Election Commn.Of India vs Telangana Rastra Samithi & Anr

of bye-elections to casual vacancies in the State Legislative Assembly, was allowed by the High

Court by its impugned judgment by applying the

literal rule of interpretation. It was held that

the provisions of Section 151A of the

Representation of the People Act, 1951,

hereinafter referred to as `the 1951 Act', were

mandatory and that the pendency of election

petitions and the uncertain consequences that

might follow would not in any manner dilute the

effect of Section 151A, especially when the

Speaker of the Assembly had already notified the

vacancies as contemplated under Article 190(3)(b)

of the Constitution read with Section 150 of the

aforesaid Act and had directed the Appellant

herein to hold bye-elections for filling up the

vacancies for the two aforesaid Assembly

Constituencies along with bye-elections already

notified for ten other Assembly Constituencies.

3. Briefly stated, the facts indicate that in

order to press for a separate Telangana State, a

Joint Action Committee was formed with all

political parties which took a decision that all

the members of the Legislative Assembly of the

respective political parties should resign. Consequently, 12 members submitted their

resignations from the membership of the Andhra

Pradesh State Legislative Assembly to the Speaker

of the Assembly on 14th February, 2010. On

receipt of the said resignations, the Speaker

ordered that the resultant vacancies be notified.

The said notification was duly published in the

Andhra Pradesh Gazette (Part II Extraordinary)

dated 14.02.2010. The Election Commission of

India issued a Press Note dated 21.06.2010 under

Section 30 of the 1951 Act, notifying its

decision to hold bye-elections to fill up 10

clear vacancies according to the programme

indicated therein. The bye-elections to 28-

Vemulawada and 29-Sircilla Assembly

Constituencies were not notified on account of

the fact that election petitions were pending in

which the petitioners had sought to be declared

elected. Accordingly, there being 10 clear

vacancies in the State Legislative Assembly of

Andhra Pradesh, the Commission decided to hold

bye-elections to fill up the 10 clear vacancies

as per programme indicated. The decision of the

Election Commission of India, hereinafter referred to as "the Commission", not to hold bye-

elections in the two aforesaid constituencies was

challenged in the writ petition, which was

ultimately allowed.

4. The question raised in the writ petition

was whether Section 151A read with Sections 84,

98, 101 and 150 of the 1951 Act, was mandatory or

only directory. A question was also raised as to

whether Section 151A of the above Act is subject

to Article 324 of the Constitution. Since

Section 151A of the 1951 Act is the focal point

of the case made out by the writ petitioners, the

same is extracted hereinbelow :

"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.

5. The High Court took the view that Sections

147, 148, 149, 150, 151 and 151A of the 1951 Act

appear in Part IX which deals with bye-elections.

Part V of the aforesaid Act, which deals with the

conduct of general elections and Part III, do not

prescribe any time limit obliging the Commission

to conduct elections within a period of 6 months

after expiry of the term of the Assembly.

Section 15 of the Act provides that general

elections shall be held for the purpose of

constituting a new legislative assembly on the

expiration of the duration of the existing

Legislative Assembly or on its dissolution. The

proviso thereto prohibits a general election at

any time before six months prior to expiry of the

term of the Assembly. Such prohibition, however,

does not apply to a case where the Legislative

Assembly is dissolved. Interpreting the

provisions of Section 151A of the 1951 Act, the

High Court observed that it is the only provision

in the said Act which prescribes a time limit for

filling casual vacancies both in the Rajya Sabha

and the Lok Sabha and in the State Legislative

Assemblies and State Legislative Councils by holding the bye-elections within a period of 6

months from the date of the occurrence of the

vacancies.

