REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5855 OF 2019 (arising out of SLP (C) No. 15194 of 2019)

NITIN BANDOPANT SALAGRE  ...APPELLANT  

VERSUS

THE STATE ELECTION COMMISSION & ANR.   ...RESPONDENTS

WITH

CIVIL APPEAL NO. 5857 OF 2019 (arising out of SLP (C) No. 15197 of 2019)

GEETA KIRAN BHANDARI  ...APPELLANT  

VERSUS

THE STATE ELECTION COMMISSION & ANR.   ...RESPONDENTS

WITH

CIVIL APPEAL NO. 5856 OF 2019 (arising out of SLP (C) No. 15195 of 2019)

SANDEEP RAJU NAIK  ...APPELLANT  

VERSUS

THE STATE ELECTION COMMISSION & ORS.   ...RESPONDENTS

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AND

CIVIL APPEAL NO. 5858 OF 2019 (arising out of SLP (C) No. 15200 of 2019)

EKNATH (SHANKAR) DNYANDEO HUNDER  ...APPELLANT  

VERSUS

THE STATE ELECTION COMMISSION & ORS.   ...RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

These appeals have been filed against the common

judgment of the Bombay High Court dated 10.06.2019 by

which separate writ petitions 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  this  common

judgment.  For deciding these appeals, it shall be

sufficient to refer the facts and pleadings in Civil

Appeal No. 5855 of 2019 – Nitin Bandopant Salagre Vs.

The State Election Commission & Anr.   

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3. The general elections for electing councillor for

Bombay Municipal Corporation were held in February,

2017.  One Mrs. Kesharben Murji Patel was declared

elected on 23.02.2017 as councillor from Ward No.76.

Ward  No.76  was  reserved  for  backward  class  of

citizens.  Mrs.  Kesharben  Murji  Patel  had  wrongly

claimed to be a member of backward class citizen.

The appellant filed a complaint before District Caste

Certificate  Scrutiny  Committee  and  has  also  filed

Election Petition No.52 of 2017 before Chief Judge of

Small Causes Court, Mumbai under Section 33 of the

Mumbai Municipal Corporation Act, 1888 (hereinafter

referred to as “Act, 1888) challenging the election

of Mrs. Kesharben Murji Patel.  The District Caste

Certificate  Scrutiny  Committee  by  its  order  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 to disqualify her.

The writ petition No. 181 of 2018 was dismissed on

02.04.2019 against which special leave petition (C)

No.8946 of 2019 was filed, which too was dismissed on

24.04.2019.   Mrs.  Kesharben  Murji  Patel  was

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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

claimed  to  have  secured  second  highest  number  of

votes from Ward No.76, hence he claimed that he ought

to have been declared by Chief Judge of Small Causes

Court as having elected from Ward No.76.  The State

Election  Commission,  Maharashtra  issued  a

notification  dated  09.05.2019  notifying  the

byelection for Ward No.76 of the Corporation to fill

up casual vacancy arising under Section 9 of the Act,

1988.  The Writ Petition (C) No.1577 of 2019 has been

filed  by  the  appellant  in  the  Bombay  High  Court

praying for following reliefs:-

“(a) That this Hon’ble Court be pleased to quash and set aside the Notification dated  9th May,  2019  issued  by  the Respondent  No.1  State  Election Commission  thereby  notifying  the  by- elections for Ward No.76 of Respondent No.2 Corporation to fill up the casual vacancy arisen under Section 9 of MMC Act, 1888.

(b) This  Hon’ble  Court  be  pleased  to direct the learned Small Causes Court at Mumbai to expedite the proceedings in  the  Municipal  Election  Petition No.52 of 2017 filed by the petitioner,

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within such time limit as this Hon’ble Court may deem fit and proper.

(c) Pending hearing and final disposal of this petition, the Notification dated 9th May, 2019 issued by the Respondent No.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)  above  be  kindly granted.

