B. SUBHASHAN REDDY, J.

( 1 ) THIS writ petition has been filed by the former Chief Minister of Andhra pradesh, Sri Kotla Vijayabhaskar Reddy, seeking issuance of a Writ of mandamus against the Election Commission - Respondent No. 1 and also making the Chief Electoral Officer of Andhra Pradesh as Respondent No. 2, to immediately notify the date for by-election to Dhone Assembly Constituency- 181 of Kurnool District.

( 2 ) NOTICE before admission was issued, in response to which Mr. C. P. Sarathy, the learned senior Counsel appeared and argued for the 1st respondent, while Mr. E. Dharma Rao, learned Government Pleader appeared for the 2nd respondent and Mr. C. Damodhar Reddy appeared for the 3rd respondent. Mr. C. P. Sarathy after obtaining instructions from the Election commission submits that the Election Commission is ready to hold the Poll, but there is a legal embargo, due to the pendency of Election Petition No. 20 of 1995 before this Court, which was instituted by the 3rd respondent assailing the election of the writ petitioner here in on the ground of adopting corrupt practices and indulging in violence. The said Election Petition is at the state of filing written statement and it is admitted that written statement is yet to be filed. I have gone through the pleadings in the Election Petition and the facts are stated in support of the plea that the writ petitioner herein had indulged in corrupt practices and also violence. But, that is a question of fact to be proved and this Court as Election Tribunal will deal with the said Election Petition. I am not encroaching upon the power of the Election Tribunal. But, I have to dwell on the subject insofar as the embargo plea to notify the Constitutency for by- election is concerned.

( 3 ) IN the election conducted to Dhone Assembly Constituency during the end of 1994, while the writ petitioner herein had secured 67,685 votes, the 3rd respondent had secured 29,590 and the majority of votes secured by the writ petitioner herein over the 3rd respondent was 38,095. Apart from the writ petitioner and the 3rd respondent, three others, namely, (1) Bajari; (2) Eswaraiah;and (3) Sunkanna, had also contested the election. Both, Mr. C. P. Sarathy and Mr. Damodhar Reddy, as also Mr. E. Dharma Rao appearing for the respondents herein submits that even though under Section 150 of the representation of the People Act, 1951,as contended by Mr. K. Venkatramaiah, the Assembly Constituency, whenever falls vacant, has got to be notified for by- election, there is an exception to that rule and the said exception is found in section 84 read with Section 101 (b) of the Representation of the People Act, 1951. Support is taken from the judgment rendered by this Court in d. Sanjeevaiah vs. Election Tribunal, A. P. in which it was held that until Election petition is disposed of, where there is not only a prayer to set aside the election on the ground of corrupt practices, but also a further prayer to declare the petitioner as having been duly elected, Section 150 of the Representation of the people Act, 1951 will notcome into play. The said judgment was also upheld by the Supreme Court in D. Sanjeevaiyya vs. Election Tribunal, A. P. But, the said proposition is distinguishable in view of the judgment of the Constitution bench of the Supreme Court in Konappa Rudrappa Nadgouda vs. Vishwanath reddy to the following effect:". . . . WE are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated,but who is in truth disqualified, could still be treated as valid votes, for the purpose of determining whether a fresh election should be held. When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This isnot to

Click Here to Read the rest of this document