6. Analysing the provisions of Sections 84,

98(c) and 101 of the 1951 Act, the High Court

held that the said sections are enabling in

nature, enabling an election petitioner to claim

a declaration that the election of the returned

candidate is void and for a further declaration

that he or any other candidate had been duly

elected. The High Court recorded the submission

made on behalf of the Commission that if the bye-

election to a constituency is not stayed and if a

candidate who files an election petition

eventually gets such a declaration, and if a bye-

election is held consequent upon a resignation of

a Member, it could result in an impossible

situation. On behalf of the Commission it was

also submitted that the provisions of Sections

150 and 151 of the 1951 Act should be construed

harmoniously. The High Court, however, rejected

the submissions made on behalf of the petitioner

and took the stand that in view of the non-

obstante clause in Section 151A, such harmonious construction was ruled out and that even

otherwise, grant of additional relief of

declaration that the election petitioner had been

elected was not the rule.

7. On the basis of its aforesaid findings the

High Court, despite the decision of this Court in

D. Sanjeevayya Vs. Election Tribunal Andhra

Pradesh and others [AIR 1967 SC 1211 = 1967 (2)

SCR 489], held that the submissions made on

behalf of the Election Commission that the

provisions of Section 151A of the Representation

of the People Act, 1951, should be interpreted

so as not to render Sections 84, 98 and 101

otiose, was unsustainable. It was also held that

a Court should decide a case as per the law as

on the existing date of adjudication. The High

Court, therefore, allowed the writ petition and

directed elections be held in the two

constituencies referred to hereinabove, since in

its view ignoring the provisions of Section 151A

of the 1951 Act would amount to violation of

Article 327 and valid law made by Parliament.

8. Appearing for the Election Commission,

learned Advocate, Ms. Meenakshi Arora

submitted that the approach of the High

Court in the impugned judgment and the

final conclusion reached in this case was

completely contrary to the views

expressed by this Court in D.

Sanjeevayya's case (Supra). Ms. Arora

submitted that the said decision fully

covered the question raised in the

present Election Petition and the High

Court had erred in trying to distinguish

the same on the sole ground that the said

decision had been rendered at a point of

time when Section 151A had not been

introduced into the 1951 Act.

9. Ms. Arora submitted that the issue to be

resolved in this case is the apparent

conflict between the provisions of

Sections 84, 98(c) and 101(b) of the 1951

Act and Section 151A thereof in the light

of Article 190 (3)(b) of the Constitution

of India. It was further submitted that

the question to be answered in this case is whether the directions contained in

Section 151A of the 1951 Act indicating

that notwithstanding anything contained

in Sections 147, 149, 150 and 151

thereof, 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, barring the

two exceptions indicated in the proviso,

are directory in nature or mandatory. The

same has to be considered along with the

provisions of Sections 84, 98(c) and

101(b) of the 1951 Act and Article

190(3)(b) of the Constitution, which

provides that once a Member of a House

resigns from the House of the Legislature

of a State and the same is accepted by

the Speaker, the seat shall become

vacant.

10. Ms. Arora submitted that all these

questions had fallen for consideration in

D. Sanjeevayya's case (supra) and had

been duly answered, though not in the context of Section 151A of the 1951 Act.

The learned counsel urged that the

introduction of Section 151A in the 1951

Act with effect from 1st August, 1996, did

not alter the situation to any great

extent since even after the introduction

of Section 151A, the question still

remains as to what would happen in the

event a declaration prayed for under the

latter part of Section 84, was made by

the Election Commission, in terms of

Section 98(c) and 101(b) of the said Act.

11. Ms. Arora submitted that the decision in

D. Sanjeevayya's case (Supra) was

rendered in relation to the provisions of

Section 150 of the 1951 Act in the

context of both Article 190(3)(b) of the

Constitution and the apparent

contradiction in Sections 84, 98(c) and

101(b) of the 1951 Act and would be

equally applicable to the instant case,

since the same question is involved

regarding the relief contemplated in the latter part of Section 84 of the 1951

Act.

12. Ms. Arora urged that the provisions of

Section 151A, by their very nature made

it clear that the same were directory and

not mandatory in nature. It was urged

that apart from the two exceptions carved

out in the proviso, there was no mention

of Sections 84, 98(c) or even 101(b) in

the amended provisions, which the

Legislature, if it had so intended, could

have also included in the proviso. In

this connection, Ms. Arora referred to a

Division Bench decision of the Karnataka

High Court in Sri Thomas Mates Gudinhjo

vs. Election Commission of India, New

Delhi and Ors. [AIR 2002 Karnataka 232],

wherein R.V.Raveendran, J. (as His

Lordship then was) while delivering the

judgment for the Bench, took note of the

decision of this Court in D.