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

4. By  an  interim  order  passed  on  16.05.2019,  the

High  Court  permitted  State  Election  Commission  to

proceed with for preparation of voters list, however,

notification declaring election of the wards was not

to be published till 12.06.2019.  It is also relevant

to notice that Writ Petition (L) No.1288 of 2019 was

filed by the appellant where direction was sought for

deciding Election Petition No.52 of 2017, which writ

petition  was  disposed  of  by  the  High  Court  on

04.06.2019 requesting the learned Judge of the Small

Causes  Court  at  Bombay  to  decide  the  election

petition expeditiously as possible and in any event

by          31st August, 2019.  Similarly, three other

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petitioners  have  filed  writ  petitions  in  the  High

Court being Writ Petition No.1453 of 2019 – Sandeep

Raju Naik Vs. The State Election Commission & Ors.;

Writ Petition No.1578 of 2019 – Geeta Kiran Bhandari

Vs. The State Election Commission and Writ Petition

No. 1462 of 2019 – Eknath (Shankar) Dnyandeo Hundar

Vs. The State Election Commission. In all the writ

petitions, one of the reliefs claimed was to cancel

the notification dated 09.05.2019 issued by the State

Election  Commission,  by  which  State  Election

Commission, Maharashtra has issued a notification for

preparation  of  voters  list  for  byelections  for

filling  up  of  vacant  posts  in  the  Municipal

Corporation.   The  wards  from  which  appellants  had

contested the elections of councillor were included

in the notification.  High Court heard all the writ

petitions together.  High Court had also dispensed

with filing of the affidavits of the parties.  High

court by impugned judgment dated 10.06.2019 dismissed

all  the  four  writ  petitions,  aggrieved  by  which

judgment, these appeals have been filed.  

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5. We have heard learned counsel appearing for the

appellants,  learned  counsel  for  the  State  Election

Commission  and  learned  counsel  appearing  for

Municipal Corporation as well as learned counsel for

intervener.  

6. Learned counsel for the appellant challenging the

judgment of High Court contends that the appellants

being candidates having secured second highest votes

in  the  election  of  councillor  and  the  returned

candidates  having  been  declared  disqualified,  the

appellants are entitled to be declared as elected as

per Section 33 of Act, 1888.  The Election Petition

of  the  appellants  where  prayer  for  declaring  the

appellants  as  elected  candidates  being  pending

consideration, the State Election Commission had no

jurisdiction  to  issue  notification  for  holding  a

byelection for electing councillor. It is submitted

that  the  Statute  contemplates  that  the  candidates

securing second highest votes shall be deemed to be

elected as councillor in case of setting aside of the

election.  Holding  of  byelections  till  the  election

petition  of  the  appellant  is  pending,  is  not

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permissible  in  law.   Learned  counsel  for  the

appellant has placed reliance on judgments of this

Court  in        D.  Sanjeevayya  Vs.  The  Election

Tribunal,  Andhra  Pradesh  and  Others,  AIR  1967  SC

1211;  Election  Commission  of  India  Vs.  Telnagana

Rastra  Samiti  and  Another,  (2011)  1  SCC  370  and

Pramod  Laxman  Gudadhe  Vs.  Election  Commission  of

India and Others, (2018) 7 SCC 550.  It is submitted

that in event byelection is permitted to be held and

some other person is declared elected in the said

election and in the election petition if declaration

is  made  in  favour  of  appellant  that  he  shall  be

deemed to be elected from the ward of the Municipal

Corporation, there shall be two candidates claiming

to  represent  the  constituency,  which  is  not

permissible  as  per  the  statutory  Scheme.   It  is

further  submitted  that  the  Division  Bench  has  not

followed  the  view  of  an  earlier  Division  Bench

judgment dated 17.09.2007 in Writ Petition No.6846 of

2007-Jagdish Kutty Amin Vs. Municipal Corporation of

Brihanmumbai  &  2  Ors.  and  for  taking  a  different

view, matter ought to have been referred to a larger

bench.   

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7. Learned counsel for the respondents refuting the

submissions of the learned counsel for the appellant

contends  that  filing  of  election  petition  by

appellant does not have an effect of postponing the

filling up of casual vacancy by the State Election

Commission.  It is submitted that term of councillor

being  five  years  and  admittedly  returned  candidate

having  been  declared  disqualified,  the  ward  cannot

remain unrepresented.  The election petition filed by

the appellant may or may not be decided during the

tenure of the Municipal Corporation.  Had the Statute

intended that till the election petition is decided

with  regard  to  claim  of  petitioners  claiming

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

within the meaning of Section 9 of Act, 1888 is not

dependent  on  any  election  petition  filed  under

Section 33 of the Act, 1888.  The course of action as

contemplated by Section 33(2) is only relevant for

the  election  petition,  which  has  been  filed  under

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Section  33,  which  does  not  have  any  effect  of

stopping or staying the filling up of casual vacancy.

It is submitted that the Scheme in the Representation

of the People Act, 1951 is entirely different from

the Scheme in Act, 1888, hence the judgments relied

by counsel for the appellant are not relevant.  

8. We have heard the learned counsel for the parties

and have perused the records.           

