Andhra Pradesh High Court - Amravati
G Krishna vs Andhra Pradesh State Election ... on 28 October, 2021
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No:W.P.No.24798 of 2021
PROCEEDING SHEET
Sl. OFFICE
DATE ORDER
No. NOTE.
1. 28.10.2021 AVSS, J
Tr.to
I.O.folder
Heard Sri V.Nitesh, learned counsel before
corrections,
for the petitioner, Sri S.Vivek if any.
Chandrasekhar, learned Standing Counsel
for the State Election Commission-1st
respondent, Sri B.S.Shivaji, learned
Government Pleader attached to the office
of the learned Advocate General and Sri
N.Ranga Reddy, learned counsel for 4th
respondent.
2. Grievance of the petitioner in the
present Writ Petition is that the
respondent- authorities are contemplating
to hold elections for Ward No.11 of
Proddatur Municipality for filling up the
casual vacancy of Ward Councillor, which
fell vacant due to resignation of one Sri
R.Ramesh, during pendency of Election
O.P. No.2 of 2021 on the file of the Election
Tribunal-cum-Senior Civil Judge,
Proddatur, filed by the petitioner herein,
challenging the election of the said person.
3. Elections to various wards in
Proddatur Municipality, including Ward
No.11, were conducted. In the said
elections, one Sri R.Ramesh got elected as
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Ward Councillor for Ward No.11.
Questioning the said election, petitioner
herein filed Election O.P. No.2 of 2021 on
the file of the Election Tribunal-cum-Senior
Civil Judge, Proddatur, for the following
reliefs:
"(i) Declaring the return and eligibility of the
respondent No.1 to the office of the election
Ward member of 11 of Proddatur Municipal
Council dated 14.03.2021 as null and void;
(ii) declaring the petitioner as successful and
elected member of the election ward No.11
of Proddatur Municipal Council dated
14.3.2021.
(iii) directing the respondents to pay costs of
this petition, and
(iv) grant such other and further relieves as
such the Hon'ble Court deems fit and proper
under the circumstances of the petition in
the interest of justice."
The said Election Petition is pending
before the Tribunal.
4. According to the learned counsel for
the petitioner, the action of the
respondents in proceeding with the process
of holding election to Ward No.11 pending
Election O.P. No.2 of 2021, is contrary to
law laid down by the Hon'ble Apex Court in
the case of D.Sanjeevayya v. Election
Tribunal, Andhra Pradesh and others (AIR
1967 SC 1211). In the said case, the
Hon'ble Apex Court, while considering the
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provisions of the Representation of People
Act, 1951, held as follows:
"Sections 84 of the Act provides 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." Section 98 reads as follows "At the
conclusion of the trial of an election petition the Tribunal
shall make an order-
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned
candidates to be void; or
(c) declaring the election of all or any of the returned
candidates to be void and the petitioner or any other
candidate to have been duly elected;"
It was argued for the appellant that s.150 of the Act
contemplates three contingencies on the happening of any
one of which the Election Commission may call for a bye-
election. The first contingency namely, the seat of a
member becoming vacant arises, when a member resigns
his seat ; the second contingency namely, the seat of a
member being declared vacant, is brought about when a
member absents himself from meetings of the House of the
Legislature for a period of sixty days without the permission
of the House; while the third contingency arises when the
election of a member to the Legislative Assembly is
declared void by an Election Tribunal under s.98 (b) of the
Act at the conclusion of the trial of an election petition. It
was argued for the appellant that the, three contingencies
contemplated by the section are mutually exclusive and
upon the happening of any one of them an obligation is
cast upon the Election Commission to take steps to hold a
bye-election forthwith. In the present case, it was pointed
out that the first contingency has arisen namely, the seat of
a member became vacant upon 'his resignation and it was
manifestly the duty of the Election Commission to take
steps forthwith to hold a bye-election to fill the vacancy
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irrespective of the fact that an election petition was pending
in which the second respondent had asked for a
declaration that the election of the appellant was void and
also for the relief that he himself should be declared to be
duly elected.