Sanjeevayya's case (supra) and held as

follows:

"Section 151A no doubt seeks to ensure that no Constituency remains unrepresented for more than six months. But it is not unconditional. It is subject to two exceptions i.e. where the remainder of the term of a member in relation to a vacancy is less than one year or where the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period. Further the Non obstante clause is limited in its application to Sections 147, 149, 150 and 151. The non obstante clause does not refer to Section 84 or 98 (c ) or 101. It therefore follows that Section 151A will have no application if an Election Petition is pending where the prayer is not merely a challenge to the election of the elected candidate, but also seeks a declaration that the petitioner or some one else should be declared as having been elected under Sections 84 read with Section 101 of the Act."

13. Ms. Arora submitted that the judgment and

order of the Andhra Pradesh High Court

was not sustainable and was liable to be

set aside.

14. Learned Additional Solicitor General

(ASG), Ms. Indira Jaisingh, while

reiterating Ms. Arora's submissions on

the relevant provisions of the 1951 Act

and the Constitution of India, contended

that as would be evident from Sections

112 and 116 of the 1951 Act, election

petitions are filed and adjudicated not

merely in the private interest of the contesting candidates, but also in public

interest to ensure that corrupt practices

are eliminated and the constituency is

represented by the candidate lawfully

elected. The learned ASG submitted that

it is for such reason that elections were

not notified in two of the twelve

vacancies caused by the resignation of

twelve legislators, as election petitions

under Section 84 of the 1951 Act were

pending in respect thereof. The learned

ASG further submitted that the Court was

required to consider whether the Election

Commission was under any compulsion to

hold bye-elections in the constituencies

in respect whereof election petitions had

been filed and were pending, having

regard to the provisions of Section 151A

of the 1951 Act.

15. It was then reiterated that according to

the rules of interpretation, an attempt

should be made to harmonize apparently

conflicting provisions within the same

enactment instead of declaring one of the contradicting provisions to be ultra

vires. The learned ASG urged that

although there appears to be an apparent

conflict between Article 190(3)(b) of the

Constitution and Section 151A of the 1951

Act on the one hand and Sections 84,

98(c) and 101(b) of the said Act on the

other, the said provisions were capable

of being harmonized in a manner so that

such apparent conflict stood resolved.

16. It was further contended that Sections

8A, 80A, 84, 98, 99 and 101 of the 1951

Act are intended to serve a public

purpose, namely, the eradication of

corrupt practice and to ensure that the

candidate declared elected had indeed

been lawfully elected and that is why an

election petition does not abate on the

death of the sole petitioner. The

learned ASG urged that both the above-

mentioned provisions of the 1951 Act and

the provisions of Section 151A thereof

are intended to serve the public

interest. While a time limit has been introduced in Section 151A for conducting

bye-elections to maintain a duly elected

Legislative Assembly, the public interest

is also served by ensuring the purity of

the election process. It was also urged

that the various provisions would have to

be harmonized so as to apply the

provisions of Section 151A to all bye-

elections, except to those in respect of

which exceptions had been carved out in

the proviso and also in relation to

constituencies where election petitions

were pending.

17. Yet another facet of the learned ASG's

submissions was in regard to the powers

vested in the High Courts under Section

80A of the 1951 Act. It was submitted

that such power could not be taken away

by implication and the election petition

would have to be allowed to reach its

logical conclusion. The learned ASG

relied primarily on the decision in D.

Sanjeevayya's case (supra) and the decision of the Karnataka High Court in

Sri Thomas Mates Gudinhjo's case (supra),

which had been rendered after the

introduction of Section 151A, following

the ratio in D. Sanjeevayya's case.