9. The present is a case where returned candidates

have  been  held  to  be  disqualified  on  account  of

invalidation  of  caste  certificate.   The

disqualification of the returned candidates, who were

initially  elected  from  concerned  ward  of  the

Municipal  Corporation  has  attained  finality  giving

rise to casual vacancy in the office of councillor.

Section 9 of the Act, 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 elected to be a councillor or of  the  death,  resignation  or disqualification  of  a  councillor,  of  his becoming  incapable  of  acting  during  the term of his office there shall be deemed to be a casual vacancy in the office and such

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vacancy shall be filled up, as soon as it conveniently may be, by the election of a person  thereto  who  shall  hold  office  so long only as the councillor in whose place he is elected would have been entitled to hold it if the vacancy had not occurred.

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

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

10. Section  33  of  the  Act  deals  with  election

petitions to be heard and disposed of by the Chief

Judge  of  the  Small  Causes  Court,  which  is  as

follows:-

“33.  Election petitions to be heard and disposed  of  by  Chief  Judge  of  the  Small Cause  Court. (1)  If  the  qualification  of any person declared to be elected for being a  councillor  is  disputed,  or  if  the validity  of  any  election  is  questioned, whether by reason of the improper rejection by  the  State  Election  Commissioner  of  a nomination or of the improper reception or refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of section 28F, any person enrolled in the municipal election roll may, at any time,  within  ten  days  from  the  date  on which the list prescribed under clause (k) of  section  28  was  available  for  sale  or

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inspection apply to the Chief Judge of the Small  Cause  Court.  If  the  application  is for  a  declaration  that  any  particular candidate  shall  be  deemed  to  have  been elected, the applicant shall make parties to  his  application  all  candidates  who, although  not  declared  elected,  have, according  to  the  results  declared  by  the State  Election  Commissioner  under  section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate.

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

(2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was a valid election and that the person whose election is objected to  is  not  disqualified,  he  shall  confirm the declared result of the election. If he finds  that  the  person  whose  election  is objected  to  is  disqualified  for  being  a councillor, he shall declare such person’s election null and void. If he finds that the election is not a valid election, he shall set it aside. In either case he shall direct that the candidate, if any, in whose favour  the  next  highest  number  of  valid votes is recorded after the said person and against  whose  election  no  cause  of objection is found, shall be deemed to have been elected.  

(2A)  When  an  election  of  a  person  is questioned  on  the  ground  that  he  has committed  a  corrupt  practice  within  the meaning  of  section  28F,  the  Chief  Judge

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shall, if he is satisfied that a candidate has  committed  such  corrupt  practice, declare a candidate disqualified both for the purposes of that election and of such fresh election as may be held during the current term of office of the councillors elected at the general election and shall set aside the election of such candidate if he has been elected.  (3) The said Chief Judge’s order shall be conclusive.  

(4) * * * * * * * *  

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

11. Section  34  contains  a  heading  “Procedure  if

election fails or is set 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 casual vacancy, no councillor is elected, or the election of any  councillor  is  set  aside  under  sub- section (2) of section 33 and there is no other  candidate  who  can  be  deemed  to  be elected in his place under the said sub- section,  the  State  Election  Commissioner shall  appoint  another  day  for  holding  a fresh election and a fresh election shall be held accordingly.

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

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12. In the facts of the present case, there is no

dispute  that  election  petitions  challenging  the

elections of the returned candidates were filed by

the appellants before the Chief Judge, Small Causes

Court prior to the invalidation of caste certificate

by District Caste Certificate Scrutiny Committee and

further in the election petition, the prayer has been

made  by  the  appellant  that  he  be  also  declared

elected.  Prayer (c) of the election petition is as

follows:-

“c) The  petitioner  be  declared  elected from ward no.76 of the respondent no.1 Corporation,  having  secured  the  next highest  number  of  valid  votes  after the respondent No.3 and against whose election,  no  cause  of  objection  is found.”  

13.  The  State  Election  Commission  has  started

process  for  holding  byelection  for  filling  up  of

vacant posts in the Municipal Corporation.  Whether

filing of election petition or pendency of election

petition, where one of the prayers is that petitioner

be  deemed  elected  from  the  ward  in  question,  has

effect of postponing the byelections and the State

Election Commission is denuded from proceeding with

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holding byelections are the questions, which need to

be answered in these appeals.  

