Case: NITIN BANDOPANT SALAGRE Vs. THE STATE ELECTION COMMISSION &amp; ANR

duly elected and the High Court is of opinion—(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes,the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.?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:-?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 underSection 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 underSection 9 has to be filled up without any impediment. We further make it clear that when Section 9second 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 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.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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.Thus, answer to all issues, which have arisen in these appeals has to be deciphered from the statutory 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 casualsecond 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? beennot 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 ofabove judgments of this Court do recognise a discretion in Election Commission to hold a byelection.It is relevant to notice that Scheme in the Representation of the People Act, 1951 is little different with regard to filling up of casual vacancies.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 underSection 9 has to be filled up without any impediment. We further make it clear that when Section 9second 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 followingBy mere pendency of election petition filling up of casual vacancy is not to be deferred or postponed. State ElectionCommission 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 casualA 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,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.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 asthe 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 Schemerecognises 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.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 tois 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.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.