18. On the question of harmonious

construction, the learned ASG also relied

on the decisions of this Court in (i)

Shri Venkataramana Devaru vs. State of

Mysore [AIR 1958 SC 255]; (ii) Reserve

Bank of India vs. Peerless General

Finance and Investment Co. Ltd. & Ors.

[(1987) 1 SCC 424]; (iii) O.P. Singla &

Anr. vs. Union of India & Ors. [(1984) 4

SCC 450]; (iv) Krishan Kumar vs. State of

Rajasthan & Ors. [(1991) 4 SCC 258]; (v)

Sultana Begum vs. Prem Chand Jain [(1997)

1 SCC 373]; etc., where it has been

uniformly stated that where there appears

to be an inconsistency between two

provisions in the same statute, the

enactment has to be read as a whole and

the conflicting provisions have to be so

construed so as to avoid a clash as far as possible. The said principle has been

very lucidly explained in Sultana Begum's

case (supra), paragraph 10 whereof is

extracted hereinbelow :

"10. The rule of interpretation requires that while interpreting two inconsistent, or, obviously repugnant provisions of an Act, the Courts should make an effort to so interpret the provisions as to harmonize them so that the purpose of the Act may be given effect to and both the provisions may be allowed to operate without rendering either of them otiose."

19. With regard to the non-obstante clause

in Section 151A of the 1951 Act, the learned ASG

placing reliance on the decision of this Court in

Central Bank of India vs. State of Kerala & Ors.

[(2009) 4 SCC 94], submitted that since Section

151A does not refer to Sections 84, 98, 99 and

101, its provisions could not override the

provisions of the said Sections which would have

to be given their full flow. The learned ASG

submitted that it was for the Court to maintain

the balance between two public interests by

restricting the application of Section 151 A to

only those vacancies which were available for

being filled up, including such vacancies where

no election petition was pending.

20. Mr. D. Ramakrishna Reddy, learned Senior

Advocate appearing for the Respondent No.1, on

the other hand contended with reference to the

decision in D. Sanjeevayya's case (supra), that

when a vacancy is declared in the Legislative

Assembly by the Speaker under Article 190(3)(b)

of the Constitution, the election petition could

not and did not survive as the Speaker's decision

was final. Learned counsel submitted that the

aforesaid decision had been rendered in the

context of Section 150 of the 1951 Act where no

time limit had been fixed and where Section 151A

was yet to find a place in the statute book and

could not be relied on for the purpose of this

case as had been held by the High Court in its

impugned judgment. Mr. Reddy, while referring to

the decision of this Court in Loknath Pradhan vs.

Birendra Kumar Sahu [AIR 1974 SC 505], laid

particular emphasis on another decision of this

Court in Jyoti Basu & Ors. vs. Debi Ghosal & Ors.

[(1982) 1 SCC 691], wherein it was held that

though the right to elect was fundamental to

democracy it was a statutory right which would

have to be construed strictly according to the statute. Mr. Reddy submitted that with the

introduction of Section 151A in the 1951 Act with

effect from 1st August, 1996, it was the clear

intention of the legislature to wipe out the

effects of D. Sanjeevayya's case where the

decision had been rendered in the light of the

provisions of Section 150 of the said Act where

no time limit had been provided for filling up

casual vacancies.

21. Mr. Reddy lastly referred to and relied on

the decision rendered by this Court in Consumer

Education and Research Society vs. Union of India

& Ors. [(2009) 9 SCC 648]. He drew our attention

to paragraph 61 of the judgment in which in the

context of Sections 147 and 149 of the 1951 Act

it was observed that the said provisions dealt

with casual vacancies in the House of the People

on account of the seat of a Member becoming

vacant or being declared vacant or his election

being declared void. In such context it was

further observed that Section 151A provides that

when such casual vacancy arises, the Election

Commission has to fill up the vacancy by holding bye-elections within six months from the date of

occurrence of the vacancy.