14. This  Court  in  Jyoti  Basu  and  Others  Vs.  Debi

Ghosal and Others, (1982) 1 SCC 691: AIR 1982 SC 983

has laid down that right to elect, the right to be

elected  and  the  right  to  dispute  an  election  are

statutory  rights.   In  paragraph  No.  8  of  the

judgment, following has been observed:-

“8. A right to elect, fundamental though it is  to  democracy,  is,  anomalously  enough, neither  a  fundamental  right  nor  a  common law  right.  It  is  pure  and  simple,  a statutory  right.  So  is  the  right  to  be 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 to dispute an election. Statutory creations they are, and therefore, subject to  statutory  limitation.  An  election petition is not an action at common law, nor in equity. It is a statutory proceeding to  which  neither  the  common  law  nor  the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance  with  the  statute  creating  it. Concepts familiar to common law and equity must  remain  strangers  to  election  law unless statutorily embodied…….”

15. Thus, answer to all issues, which have arisen in

these appeals has to be deciphered from the statutory

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Scheme  of  Act,  1888.   “Disqualification  of  a

councillor” is one of the circumstances mentioned in

Section 9, which causes a deemed casual vacancy in

the office.  Section 9 of the Act also contemplates

filling  up  of  the  casual  vacancy.   Further  with

regard to filling up of vacancy, a rider has been

incorporated under Section 9 by following words:-

“as soon as it conveniently may be”

16. What  is  the  purpose  and  meaning  of  the  above

expression has to be examined. Section 9 of the Act

is in two parts, the second part had been inserted in

Section 9 by Bombay Act No.28 of 1935.  First part of

Section 9 provides that a casual vacancy shall be

filled up as soon as it conveniently may be by the

election of a person thereto.  By addition of second

part, it is provided that casual vacancy shall be

filled up in the manner provided in Section 34.  We

have to look into Section 34 to find out as to the

manner provided for casual vacancy to be filled up.

As noted above, Section 34(1) provides that if at any

general election or an election held to fill a casual

vacancy, no councillor is elected, or the election of

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any councillor is set aside under sub-section (2) of

section 33 and there is no other candidate who can be

deemed to be elected in his place, the State Election

Commissioner shall appoint another day for holding a

fresh election.  One of the conditions incorporated

in  sub-section(1)  of  Section  34  for  appointing

another day for holding fresh election is that “there

is no other candidate who can be deemed to be elected

in his place”, thus, in a case, there is a candidate

who  can  be  deemed  to  be  elected  in  place  of  a

returned candidate, date for election is not to be

appointed.   

17. The submission needs to be considered is as to

whether Section 34(1) has to confine in itself for

its operation with respect to Section 33(2), i.e.,

when an election petition of a returned candidate is

set aside or the operational conditions as contained

in Section 34(1) shall be attracted 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  of  an  elected  councillor  shall  be

filled up in the manner provided in Section 34” been

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not there in Section 9, there was no difficulty in

confining operation of Section 34 only to election

petition under Section 33(2).   

18. The phrase “The casual vacancy in the office of

an  elected  councillor  shall  be  filled  up  in  the

manner provided in Section 34.”  was added in Act,

1888 by Bombay Act XXVIII of 1935. Section 34 as it

exists at present was also substituted by Act XXVIII

of  1935.  We  need  to  look  into  the  Statement  of

Objects and Reasons for amendment in Sections 9 and

34. The Statement of Objects and Reasons which were

published along with Bill No. XXXVI OF 1935 in Bombay

Government Gazette dated 17.09.1935 is as follows:

“STATEMENT OF OBJECTS AND REASONS.

Section  34  of  the  City  of  Bombay Municipal Act (III of 1888) provides that if no  councillor  is  'elected  at  a  general election,  the  retiring  councillor  or councillors shall, if willing to serve, be deemed  to  be  re-elected;  that  if  the retiring  councillor  is  not  willing  to serve, or some of the retiring councillors are willing to serve and some are not, and also  in  certain  other  contingencies  the Corporation shall fill up the vacancy  or vacancies by co-option within fifteen days of  a  report  made  by  the  Municipal Commissioner  in  that  behalf;  and  that failing such action by the Corporation the vacancy or vacancies are to be filled up by election. These provisions date from a time when local self-government may be said to have  been  in  its  infancy;  and  it  was

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probably  apprehended  that  a  sufficient number of councillors to fill up vacancies may not be forthcoming. The provisions also appear to have been intended to  avoid the trouble  and  expense  of  holding  a  fresh election after a general election had proved infructuous. Conditions have changed  since and  owing  to  the  keen  interest  taken  in local  self-government  at  the  present  day, there  is  no  likelihood  of  a  sufficient number of candidates not being available to contest an election. It also seems desirable that where an election has been set aside and in the other contingencies contemplated in sections 33 and 34 the electors should be given  an  opportunity  of  returning  other representatives  of  their  own  choice.  The Bill is intended to carry out this object.  

