Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 822

SUPREME COURT OF INDIA
ASHOK BHUSHAN, NAVIN SINHA, JJ.
Nitin Bandopant Salagre – Appellant
Versus
The State Election Commission & Anr. – Respondents
Civil Appeal No. 5855 of 2019 (arising out of SLP (C) No. 15194 of 2019)
With
Geeta Kiran Bhandari - Appellant
Versus
The State Election Commission & Anr. - Respondents
Civil Appeal No. 5857 of 2019 (arising out of SLP (C) No. 15197 of 2019)
With
Sandeep Raju Naik - Appellant
Versus
The State Election Commission & Ors. - Respondents
Civil Appeal No. 5856 of 2019 (arising out of SLP (C) No. 15195 of 2019)
And
Eknath (Shankar) Dnyandeo Hunder - Appellant
Versus
The State Election Commission & Ors. – Respondents
Civil Appeal No. 5858 of 2019 (arising out of SLP (C) No. 15200 of 2019)
Decided on : 05-08-2019

Advocates Appeared:
For the Appellant(s) :Sudhanshu S. Choudhari, Yogesh K., Mahesh Shinde, Advocates
For the Respondent(s):Pramod Dayal, Braj K. Mishra, Vijay Kumar, Dhaval S. Deshpande, R.P. Chhibber, Bharti Tyagi, R.C. Sharma, Ashish Wad, Priti Purandare, Jayashree Wad, Sidharth Mahajan, Sukriti Jaggi, A. Sharma, M/S. J S Wad And Co. Mr. J.K. Tripathi, G.R. Pandey, Awadhesh Chaubey, Advocates

IMPORTANT POINTS
(1) Statutory Scheme does not indicate that by mere filing of an election petition questioning election of returned candidate of ward and seeking declaration in favour of election petitioner shall ipso facto put an embargo in right of State Election Commission to proceed to fill up casual vacancy.
(2) Right in a person who has secured second highest number of votes has been recognised to obviate holding of fresh elections – Statute does not mandate holding of by-elections, i.e., filling up of casual vacancy as soon as casual vacancy arises.

Headnote:(A) Mumbai Municipal Corporation Act, 1888 – Sections 9 and 33 – General elections for electing Councillor for Bombay Municipal Corporation – Invalidation of caste certificate of returned candidate – Statutory Scheme does not indicate that by mere filing of an election petition questioning election of returned candidate of ward and seeking declaration in favour of election petitioner shall ipso facto put an embargo in right of State Election Commission to proceed to fill up casual vacancy – 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)
       (B) Mumbai Municipal Corporation Act, 1888 – Sections 9, 33 and 34 – General elections for electing Councillor for Bombay Municipal Corporation – Invalidation of caste certificate of returned candidate – Disqualification of returned candidates who were initially elected from concerned ward of Municipal Corporation has attained finality giving rise to casual vacancy in office of Councillor – Right to elect, right to be elected and right to dispute an election are statutory rights – When a candidate who can be deemed to be elected is available, fresh election should not be immediately initiated – Outcome of invalidation of caste certificate is same as setting aside their election – 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 – Holding of election is a cumbersome process involving lot of time, involvement of manpower and expenditure. Municipal Corporations under Act, 1888 has been entrusted with large number of powers and jurisdiction and every five years, election for constituting Municipal Corporation is to be undertaken – Right in a person who has secured second highest number of votes has been recognised to obviate holding of fresh elections – Statute does not mandate holding of by-elections, i.e., filling up of casual vacancy as soon as casual vacancy arises – Discretion has been given to Commission for a purpose and object – 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. (Paras 14, 23, 25, 26 and 38)
       (C) Mumbai Municipal Corporation Act, 1888 – Sections 9 and 33 – General elections for electing Councillor for Bombay Municipal Corporation – Invalidation of caste certificate of returned candidate – 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 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 casual vacancy – When an election petition has already been filed challenging lection of returned candidate since before invalidation of his caste certificate in which election petition prayer is also made to declare candidate securing second highest votes as deemed elected, State Election Commission may not call for fresh election without considering such aspect of matter. (Para 36)
       Facts of the case:
       Present is a case where returned candidates have been held to be disqualified on account of invalidation of caste certificate. Disqualification of the returned candidates, who were initially elected from concerned ward of Municipal Corporation has attained finality giving rise to casual vacancy in office of Councillor. Section 9 of the Act, 1888 deals with casual vacancy. Whether filing of election petition or pendency of election petition, where one of prayers is that petitioner be deemed elected from ward in question, has effect of postponing by-elections and State Election Commission is denuded from proceeding with holding by-elections are the questions which need to be answered in these appeals.
       Findings of Court:
       Filing of affidavit having been dispensed with by the High Court in writ petition, there is no affidavit of State Election Commission on record to indicate as to whether State Election Commission has adverted to Section 34 before starting process of holding by-elections to fill up casual vacancy or not. Commission may be asked to take a fresh decision regarding holding of by-elections to fill up casual vacancy in these cases.
       Result : Appeals allowed.

JUDGMENT :

ASHOK BHUSHAN, J.

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 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 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 el

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2019 Supreme(SC) 822

Cases Referred (4)