22. The rival contentions on the issue under

consideration have been occasioned by the

introduction of Section 151A in Part IX of the

Representation of the People Act, 1951, with

effect from 1st August, 1996. Part IX of the

said Act which deals exclusively with Bye-

elections contains Section 147 and Sections 149

to 151 which deal with casual vacancies in the

Council of States (Rajya Sabha), the House of the

People (Lok Sabha), the State Legislative

Assemblies and the State Legislative Councils.

Prior to the introduction of Section 151A in the

1951 Act, no time limit had been set for filling

up the casual vacancies contemplated in the

different elected bodies, either under Section

147 or Section 149 to 151. Section 151A was

introduced in the 1951 Act to address the lacuna

and to make provisions for holding of bye-

elections for filling any vacancy referred to in

Sections 147 and 149 to 151 within a period of

six months from the date of occurrence of the

vacancy, barring the two exceptions carved out in the proviso to Section 151A itself. What is of

vital importance in this case is the choice of

the words "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 occurrence of the vacancy". The question is

when does such vacancy occur. Is it on the date

on which the resignation is made to the Speaker

of the House or is it from the date when the

vacancy becomes available for being filled up?

This is the same question which fell for decision

in D. Sanjeevayya's case (supra), though Section

151A of the 1951 Act was not available at that

time and the decision was rendered in the context

of Article 190(3)(b), Sections 84, 98(c), 101(b)

and Section 150 of the 1951 Act.

23. Article 190 of the Constitution falls

under the provisions relating to disqualification

of members of both the Houses of the Legislature

of a State and deals with vacation of seats. We

are concerned with the provisions of Section

190(3)(b) of the Constitution, which read as

under :-

"190. Vacation of seats - (3) If a member of a House of the Legislature of a State -

(a) .................................................................................

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be,

his seat shall thereupon become vacant:

Provided that in the case of any resignation referred to in sub clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation."

24. The key words in the above provision are

that if a Member resigns a seat and such

resignation is accepted by the Speaker or the

Chairman, his seat shall thereupon become vacant

(Emphasis supplied). In such event, it would

result in the creation of a casual vacancy within

the meaning of Part IX relating to bye-elections

which contains Section 147 and Sections 149 to

151A. If such casual vacancy occurs in the State

Legislative Assemblies or the State Legislative

Councils, the provisions of Sections 150 and 151

are attracted, which do not, however, prescribe

any time limit for such vacancy to be filled up

by the Election Commission. Since in the instant case we are concerned with the A.P. State

Legislative Assembly, the provisions of Section

150 are relevant to the facts of the case and are

extracted hereinbelow :-

"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."

25. It is the aforesaid provision of Section

150 which gives rise to the apparent conflict

regarding the duty of the Election Commission to

fill up such vacancies in view of the provisions

of Section 84 which provides as follows :-

"84. Relief that may be claimed by the petitioner - A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."

26. According to the provisions of Section 84,

in addition to claiming a declaration that the

election of all or any of the returned candidates

is void, an election petitioner can claim a

further declaration that he himself or any other

candidate has been duly elected. It is this

question which fell for consideration in D.

Sanjeevayya's case (supra) giving rise to an

apparent conflict between the provisions of

Article 190(3)(b) of the Constitution and Section

84 of the 1951 Act. While Article 190(3)(b)

provides that upon resignation of a seat by an

elected member, if accepted, creates a vacancy,

which, in turn, attracts the provisions of Part

IX, a different note is struck by the latter part

of Section 84 which cannot be lost sight of. In

D.Sanjeevayya's case (supra) although the

provisions of Section 151A were not available,

this Court felt that there was no finality in the

vacancy caused by the resignation of a member of

the House where an election petition was pending. If the election of the member who resigns is

unchallenged, there is no difficulty in

harmonizing the provisions of Section 151A with

the rest of the Sections included in Part IX and

Section 8A of the 1951 Act. It is only when an

election petition is filed under Section 84 of

the Act that the latter part of the Section comes

into play and is, thereafter, reflected in

Sections 98(c) and 101(b) of the said Act.

