NITIN BANDOPANT SALAGRE versus THE STATE ELECTION COMMISSION & ANR.
[2019] 10 S.C.R. 1121, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Body
A
B
C
D
E
F
G
H
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 electing
Councillor for Bombay Municipal Corporation was conducted and
one candidate was declared successful for the seat reserved for
backward class of citizens – A complaint was filed against the said
successful candidate on the ground that she had wrongly claimed
to be a member of backward class citizen – The District Caste
certificate scrutiny committee invalidated the caste certificate of
the said candidate – Consequently, the said candidate was
disqualified by the Corporation – On account of disqualification,
a casual vacancy arose in the ward – The State Election Commission
issued a notification dated 09.05.2019 notifying the byelection for
ward to fill up casual vacancy u/s.9 of the Act – Writ petitions were
filed by the appellants before the High Court for direction to set
aside the notification dated 09.05.2019 – The appellant claimed
that 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 High
Court to decide the election petition for declaring the appellant as
elected candidate expeditiously – In that writ petition, the High Court
had directed the Court
of Small Causes to decide the election petition
expeditiously – Writ petitions for direction to set aside the notification
dated 09.05.2019 were dismissed by the High Court – On appeal
before the Supreme Court, the appellants contended that since
election petition was pending consideration, the State Election
Commission had no jurisdiction to issue notification for holding a
byelection for electing councillor – Held: 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 u/s. 9 has to advert to the statutory prescription
[2019] 10 S.C.R. 1121
  1121
A
B
C
D
E
F
G
H
1122
SUPREME COURT REPORTS
[2019] 10  S.C.R.
u/s. 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 – In the instant case, when an election petition
was already filed challenging the election of returned candidate
since before invalidation of his or her caste certificate in which
election petition prayer was 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
said aspect of the matter – Further, Commission had 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 was issued fixing dates for
byelection of the wards in question – Therefore,  State Election
Commission directed to take a fresh decision before issuing any
notification fixing dates for holding a byelection of  wards –
Impugned judgment of the High Court set aside.
Allowing the appeals, the Court
HELD: 1. Section 33(2) of the Mumbai Municipal
Corporation Act, 1888 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
recognises the person, who has secured the 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 a 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 the second highest number of votes has been recognised
to obviate holding of fresh elections.  Thus, the Legislative
A
B
C
D
E
F
G
H
1123
Scheme itself recognises the 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.  The 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 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. The 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. [Para 26] [1137-B-H; 1138-A]
2.  One of the factors in taking a decision regarding filling
up of the casual vacancy is as to whether there is no other
candidate, who can be deemed to be elected in place of the
returned candidate.  All these aspects have to be looked into and
considered by the State Election Commission before proceeding
to hold elections.  But this Court makes 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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR.
A
B
C
D
E
F
G
H
1124
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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. [Para 27] [1138-B-D]
3.  In view thereof, with regard to statutory Scheme under
Act, 1888 regarding filling up of casual vacancy, this Court arrives
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.
[Para 36] [1143-C-G]
4.  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, this Court is 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. [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, Andhra
Pradesh and Others AIR 1967 SC 1211 : [1967] SCR
A
B
C
D
E
F
G
H
1125
489 ; Election Commission of India v. Telnagana Rastra
Samiti and Another (2011) 1 SCC 370 : [2010] 14  SCR
468; Pramod Laxman Gudadhe v. Election Commission
of India and Others (2018) 7 SCC 550 : [2018] 4 SCR
397 – referred to.
Case Law Reference
[1967] SCR 489
    referred to
Para 6
[2010] 14 SCR 468
    referred to
Para 6
[2018] 4 SCR 397
    referred to
Para 6
[1982] 3 SCR 318
    relied on
Para 14
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5855
of 2019
From the Judgment and Order dated 10.06.2019 of the High Court
of 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, Chintamani
Bhangoji, Sudhanshu S. Choudhari, Surabhi Guleria, Yogesh Kolte,
Mahesh P. Shinde, Advs. for the Appellant.
Atmaram N. Nadkarni, ASG, Sanjay Hegde, Sr. Adv., Manoj
Sharma, Alok Singh,  Pramod Kathane, Deepak Shukla, Gaurav
Bhardwaj, Kapil Kaushik, Pramod Dayal, Braj K. Mishra, Vijay Kumar,
Dhaval S. Deshpande, Ms. Bharti Tyagi, Ashish Wad, Mrs. Jayashree
Wad, 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 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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR.
A
B
C
D
E
F
G
H
1126
SUPREME COURT REPORTS
[2019] 10  S.C.R.
refer the facts and pleadings in Civil Appeal No. 5855 of 2019 – Nitin
Bandopant Salagre Vs. The State Election Commission & Anr.
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 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
A
B
C
D
E
F
G
H
1127
Municipal Election Petition No.52 of 2017 filed by the
petitioner, 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 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.
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1128
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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
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.
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
A
B
C
D
E
F
G
H
1129
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 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 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:
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1130
SUPREME COURT REPORTS
[2019] 10  S.C.R.
        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 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
A
B
C
D
E
F
G
H
1131
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 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.”
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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1132
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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 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 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
A
B
C
D
E
F
G
H
1133
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 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 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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1134
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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
probably apprehended that a sufficient number of councillors
to fill up vacancies may not be forth-coming. 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,”
A
B
C
D
E
F
G
H
1135
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 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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1136
SUPREME COURT REPORTS
[2019] 10  S.C.R.
a person 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 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.
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,
A
B
C
D
E
F
G
H
1137
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 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 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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1138
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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 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 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)
A
B
C
D
E
F
G
H
1139
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 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 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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1140
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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.
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:-
“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
A
B
C
D
E
F
G
H
1141
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.
32. 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. Under Section 101 enumerate grounds for which a candidate
other than the returned candidate may be declared to have been elected,
which are as follows:-
“101. Grounds for which a candidate other than the returned
candidate may be declared to have been elected.—If any
person who has lodged a petition has, in
addition to calling in
question the election of the returned candidate, claimed a
declaration that he himself or any other candidate has been 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.”
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1142
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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 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
A
B
C
D
E
F
G
H
1143
the second highest votes.  When there is no election petition pending
seeking such declaration, casual vacancy under 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
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
NITIN BANDOPANT SALAGRE v. STATE ELECTION
COMMISSION & ANR. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
1144
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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.
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.
Ankit Gyan
                               Appeals allowed.