Case: D.Sanjeevayya Vs. Election Tribunal Andhra Pradesh &amp; Ors

2. At the last General Election to the Andhra Pradesh Legislative Assembly held in February 1962 the appellant and the 2nd respondent - P. Rajaratna Rao - were the contesting candidates for election from the Kodumuru constituency in Kurnool District. The result of the election was announced on February 25, 1962 and the appellant was declared to have been elected by a majority of about 7,000 votes. The second respondent thereafter filed an election petition (Election Petition No. 180 of 1962) under S. 81 of the Representation of the People Act. 1951 (Act 43 of 1951), hereinafter called the Act calling in question the election of the appellant on the ground that various corrupt practices had been committed at the election and claiming a two-fold relief namely, that the election of the appellant should be declared to be void and that respondent No. 2 himself should be declared to have been duly elected. After the appellant had filed written statement, the Election Tribunal, Hyderabad, framed twenty-two issues, but the trial of election petition could not be proceeded with as the appellant filed several interlocutory application raising various objections and after they were overruled by the Election Tribunal, the appellant filed several writ petitions in the Andhra Pradesh High Court. During the pendency of the election petition the appellant was appointed by the President of India as Minister for Labour and Employment in the Central Cabinet. Subsequent to that appointment the appellant was elected as a Member of the Rajya Sabba on March 26,1964. Thereupon the appellant resigned his seat in the Legislative Assembly on April 8, 1964 and intimated the same to the Speaker of the Assembly. 0n September 2, 1965 the appellant filed the present Writ Petition (Writ Petition No. 1253 of 1965) before the Andhra Pradesh High Court praying for a writ in the nature of mandamus commanding the Election Commission of India to act under S. 150 of the Act and call upon the Kodumuru constituency to elect a person for the purpose of filling, up the vacancy caused by the resignation of the appellant The appellant also prayed for a writ directing the Election Commission to withdraw election petition No. 180 of 1962 from the file of the Election Tribunal Hyderabad and to stay all further proceedings in the trial of that election petition pending the disposal of the writ petition. In the Court the of argument before the High Court the appellant did not press the second prayer for directing the Election Commission to withdraw the election petition from the file of the Election Tribunal, Hyderabad. With regard to the first prayer, the High Court held that no case was made out for the issue of a writ of mandamus to the Election Commission and accordingly dismissed the writ petition.

Reasoning:
4. We are unable to accept the argument of the appellant as correct. In our opinion, the provisions of S. 150 of the Act must be interpreted in the context of Sections 84 and 98 (c) and other relevant provisions of Part III of the same Act. If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election. If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise. It cannot be supposed that Parliament contemplated such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is a well-settled rule of construction that the provisions of a statute should be so read as to harmonise with one another and the provisions of one section cannot be used to defeat those of another unless it is impossible to effect reconciliation between them.It is, therefore, not permissible, in the present case, to interpret S. 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 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 be. In the present case, the election petition filed by respondent No. 2 has prayed for a composite relief namely, that the election of the appellant should be declared to be void and that respondent No. 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 No. 2 who filed the election petition or any other candidate is declared elected the provisions of S. 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 S. 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 No. 2 iscannot be argued that the Election Commission is bound to issue a notification for a bye-election forthwith though the climatic conditions are unsuitable for holding such a bye-election.This view is also supported by the circumstance that nois fixed in the section for the Election Commission to call upon the Assembly constituency concerned to elect a person for filling the vacancy. Nor does the section say that the Election Commission shall hold a"forthwith" or "immediately". It is also conceivable that there may be a situation in which the Election Commission may not hold aat all or may hold theafter a delay of 2 or 3 months. Take for instance, a case where a member resigns his seat in the Legislative Assembly of a State 3 months before a General Election is due to be held. It cannot be suggested that the Election Commission is bound under S. 150 (1) of the Act to hold aforthwith in that vacancy. Take also another instance where a member of an Assembly of Himachal Pradesh resigns his seat during winter. Itcannot be argued that the Election Commission is bound to issue a notification for aforthwith though the climatic conditions are unsuitable for holding such a