27. In D. Sanjeevayya's case (supra), this

Court while considering the apparent conflict

between Article 190(3)(b) of the Constitution and

Sections 150, 84 and 98 of the 1951 Act, came to

the conclusion that it was not permissible 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. Their

Lordships further observed that a returned

candidate could not get rid of an election

petition filed against him merely by resigning

his seat from the legislature, whatever be the

reason for his resignation. Although not stated

in the judgment, the ramifications of an order under Section 84 are felt in Section 8A dealing

with disqualification on the grounds of corrupt

practices. Such an eventuality cannot be avoided

by the returned member simply by resigning his

seat in the Legislative Assembly and the

provisions of Section 150 would, therefore, have

to be read in conjunction with Section 84.

Their Lordships, therefore, ultimately held that

in such cases the Election Commission was not

bound under Section 150 of the Act to hold a bye-

election forthwith, but it was entitled to

suspend taking action under the said section till

the decision in the election petition under

Section 84 was known.

28. In its impugned judgment the High Court

dealt with the decision of this Court in D.

Sanjeevayya's case (supra) in the following terms

:

"Sanjeevayya ratio is of no help to ignore the enacted provision nor ECI can call back on exercising power under Article 324 of Constitution. Therefore, pendency of election petition and the uncertainty of consequences there from are neither a reason nor rationale to ignore Section 151A and classify casual vacancies into `clear vacancies' and `not clear vacancies'. Article 190(3)(b) of the Constitution does not admit such differentiation. Insofar as bye- elections are concerned, when once a declaration is made under Section 150 of RP Act by the Speaker - a vacancy that arises as contemplated under Constitution and/or the relevant statute; Section 151A comes into play and the bye- elections to the casual vacancies that arises under Sections 147, 149, 150 and 151 shall have to be conducted by ECI within the period mandated by the Parliament.

Sanjeevayya was a case where a member's election was impeached before the Election Tribunal. During its pendency, the successful candidate submitted resignation and invoked public law remedy before this Court. He unsuccessfully sought mandamus to ECI to hold election as per Section 150 of RP Act. The pendency of election petition and Sections 86, 98(C) and 150 of RP Act (without any time limit for conduct of bye- election) became all important statutory facts for construction of the provisions. The Supreme Court considered that, "no time limit is fixed in the Section for the Election Commission to call upon Assembly Constituency concerned to elect a person for filling the vacancy", that, Section does not say that "the Election Commission shall hold a bye-election "forthwith"

or "immediately"" and that in the facts of that case, Election Commission is not bound under Section 150 of RP Act to hold bye-election forthwith (see paras 5 and 6 of AIR). Needless to mention that the case involved construction of Section 150 in the context of Sections 84 and 98(C) of RP Act at the time when Section 151A was not in RP Act.

There was some debate before us that Act 21 of 1996 which inserted Section 151A not being a piece of legislative invalidation (or validation), Sanjeevayya covers the lis. We are afraid we cannot accept the submission. It is well settled that the construction of provision by the Court before such provision is amended or substituted is an exercise of interpretation of the law as existed and does not and should not be treated as covering the situation after express enactment amending the provisions of Law so construed earlier."

29. In order to justify its departure from the

decision of this Court in D. Sanjeevayya's case

(supra), the Division Bench of the High Court

instead relied on the decision of this Court in

Baliram Waman Hiray vs. Justice B. Lentin & Ors.

[(1988) 4 SCC 419], wherein, the decision in

Lalji Haridas vs. State of Maharashtra [AIR 1964

SC 1154], which was a decision in relation to the

proceedings taken by the Income Tax Officer

under Section 37(4) of the Income Tax Act, 1922,

was relied upon. The question involved therein

was that the said proceedings before the Income

Tax Officer were judicial proceedings within the

meaning of Section 193 of the Indian Penal Code. For the purposes of Section 195(1)(b) of the

