2019 Supreme(Bom) 585

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Sunil B. Shukre, Pushpa V. Ganediwala, JJ.
Sandeep Yashwantrao Sarode – Appellant
Vs.
Election Commission of India, Through Its Chief Election Commissioner and Other Companion Election Commissioner, New Delhi - Respondent
Writ Petition No. 2251 of 2019
Decided On : 12-04-2019

Headnote:

Representation of the People Act, 1951 - Sections 100, 100 (1) (d) (iv ),147, 149, 150 and 151 - Constitution of India,1950 - Articles 226,174,174(1),329(b) - 14 and 21 - Section 151-A of the R.P. Act, 1951 mandates that a bye-election for filling any vacancy referred to in Sections 147, 149, 150 and 151, must be held within a period of six months from the date of occurrence of the vacancy and it is so notwithstanding anything contained in any of the provisions of these sections. The petitioner contends that the casual vacancy, which has arisen in the present case, is in terms of Section 150 of the R.P. Act, 1951 and it is with effect from 06.10.2018. He submits that if the period of six months is to be calculated from 06.10.2018, it would expire on 05.04.2019. He points out that the election is going to be held on 11.04.2019, which is beyond the period of six months, stipulated in Section 151-A of the R.P.Act, 1951 - Secondly, it is the case of the petitioner that the declaration made by the ECI to hold the election on 11.04.2019 is also hit by proviso (a) to Section 151-A of the R.P. Act, 1951. The petitioner submits that the proviso prescribes that Section 151-A would have no application, if the remainder of the term of a member, in relation to a vacancy, is less than one year. According to the petitioner, this would mean that it is not mandatory for the ECI to hold the election to fill the casual vacancy and the power is only discretionary in nature, which must be exercised reasonably. The petitioner submits that this power has not been exercised in a reasonable manner by the ECI and it has failed to take into consideration relevant factors such as; the larger public interest, huge expenditure being incurred for a very short period of time, putting of great stress upon the Governmental manpower and the final achievement of no significance for the electorate and the democratic process. He submits that all these factors are important as the next State General Assembly Elections are due for last week of October or anytime in November-2019. It is the further contention of the petitioner that proviso (b) to Section 151-A of the R.P. Act, 1951, has no application to the present case and, even if it does, it has not been followed by the ECI in its letter and spirit. The petitioner also submits that this declaration is discriminatory - Whether or not there is any violation of mandate of Section 151 of the R.P. Act, 1951 on the part of the ECI, in the present case – Held, we consider the expression, "the remainder of the term of a member in relation to a vacancy", employed in clause (a) of the proviso, what comes forth, in a prominent manner, is the presence of definite and indefinite articles, "the" and "a" respectively. Article "the", conveying the certainty or specificity has been used for indicating the meaning of the word "term" and article "a" having indefinite and uncertain characteristic has been used to denote a person named as, "a member". The article "a" is again used to indicate "vacancy" for filling of which the bye-election could be held. It would mean that while the balance term is definite, a member as well as a vacancy are something which are not yet known or which are still unspecified. The overall meaning of the whole expression, as plainly conveyed by the language used, is that the balance term when reckoned from the date of declaration of the result of bye-poll, would be certain and the "member" contemplated in clause (a) is unspecified and so is a "vacancy", which such unspecified person is going to fill through the bye-election. If this were not so, the legislature would have used the definite article "the" to specify a particular person as the member whose vacancy has arisen owing to his resignation or occurrence of other contingency stipulated in Section 150 of the R.P. Act, 1951. - We must say, however, the manner of determination of the remainder of the term is not the issue to be debated any longer as the issue has been already answered by us. What is required to be considered in this part of the judgment is the rationale of the ECI in taking a decision to not hold bye-election to fill a casual vacancy, if the remainder of the term is less than one year. In the present case also the remaining term is less than one year. But, we find that same decision as has been taken by the ECI in the case of vacancies from the State of Andhra Pradesh has not been taken here. There is thus application of different yardstick by the ECI to vacancies from Andhra Pradesh and of another to a casual vacancy arising form Katol Assembly Constituency. Why is it so? The ECI, however, has not provided any answer to the application of such different standards to vacancies from Andhra Pradesh and vacancy from Katol, both equally situated in terms of the rationale adopted by the ECI. No answer and no reason having been given by the ECI for treating the present casual vacancy differently, we find that the decision taken by the ECI here to fill casual vacancy for a period of about five months is arbitrary, discriminatory and not reasonable. - But there is one principle on which there is complete unanimity of all the courts in the world and this is that where the words or the language used in a statute are clear and cloudless, plain, simple and explicit unclouded and unobscured, intelligible and pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation, there is absolutely no room for deriving support from external aids. In such cases, the statute should be interpreted on the face of the language itself without adding, subtracting or omitting words therefrom – Petition Allowed