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Karnataka High Court
Thomas Mates Gudinho - Appellant
Versus
Election Commission of India, New Delhi - Respondent
Decided On : 02-13-02
W.P. : 30393 of 2000
Election Petition - Representation of the People Act, 1951 - Sections 100(1)(b), 101(a), 101(b), 112, 116, 151a - The court discussed the provisions of the Representation of the People Act, 1951, including the grounds for declaring an election void, the procedure for declaring a candidate duly elected, and the time limit for filling vacancies. The court held that the Election Commission is justified in postponing a bye-election when an election petition is pending seeking a declaration that the petitioner or another candidate has been duly elected.
Fact of the Case:
The petitioner sought a writ for holding a bye-election in a constituency following the death of the elected candidate. The Election Commission had postponed the bye-election due to the pendency of an election petition filed by the 4th respondent.
Finding of the Court:
The court found that the Election Commission was justified in postponing the bye-election until the disposal of the election petition, as the petition sought a declaration that the petitioner or another candidate had been duly elected.
Issues: The main issue was whether the Election Commission was justified in postponing the bye-election due to the pendency of the election petition.
Ratio Decidendi: The court relied on the provisions of the Representation of the People Act, 1951, and the decision in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh, to conclude that the Election Commission was justified in postponing the bye-election.
Final Decision: The petition was dismissed, and the court held that the Election Commission was justified in postponing the bye-election until the disposal of the election petition.
( 1 ) THE petitioner is a permanent resident of Karwar City and a voter of No. 172, Karwar Assembly Constituency. In the 1999 elections, results of which were declared on 6-10-1999, one Vasanth Kamalakar Astonikar was declared as having been elected. That has been challenged by the 4th respondent in Election Petition No. 19/1999 pending on the file of this Court. In the said election petition, the 4th respondent has sought the following reliefs : (I) a declaration that the election of V. K. Astonikar to fill seat No. 172-Karwar Assembly Constituency is void under Section 100 (1) (b) of the Representation of the People Act, 1951, for having committed corrupt practice under Section 123 (3) of the said Act. (II) For a declaration that he has been duly elected from the said Constituency under Section 101 (a) of the Act and declare him as having been elected under Section 101 (b) of the Act for having secured more number of valid votes than the said V. K. Astonikar who has been declared as elected on account of the corrupt practice by him.
( 2 ) DURING the pendency of the said petition, the elected candidate namely, V. K. Astonikar was murdered on 19-2-2000. Having regard to the provisions of Sections 112 and 116 of the Representation of the People Act, 1951 ("act", for short) the said election petition did not abate. Further, in spite of the death of the elected candidate, if the 4th respondent herein who has filed the election petition is able to establish that the elected candidate was guilty of a corrupt practice, and further establish that but for the vote obtained by the returned candidate by such corrupt candidate, he would have obtained majority of the valid votes, he would be entitled to a declaration that he was duly elected at the said election. It is stated that the evidence has been completed in the said election petition and the matter is at the stage of arguments.
( 3 ) THE petitioner filed this writ petition on 14-9-2000 when no bye-election was held to fill the said sent seat for more than six months. The petitioner contended that having regard to Section 151a of the Act, a bye-election for filling the vacancy caused on account of the elected member having died, shall be held within a period of six months from the date of occurrence of the vacancy and there was no justification for the Election Commission not inviting the constituency to elect a fresh Representative. It is contended that failure to hold the bye-election would result in the citizens of the Constituency not having the benefit of an elected representative representing the Constituency in the Legislative Assembly; and that therefore the interests of the Constituency is adversely affected. According to the petitioner, the matter was taken up by the residents of the area as also by the local Member of Parliament with the Election Commissioner (first respondent); and the first respondent has sent a communication dated 26-7-2000 to the local Member of Parliament, stating that the bye-election cannot be held in view of the pendency of Election Petition No. 19/1999 filed by the 4th respondent with a prayer that he should be declared as elected by quashing the election of V. K. Asnotikar.
( 4 ) FEELING aggrieved, the petitioner has filed this petition for quashing the said communication dated 26-7-2000 and seeking a direction to respondents 1 to 3 to hold an election for the Karwar Assembly Constituency immediately.
( 5 ) PETITIONER contends that the Legislation intent in inserting Section 151a of the Act, by Central Act 21 of 1996 is that no constituency shall remain un-represented for a period of more than six months, in the event of any casual vacancy, and therefore the Election Commission is bound to hold a bye-election, on the death of an elected member, within six months; and pendency of any election petition will not and shall not come in the way of compliance with Sec. 151a. It is submitted that as on date, nearly half of the 5 ye
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