Code, reliance was also placed on the decision of

this Court in Indira Nehru Gandhi vs. Shri Raj

Narain & Anr. [1975 Supp. SCC 1] and Kanwar Lal

vs. Amar Nath Chawla & Ors. [(1975) 3 SCC 646],

regarding the changes in the law effected by the

amendments which were held to repel the

submissions made therein on behalf of the

Respondent that the expenses incurred by a political party could be identified with the

election of a candidate and that such expenditure

was to be added to the election expenses of a

candidate as being authorized by him. This Court

instead held that expenses incurred or authorized

in connection with the election of a candidate by

a political party would not be deemed to be and

would not ever be deemed to have been expenditure

in connection with the election incurred or

authorized by the candidate. The High court

observed that legislative changes were relevant

in considering the binding nature of the

precedent of the Court on record and that such a

precedent may cease to be an authority in view of

the subsequent changes made by competent

legislature. On the basis of such conclusions,

the High Court held that even if the statement of

objects and reasons of the amending Act did not

specifically refer to Sanjeevayya, the new legal

regime alone must be looked into by the Court.

30. In its impugned judgment the Division

Bench of the High Court also held that the

submission made on behalf of the counsel for the

Election Commission that Sections 150 and 151 of the 1951 Act should be harmoniously construed,

was ruled out in view of the non-obnstante clause

in Section 151A.

31. We are afraid that we are unable to agree

with the reasoning of the Division Bench of the

High Court in its attempt to distinguish the

decision of this Court in D. Sanjeevayya's case

(supra) on the basis that the subsequent

inclusion of Section 151A in the 1951 Act

nullified the ratio of the decision in

D.Sanjeevayya's case (supra) and that in view of

Section 151A, the provisions of Section 84 or

98(c) or 101(b) became redundant upon a seat

being declared vacant by the Speaker of the House

under Article 190(3)(b) of the Constitution of

India.

32. The decision in Sanjeevayya's case (supra)

involved the causation of a casual vacancy on

account of resignation by the elected candidate

while an election petition under Section 84 of

the Act was pending. The effect of Article

190(3)(b) of the Constitution was considered in

the facts of the said case and it was held that the vacancy caused by the decision of the Speaker

did not become a vacancy available for being

filled up and/or capable of being filled up

(Emphasis supplied) till a declaration was either

made or refused under the latter part of Section

84. Notwithstanding the intervention of Section

151A by way of amendment with effect from 1st

August, 1996, the position remains the same. The

only effect on account of such declaration under

Section 190(3)(b)is that a time limit was fixed

for holding bye-elections in respect of casual

vacancies. The all important question is whether

a vacancy caused on account of any of the

contingencies contemplated in Sections 147 and

149 to 151 can be said to be an available vacancy

for the purposes of Section 151A of the 1951 Act.

It is significant that in Section 151A neither

Section 84 nor Sections 98(c) and 101(b) have

been mentioned. Instead, what is referred to are

the casual vacancies referred to in Sections 147

and 149 to 150 in the State Legislative Assembly

and the State Legislative Council. What had not

been indicated in the said provisions were

provided in Section 151A with the two exceptions carved out in the proviso. Section 151A

prescribed a time limit within which a bye-

election is to be held to fill up any vacancy

referred to in Sections 147 and 149 to 151 of the

1951 Act. The Division Bench of the High Court

was, therefore, clearly wrong in coming to a

finding that the non-obstante clause of Section

151A, which was not available, when the decision

in D.Sanjeevayya's case (supra) was rendered,

altered the whole legal scenario and rendered the

decision in D.Sanjeevayya's case (supra) to be no

longer good law as declared by this Court. Although, an attempt has been made to

differentiate between the facts of

D.Sanjeevayya's case (supra) and this case, we

are unable to accept the interpretation of

Section 151A in support of such contention. Any

other interpretation of Section 151A would render

the provisions of Sections 84, 98(c), 101(b) and

8A of the 1951 Act otiose, which could not have

been the intention of the Legislature, which

would otherwise have clearly indicated as such in

the proviso to Section 151A.