16th 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 prior to its amendment made in the year 1935.

Section 9 as it existed prior to Amendment 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  or  appointed,  to  be  a councillor or of the death, resignation or disqualification of a councillor, or of his becoming incapable of acting previous to the day for retirement, there shall be deemed to be a casual vacancy in the office and such vacancy shall be filled up, as soon as it conveniently  may  be,  by  the  election  or appointment, as the case may be, of a person thereto, who shall hold office so long only

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as  the  councillor  in  whose  place  he  is elected  or  appointed  would  have  been entitled to hold it, if the vacancy had not occurred.”

20. Section 34 as it originally existed in Act, 1888

was to the following 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 accordance with this Act,  the  retiring  councillor  or councillors  shall,  if  willing  to 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 some are not, or

if,  in  the  case  of  a  first  general election held in accordance with this Act,  or  of  an  election  to  fill  a casual  vacancy,  no  councillor  is elected, or

if, in the case of any election, an insufficient number of councillors are elected,

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

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as  aforesaid,  the  commissioner  shall appoint  another  day  for  holding  a fresh election.

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

21.  The Scheme of Act, 1888 as it originally stood

provided for retiring 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  the  trouble  and  expense  of  holding  a  fresh

election  after  the  general  election  had  proved

infructuous. The Statement of Objects and Reasons of

Bill No. XXXVI of 1935 noticed that owing to the keen

interest in the Local Self Government at the present

day, there is no likelihood of a sufficient number of

candidates  not  being  available  to  contest  an

election.  The  Statement  of  Objects  and  Reasons  of

1935  Amendment  also  contemplates  that  an  elector

should  be  given  an  opportunity  of  returning  other

21

representatives  of  their  own  choice  subject  to

contingencies contemplated in Sections 33 and 34.   

23.  In  Section  34  as  noticed  above,  one  of  the

contingencies  is  provided  in  sub-section  (1)  of

Section  34  for  appointing  another  date  of  holding

fresh election when no other candidate who may be

deemed  to  be  elected  is  available.  Thus,  when  a

candidate  who  can  be  deemed  to  be  elected  is

available, fresh election should not be immediately

initiated.  

24.  The addition of second part in Section 9 by 1935

Amendment that “the casual vacancy in the office of

an  elected  councillor  shall  be  filled  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 and purpose and to interpret

both  the  provisions  to  harmonise  the  statutory

Scheme. It is true that Section 34 contemplates one

of  the  contingencies  for  holding  a  fresh  election

when election of any or all of the councillors is set

aside under sub-section (2) of Section 33.   

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25. When  a  casual  vacancy  arises  due  to

disqualification  of  a  returned  candidate,  whether

that is not covered by Section 34(1)? In the cases

before us, the returned candidate is disqualified by

invalidation  of  caste  certificate,  the  outcome  of

invalidation of caste certificate is same as setting

aside  their  election.  When  we  read  Section  9  and

Section  34,  the  event  of  invalidation  of  caste

certificate  of  returned  candidate  shall  also  be

covered by Section 34(1) and contingency as provided

under Section 34(1) shall be held applicable in that

event.

26. Section 33(2) incorporated the statutory Scheme

that if Chief Judge of Small Causes Court finds that

the  person  whose  election  is  objected  to  is

disqualified for being a councillor, or if he finds

that the election is not a valid election, he shall

set it aside. In either case, he shall direct that

the candidate in whose favour the next highest number

of valid votes has been recorded shall be deemed to

have  been  elected.   Thus,  the  statutory  Scheme

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recognises the person, who has secured second highest

votes to be deemed to be elected, which provision has

been  incorporated  for  specific  purpose  and  object.

It is a matter of common knowledge that holding of

election  is  a  cumbersome  process  involving  lot  of

time,  involvement  of  manpower  and  expenditure.