We are unable to accept the argument of the appellant as
correct. In our opinion, the provisions of s.150 of the Act
must be interpreted in the context of ss.84 and 98 (c) and
other relevant provisions of 'Part III of the same Act. If the
interpretation contended for by the appellant is accepted as
correct the vacancy must be filled by a bye-election as
soon as a member resigns his seat notwithstanding the
pendency of an election petition challenging his election. If
the candidate who filed the election petition eventually gets
a declaration that the election of the member is void and
that he himself had been duly elected there will be two
candidates representing the same constituency at the
same time, one of them declared to be duly elected at the
General Election and the other declared to have been
elected at the bye-election and an impossible situation
would arise. It cannot be supposed that Parliament
contemplated such a situation while enacting s.150 of the
Act. Parliament could not have intended that the provisions
of Part VI of the Act pertaining to election petitions, should
stand abrogated as soon as a member resigns his seat in
the Legislature. It is a well-settled rule of construction that
the provisions of a statute should be so read as to
harmonise with one another and the provisions of one
section cannot be used to defeat those Of another unless it
is impossible to effect reconciliation between them. The
principle stated in Crawford's Statutory Construction at
page 260 is as follows "Hence the court should, when-it
seeks the legislative intent, construe all of the constituents
parts of the statute together, and seek to ascertain the
legislative intention from the whole act, considering every
provision thereof in the light of the general purpose and
object of the act itself, and endeavouring to make every
part effective, harmonious, and sensible. This means, of
course, that the court should attempt to avoid absurd
consequences in any part of the statute and refuse to
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regard any word, phrase, clause or sentence superfluous,'
unless such a result is clearly unavoidable."
It is therefore not permissible, in the present case, to
interpret s.150 of the Act in isolation without reference to
Part III of the Act which prescribes the machinery for calling
in question the election of a returned candidate. When an
election petition has been referred to a Tribunal by the
Election Commission and the former is seized of the
matter, the petition has, to be disposed of according to law.
The Tribunal has to adjudge at the conclusion of the
proceeding whether the returned candid,,' 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 No. 2 'has prayed for a composite relief
namely, that the election of the appellant should be
declared to be void and that respondent No. 2 should be
declared to be duly elected. In a case of this description the
Election Commission is not bound immediately to call upon
the Assembly constituency to elect a person for the
purpose of filling the vacancy caused by the resignation of
the appellant. It is open to the Election Commission to
await the result of the election petition and thereafter
decide whether a bye-election should be held or not. If the
election petition is ultimately dismissed or if the election is
set aside but no further relief is given, a bye-election would
follow. If,. however, respondent No. 2 who filed the election
petition or any other candidate is declared elected the
provisions of s.150 of the Act cannot operate at all because
there is no vacancy to be filled. In the present case,
therefore, we hold that the Election Commission is not
bound under S.150 of the Act to hold a bye-election
forthwith but may suspend taking action under that section
till the result of the election petition filed by respondent No.
2 is known. This view is also supported by the
circumstance that no time limit is fixed in the section for the
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Election Commission to call upon the Assembly
constituency concerned to elect a person for filling the
vacancy. Nor does the section say that the Election
Commission shall hold a bye- election "forthwith" or
"immediately". It is also conceivable that there may be a
situation in which the Election Commission may not hold a
bye-election at all or may hold the bye-election after a
delay of 2 or 3 months. Take for instance, a case where a
member resigns his seat in the Legislative Assembly of a
State 3 months before a General Election is due to be held.
It cannot be suggested that the Election Commission is
bound under s.150 (1) of the Act to hold a bye-election
forthwith in that vacancy. Take also another instance where
a member of an Assembly of Himachal Pradesh resigns his
seat during winter. It cannot be argued that the Election
Commission is bound to issue a notification for a bye-
election forthwith though the climatic conditions are
unsuitable for holding such a bye- election."
5. On the contrary, strongly resisting the
very maintainability of the Writ Petition, it
is contended by the learned counsel for the
State Election Commission, so also the
learned Government Pleader and Sri
N.Ranga Reddy, learned counsel for 4th
respondent, that the impugned action
cannot be faulted having regard to the
provisions of Section 21 of the Andhra
Pradesh Municipalities Act, 1965, which
obligates filling up of the casual vacancy
within four months.
6. While relying upon the judgment of
the Hon'ble Apex court referred to, supra, it
is contended by the learned counsel for the
petitioner that if the respondent-authorities
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are permitted to fill up the vacancy before
adjudication of the Election O.P., an
anomalous situation would arise, as such,
the petitioner herein is entitled for the relief
sought in the Writ Petition.
7. In the considered opinion of this
Court, these aspects are required to be
considered and examined after filing
counter affidavits by the respondents.
8. For the aforesaid reasons, for a period
of four weeks from today, the respondents
are directed to defer the process of
undertaking election to the casual vacancy
of Ward Councillor for Ward No.11 of
Proddatur Municipality, YSR Kadapa
District, Andhra Pradesh State.
Post after three weeks for filing
counter affidavits.
_________
AVSS, J
DRK
