Nitin Bandopant Salagre vs The State Election Commission & Anr.

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 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 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

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.