Municipal Corporations under the Act, 1888 has been

entrusted  with  large  number  of  powers  and

jurisdiction and every five years, the election for

constituting  Municipal  Corporation  is  to  be

undertaken.  The right in a person, who has secured

second highest number of votes has been recognised to

obviate  holding  of  fresh  elections.   Thus,  the

Legislative Scheme itself recognises declaration of a

person  securing  second  highest  votes  as  deemed  to

have been elected.  The said purpose and object has

to  be  given  effect  to  while  interpreting  the

provisions of the Act.  As noticed above, when second

part of Section 9 specifically provides for filling

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 be deemed to be elected in

his  place”  becomes  relevant  and  necessary.   For

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answering  the  said  question,  the  State  Election

Commission has to apply its mind and look into all

necessary facts pertaining to ward in question.  It

is further relevant to notice that the requirement of

finding out answer to the above question is relevant

when an election petition has already been filed by a

person claiming that there is a candidate, who can be

deemed to be elected in place of returned candidate.

When  there  are  no  election  petitions  filed  under

Section 33 or where no prayer is made for declaring

candidate obtaining second highest votes, the above

question  becomes  irrelevant  and  has  no  bearing  on

filling up of the casual vacancy.  The use of the

expression  in  Section  9,  i.e.,  “as  soon  as  it

conveniently  may  be”  indicates  that  Statute  gives

discretion to the State Election Commission to hold

byelections for a casual vacancy.  Statute does not

mandate holding of byelections, i.e., filling up of

casual vacancy as soon as the casual vacancy arises.

Discretion has been given to the Commission for a

purpose and object.  

27. One of the factors in taking a decision regarding

filling up of the casual vacancy is as to whether 25

there is no other candidate, who can be deemed to be

elected in place of returned candidate.  All these

aspects  have  to  be  looked  into  and  considered  by

State Election Commission before proceeding to hold

elections.  But we make it clear that the statutory

Scheme does not indicate that by mere filing of an

election  petition  questioning  the  election  of

returned candidate of ward and seeking a declaration

in favour of the election petitioner shall ipso facto

put  an  embargo  in  the  right  of  State  Election

Commission to proceed to fill up the casual vacancy.

The  State  Election  Commission  has  been  statutorily

obliged to find out as to whether there is no other

candidate, who can be deemed to be elected in place

of returned candidate, only thereafter it is obliged

to  hold  fresh  elections.  It  postulates  a  decision

making process by due application of mind considering

all  relevant  and  necessary  factors,  eschewing  the

irrelevant.   

28. Now,  we  come  to  the  judgments  of  this  Court,

which have been relied by learned counsel for the

appellant  delivered  in  reference  to  the

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Representation of the People Act, 1951.  Section 150

of the Representation of the People Act, 1951 deals

with  casual  vacancies  in  the  State  Legislative

Assemblies, which is as follows:-

“150.  Casual  vacancies  in  the  State Legislative  Assemblies.—(1) When  the  seat of  a  member  elected  to  the  Legislative Assembly of a State becomes vacant or is declared  vacant  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 the Assembly constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, 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 in any such constituency for  the  Scheduled  Castes  or  for  any Scheduled  Tribes,  the  notification  issued under  sub-section  (1)  shall  specify  that the person to fill that seat shall belong to  the  Scheduled  Castes  or  to  such Scheduled Tribes, as the case may be.”

29. In  D.  Sanjeevayya  Vs.  The  Election  Tribunal,

Andhra  Pradesh  and  Others  (supra)  provisions  of

Section 150 in context of Sections 84 and 98(c) came

to be considered.  In the above case, appellant had

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resigned  his  seat  in  the  Legislative  Assembly  and

thereafter filed a writ petition in Andhra Pradesh

High  Court  praying  for  a  writ  in  the  nature  of

mandamus commanding the Election Commission of India

to act under Section 150 of the Act and call upon the

constituency to elect a person for the purpose of

filling up the vacancy caused by resignation.  The

Election Petition No.180 of 1962 was filed, which was

pending in the Election Tribunal, Hyderabad.  One of

the prayers was also to stay further proceedings in

the trial of the election petition.  In paragraph

No.5 of the judgment, following was observed:-  

“5. It is therefore not permissible, in the present case, to interpret Section 150 of the Act in isolation without reference to Part III of the Act which prescribes the machinery  for  calling  in  question  the election of a returned candidate. When an election  petition  has  been  referred  to  a Tribunal by the Election Commission and the former  is  seized  of  the  matter,  the petition has to be disposed of according to law.  The  Tribunal  has  to  adjudge  at  the conclusion  of  the  proceeding  whether  the returned candidate has or has not committed any  corrupt  practice  at  the  election  and secondly,  it  has  to  decide  whether  the second respondent should or should not be declared  to  have  been  duly  elected.  A returned  candidate  cannot  get  rid  of  an election  petition  filed  against  him  by resigning  his  seat  in  the  Legislature, whatever the reason for his resignation may