33. At this stage, it would be apposite to

consider another aspect of the matter regarding

the meaning of the expression "vacancy" for the

purpose of Part IX of the aforesaid Act. In this

behalf we are inclined to agree with the decision

rendered in D.Sanjeevayya's (supra) case and the

submissions of the learned Additional Solicitor

General that in order to be filled up in a bye-

election, a vacancy must be available for being

filled up. In a situation such as that

contemplated by the latter half of Section 84 and

its consequences as reflected in Sections 98(c),

101(b) and 8A of the 1951 Act, it cannot be said

that a vacancy in such a situation would be a

vacancy available for being filled up by a bye-

election, particularly in a situation where

allegations of corrupt practices have been made

which, if proved, provides for disqualification

under Section 8A of he said Act. Simply by

submitting his resignation, a successful

candidate against whom allegations of corrupt

practices are made, cannot escape the

consequences of Section 8A of the Act, if the

same are ultimately found to be proved.

34. The various decisions cited do not appear

to have any relevance as far as the facts of this

case are concerned. The object with which the

1951 Act was enacted is reflected in the Preamble

which reads as follows :-

"The Act to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of the legislature of each State, the qualifications and disqualifications, the membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections."

The Act is a complete Code for the conduct of

elections by the Election Commission of India

appointed under Article 324 of the Constitution

which provides for superintendence, direction,

control and conduct of elections to Parliament

and to the legislature of every State and also of

elections to the offices of President and Vice-

President held under the Constitution. The

provisions of Article 190(3)(b) of the

Constitution have, therefore, to be read along

with the provisions of the 1951 Act. Section 84

of the said Act cannot be rendered otiose by

holding that all vacancies on account of the aforesaid provision of the Constitution become

immediately available for being filled up by way

of a bye-election. The same reasoning applies in

regard to Section 151A of the 1951 Act and its

impact on the latter part of Section 84 thereof.

As has been mentioned hereinbefore, a proceeding

under Section 84 has to run its full course,

particularly for the purposes of Section 8A of

the said Act. The views expressed by the

Division Bench of the High Court on this point

cannot, therefore, be sustained.

35. We are, therefore, of the firm view that

the introduction of Section 151A in the

Constitution did not alter the position as far as

the provisions of Section 84 and consequently

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 151A of the 1951 Act. Article 190(3)(b)

of the Constitution merely indicates that if a Member of a House of a Legislature of 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.

36. The Appeal is, therefore, allowed and the

judgment and order of the High Court is,

accordingly, set aside and the writ petition

filed by the Respondent No.1 herein for a

direction to hold bye-elections for the 28- Vemulawada Assembly Constituency and 29-Sircilla

Assembly Constituency is dismissed. Having

regard to the facts involved, the parties will

bear their own costs.

................................................J. (ALTAMAS KABIR)

................................................J. (A.K. PATNAIK) New Delhi Dated:3.12.2010 38

ITEM NO.1A. COURT NO.2 SECTION XIIA [for judgment]

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

C.A.No......../2010 @Petition(s) for Special Leave to Appeal (Civil) No(s).20590/2010

(From the judgement and order dated 30/06/2010 in WP No. 14443/2010 of The HIGH COURT OF A.P AT HYDERABAD)

ELECTION COMMN.OF INDIA Petitioner(s)

VERSUS

TELANGANA RASTRA SAMITHI & ANR Respondent(s)

For Petitioner(s) Ms. Meenakshi Arora,Adv.

Ms Poli Katakai, Adv.

For Respondent(s) Ms. Sonam Anand, Adv.

Mr. J.Ramachander Rao, Adv.

Mr. P.Venkat Reddy, Adv.

Mr. B.Ramamurthy, Adv.

Mr. Anil Kumar Tandale,Adv.

Hon'ble Mr. Justice Altamas Kabir pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice A.K. Patnaik.

The appeal is allowed in terms of the signed judgment.

After the judgment was delivered, it was brought to the notice of the Court by Ms.Meenakshi Arora, learned counsel, that elections in the two 39 constituencies had already been held on 27th July, 2010. Having regard to the above, let this matter be listed next Wednesday i.e. 8th December, 2010 for further orders.

(Anita Malhotra) (Juginder Kaur) Sr.P.A. Court Master

[Signed Reportable Judgment is placed on the file]