IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE THE CHIEF JUSTICE AND THE HON'BLE MR JUSTICE R.SUBHASH REDDY WRIT PETITION NO: 9379 OF 2008 Between: J.Narayanaswamy S/o.Lt J.Venkatappa,Hindu R/o. Flat No.316, Sovereign Shelter Apartment, Lakdikapool Near Nilopher Hospital, Red Hills, Hyd ... PETITIONER AND 1. The Election Commission of India Nirvachan Sadan, Ashoka Road, New Delhi 2. The Union Of India rep. by its Principal Secretary, New Delhi 3. The Chief Electoral Officer, Secretariat, Hyd 4. The Principal Secretary, A.P.State Govt of Secretariat, Hyd ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any writ, order or direction in the nature of writ of Mandamus to order or direction in the nature of writ of Mandamus or appropriate writ or directions to the 1st respondent not to conduct the bye-elections 2008 to the 4 M.P constituencies and 18 M.L.A Constituencies in A.P which were unnecessarily resigned by the constituency Members and consequential relief to order the 1st respondent to take affidavit from the contesting candidates if they are unreasonably resigned their expenditure membership they will be liable to pay the incurred expenditure to the 1st respondent i.e Election Commission of India due to there is vacuum in the Representation of People Act in the interest of justice Counsel for the Petitioner: PARTY-IN-PERSON Counsel for Respondent No.1: MR.C.P. SARATHY FOR MRS.JAYASHREE SARATHY Counsel for Respondent No.2: MR.A. RAJASEKHARA REDDY Counsel for Respondent No.3: MR.M. PRABHAKAR RAO Counsel for Respondent No.4: GP FOR GENERAL ADMINISTRATION The Court made the following: Oral Order: (Per Shri Anil R. Dave, Chief Justice) 1. In this petition, which is in the nature of public interest litigation, the petitioner prays for the following reliefs: “… to issue a writ, order or direction in the nature of mandamus or appropriate writ directions to the 1st respondent not to conduct the bye-elections to the 4 MP constituencies and 18 MLA constituencies which were unnecessarily resigned by the constituency members and consequential relief: to order the 1st respondent to take affidavits from the contesting candidates if they are unreasonably resigned their constituency membership, they will be liable to pay the incurred expenditure to the 1st respondent, i.e. Election Commission of India, due to there is a vacuum in the Representation of People Act in the interest of justice.” 2. The petitioner, who is appearing as party-in-person, has submitted that 4 Members of Parliament had submitted their resignations and the same had been accepted on 03.3.2008 whereas 18 Members of Legislative Assembly had submitted their resignations, which had been accepted on 04.3.2008. 3. Because of the above stated vacancy, respondent No.1 – The Election Commission of India (for short, ‘the Commission’) has issued a Press Note declaring that the Commission has decided to fill up the vacancies in the Lok Sabha as well as Legislative Assemblies of Andhra Pradesh and some other States also. 4. The petitioner has submitted that if the elections are held, the State exchequer will have to spend substantial amount because, according to the petitioner, for holding an election of one Member of Parliament Constituency, the State has to spend approximately Rs.2 crores and 38 lakhs whereas for holding election of one Member of Legislative Assembly Constituency, about Rs.28 lakhs and 37 thousand of expenditure will be incurred. 5. According to the petitioner, the elections for the afore-stated representatives were held in April, 2004 and, therefore, the next election in normal circumstances falls due in April, 2009. According to him, the remaining period is hardly eleven months and, therefore, respondent No.1 should be restrained from holding election so as to save substantial public money. 6. We have heard the petitioner and have also considered the relevant provisions of the Representation of People Act, 1951 (for short, ‘the Act’). 7. Sections 149, 150 and 151-A of the Representation of People Act, 1951 read as under: 149. Casual vacancies in the House of the People.—(1) When the seat of a member elected to the House of the People becomes vacant or is declared vacant or his election to the House of the People is declared void, the Election Commission shall, subject to the provisions of sub-section (2), by a notification in the Gazette of India, call upon the Parliamentary 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. 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. 151A. Time limit for filling vacancies referred to in sections 147, 149, 150 and 151.— Notwithstanding anything contained in Section 147, section 149, section 150 and section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy: Provided that nothing contained in this section shall apply if— (a) the remainder of the term of a member in relation to a vacancy is less than one year; or (b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period. 8. Section 151-A of the Act makes it obligatory on the part of respondent No.1 to hold an election within six months from the date of occurrence of the vacancy – either Member of Legislative Assembly or Member of Parliament. There is a proviso to the said section, which says that if the remainder of the term of a member in relation to a vacancy is less than one year, the provisions contained in the above section shall not apply. 9. Thus, it is very clear that it is obligatory on the part of respondent No.1 to hold election as per the provisions of Section 151-A of the Act. 10. So far as the expenditure to be incurred for holding the election is concerned, as submitted by the petitioner, the said amount cannot be recovered from the concerned representatives of people who have resigned because there is no such legal provision. 11. In view of the afore-stated mandatory provision, in our opinion, this Court cannot give any direction contrary to the statutory provision and, therefore, the petition is dismissed. ANIL R. DAVE, CJ April 28, 2008 R. SUBHASH REDDY, J svs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{BMR}