28

be.  In  the  present  case,  the  election petition filed by Respondent 2 has prayed for  a  composite  relief  namely,  that  the election  of  the  appellant  should  be declared to be void and that Respondent 2 should be declared to be duly elected. In a case  of  this  description  the  Election Commission is not bound immediately to call upon the Assembly constituency to elect a person  for  the  purpose  of  filling  the vacancy  caused  by  the  resignation  of  the appellant.  It  is  open  to  the  Election Commission  to  await  the  result  of  the election  petition  and  thereafter  decide whether  a  bye-election  should  be  held  or not. If the election petition is ultimately dismissed or if the election is set aside but  no  further  relief  is  given,  a  bye- election  would  follow.  If,  however, Respondent  2  who  filed  the  election petition or any other candidate is declared elected  the  provisions  of  Section  150  of the Act cannot operate at all because there is no vacancy to be filled. In the present case, therefore, we hold that the Election Commission is not bound under Section 150 of the Act to hold a bye-election forthwith but  may  suspend  taking  action  under  that section  till  the  result  of  the  election petition filed by Respondent 2 is known.”

30. This Court held in the above case that it is open

to the Election Commission to await the result of the

election  petition  and  thereafter  decide  whether  a

byelection should be held or not.  This Court held

that Election Commission is not bound under Section

150 to hold a byelection.

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31. Another judgment, which has been relied by the

appellant  is  judgment  of  this  Court  in  Election

Commission of India Vs. Telnagana Rastra Samiti and

Another (supra).  In the above case, writ petition

was filed by the respondent challenging the decision

of  the  Commission  not  to  hold  byelection  to  two

constituencies  in  the  State  of  Andhra  Pradesh.

Twelve  members  of  the  Assembly  had  resigned.

Commission issued a press note notifying the holding

of byelections for ten vacancies but two vacancies

were  not  notified  since  election  petitions  were

pending in which election petitioners had sought to

be  declared  as  elected.   Writ  petition  seeking  a

direction to hold election was filed.  The High Court

in  the  writ  petition  issued  direction  to  the

Commission to hold election.  The Election Commission

of India being aggrieved by that judgment had come up

in this Court.  Reliance was placed on Section 151A,

which  was  inserted  in  the  Act  by  amendment.   The

judgment of  D. Sanjeevayya  case was referred to and

relied.  This Court laid down following in paragraph

No.46:-

30

“46. We are, therefore, of the firm view that the introduction of Section 151-A in the Constitution did not alter the position as far as the provisions of Section 84 and consequently Sections 98(c) and 101(b) of the 1951 Act are concerned, since although a casual vacancy may have occurred within the meaning of Section 150 of the 1951 Act, those vacancies in which election petitions had been filed and were pending cannot be held  to  have  become  available  for  the purposes of being filled up within the time prescribed under Section 151-A of the 1951 Act. Article 190(3)(b) of the Constitution merely  indicates  that  if  a  Member  of  a House of a Legislature of a State resigns his seat by writing to the Speaker and such resignation  is  accepted,  his  seat  shall become  vacant.  It  does  not  introduce  any element  of  compulsion  on  the  Election Commission to hold a bye-election ignoring the provisions of Section 84 of the Act. In such  cases,  we  have  little  hesitation  in holding that such casual vacancies are not available  for  being  filled  up  and  the Commission  will  have  to  wait  for  holding elections  in  such  constituencies  until  a decision  is  rendered  in  regard  to  the latter part 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 be decided in accordance with the laws as  existing  on  the  date  of  adjudication, while  salutary  in  principle,  are  not attracted to the facts of this case in view of the provisions of Section 84 of the 1951 Act.

The above judgments of this Court do recognise a

discretion  in  Election  Commission  to  hold  a

byelection.  

31

33. As  per  Section  101,  there  are  some  limited

grounds on which a candidate other than the returned

candidate may be declared to have been elected.  The

judgments of this Court in D. Sanjeevayya (supra) and

Election Commission of India (supra) have to be read

dealing with Scheme under the Representation of the

People Act, 1951.  Judgments of this Court in the

above two cases being dealing with Representation of

People  Act  and  the  statutory  Scheme  for  electing

councillor  in  the  Municipal  Corporation  being

different,  we  have  to  rest  our  judgment  on  the

statutory Scheme of Act, 1888.        

34. Another  judgment  relied  by  the  appellant  is

Pramod  Laxman  Gudadhe  Vs.  Election  Commission  of

India  and  Others  (supra),  which  is  again  on

Representation of People Act, 1951 and observations

made  by  this  Court  have  to  be  confined  to  the

statutory Scheme of the Representation of People Act.

