side, the State Election Commission may take afresh decision regarding holding of by-election of the wards in questionkeeping in view the observations and conclusions as made above.

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Ankit Gyan

Appeals allowed.

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