This Court noticed in paragraph No.16 of the above

judgment earlier judgment of this Court in  Election

Commission of India case, in which following has been

laid down:-

33

“16. The  Court  in  Election  Commission  of India case, (2011) 1 SCC 370 went on to say that the introduction of Section 151-A did 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 meaning of Section 150  of  the  Act.  The  Court  made  a distinction between the two categories of vacancies,  namely,  vacancies  in  which election petitions had been filed and are pending and other vacancies where no such cases  were  filed  and  pending.  The  Court opined that in the first category of cases, the vacancies could not have been treated to be available for the purposes of filling up within the time prescribed under Section 151-A of the Act merely because a member of the House of a Legislature of a State had resigned and the same had been accepted by the  Speaker.  To  arrive  at  the  said conclusion, emphasis was laid on Section 84 of  the  Act.  In  the  second  category  of cases,  the  Court  pronounced  that  the vacancies  would  have  to  be  construed  as clear  vacancies  warranting  action  under Section 151-A of the Act.”

35. We have already observed that applicability of

Section  34  with  respect  to  filling  up  of  casual

vacancy  under  Section  9  shall  arise  only  when  an

election  petition  is  already  pending  and  has  been

filed by a candidate claiming declaration in favour

of  a  person,  who  has  secured  the  second  highest

votes.  When there is no election petition pending

seeking  such  declaration,  casual  vacancy  under

34

Section 9 has to be filled up without any impediment.

We further make it clear that when Section 9 second

part provides that casual vacancy has to be filled up

in  the  manner  as  provided  under  Section  34,  the

conditions  enumerated  in  Section  34  has  to  be

strictly  construed.   Thus,  when  election  of  any

councillor  is  set  aside  or  it  fails,  only  then

Section 34 has to be looked into.  Section 34 may not

be attracted in all categories of casual vacancies as

referred to in Section 9 but present case being a

case where returned candidates having been declared

disqualified  due  to  invalidation  of  caste

certificate, i.e., the election stand in law annulled

and  seat  declared  vacant,  the  applicability  of

Section 34 cannot be denied.   

36. From the foregoing discussions, with regard to

statutory Scheme under Act, 1888 regarding filling up

of  casual  vacancy,  we  arrive  at  following

conclusions:-

(i) By  mere  pendency  of  election  petition

filling up of casual vacancy is not to be

deferred  or  postponed.   State  Election

35

Commission before proceeding to fill up a

casual  vacancy  under  Section  9  has  to

advert to the statutory prescription under

Section 34 and take a conscious decision by

due application of mind and thereafter to

proceed to fill up vacancy arose.  In each

case  of  casual  vacancy,  there  may  be

different  circumstances  without  adverting

to which State Election Commission cannot

decide to fill up the casual vacancy.  (ii) A casual vacancy caused due to invalidation

of caste certificate of returned candidate

has to be filled up in a manner provided in

Section 34 of Act, 1888.  (iii) When an election petition has already been

filed challenging the election of returned

candidate since before invalidation of his

or her caste certificate in which election

petition prayer is also made to declare the

candidate securing second highest votes as

deemed  elected,  the  State  Election

Commission may not call for fresh election

without considering the above aspect of the

matter.

36

37. In the present cases, filing of affidavit having

been dispensed with by the High Court in the writ

petition,  there  is  no  affidavit  of  State  Election

Commission on record to indicate as to whether State

Election Commission has adverted to Section 34 before

starting process of holding byelections to fill up

the casual vacancy or not.  We are of the view that

the Commission may be asked to take a fresh decision

regarding holding of byelections to fill up casual

vacancy in these cases.

38. Although Commission has issued notification dated

09.05.2019 on subject regarding preparation of voters

list  for  byelection  for  filling  up  vacancies  of

Municipal Corporation but no notification having yet

been issued fixing date for byelection of wards in

question,  we  are  of  the  view  that  State  Election

Commission may take a fresh decision before issuing

any  notification  fixing  dates  for  holding  a

byelection of wards in question keeping in view the

observations and conclusions as above.  

37

39. In the result, the appeals are allowed, impugned

judgment of the High Court is set side, the State

Election  Commission  may  take  a  fresh  decision

regarding  holding  of  by-election  of  the  wards  in

question  keeping  in  view  the  observations  and

conclusions as made above.

......................J.                              ( ASHOK BHUSHAN )

......................J.                              (  NAVIN SINHA  )

New Delhi,  August 05,2019.   

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