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PETITIONER: D.SANJEEVAYYA

       Vs.

RESPONDENT: ELECTION TRIBUNAL ANDHRA PRADESH & ORS.

DATE OF JUDGMENT: 27/01/1967

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. WANCHOO, K.N.

CITATION:  1967 AIR 1211            1967 SCR  (2) 489  CITATOR INFO :  RF         1988 SC1737  (48)

ACT: Representation  of  the  People Act (43 of  1951),  s.  150- Election  petition with a prayer for a declaration that  the petitioner   was  duly  elected--Resignation   by   returned candidate-If Election Commission bound to hold  bye-election forthwith.

HEADNOTE: The  second  respondent filed an election petition  for  the declarations (1)  that the election of the appellant to  the State Legislative Assembly was  void,   and  (2)   that   he himself was duly elected.  While the petition was  pending, the  appellant  was appointed as a Minister in  the  Central Cabinet and was elected as a member of the Rajya Sabha.  He, thereupon  resigned  his  seat  in  the  State   Legislative Assembly and filed a writ petition in the High Court for the issue  of a writ of mandamus to the Election  Commission  of India on the ground that it was incumbent upon the  Election Commission under s. 150 of the Representation of the  People Act,  1951, to take steps forthwith to hold a  bye-electicon for  filling  up the vacancy so caused.   The  petition  was dismissed. In appeal to this Court, HELD  : No case was made out by the appellant for the  issue of  a  writ of mandamus to the Election  Commission  as  the Election Commission is not bound under s. 150 to take  steps to  hold a bye-election immediately after a vacancy  arises. When the second respondent’s election petition was  referred to  the  Tribunal  it had to decide  whether  he  should  be declared to have been duly elected and, the appellant  could not  get  rid  of the petition by  resigning  his  seat  for whatever  reason.  In a case of this description it is  open to the Election Commission to await the result of the  elec- tion petition, for, if the second respondent eventually  got a  declaration that he himself had been duly elected,  there would  be two candidates representing the same  constituency at  the same time, one declared by the Tribunal to  be  duly elected  at the General Election and the other  declared  to have been duly elected at the bye-election.  Further, it  is also  conceivable that there may be situations in which  the

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Election  Commission may not hold a bye-election at  all  or may hold it after a delay of 2 or 3 months after the vacancy arises. [493 B, F-H; 494 A-B, E; 495 F]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1 of 1967. Appeal by special leave from the judgment and order dated September 19, 1966 of the Andhra Pradesh High Court in  Writ Petition No. 1253 of 1965. B.Sen, T. Lakshmaiah, M. M. Kshatriya, K. Venkatramaiah, and G. S. Chatterjee, for the appellant. M.K.  Ramamurthi,  Shyamala  Pappu  and  Vineet  Kumar,  for respondent No. 2. R. H. Dhebar and S. S. Javali, for respondent No. 3. 490 The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the  judgment  of  the High Court of  Andhra  Pradesh  dated September 19, 1966 in Writ Petition No. 1253 of 1965. At   the  last  General  Election  to  the  Andhra   Pradesh Legislative Assembly held in   February1962, the  appellant and  the  2nd  respondent P.  RajaratnaRao-were        the, contesting   candidates  for  election  from  the   Kodumuru constituency in Kurnool District.  The result of -the  elec- tion  was announced on February 25, 1962 and  the  appellant was  declared  to have been elected by a majority  of  about 7,000  votes.   The second respondent  thereafter  filed  an election petition (Election Petition No. 180 of 1962)  under s. 81 of the Representation of the People Act, 1951 (Act  43 of  1951), hereinafter called the ’Act’ calling in  question the  election  of the appellant on the ground  that  various corrupt  practices  had been committed at the  election  and claiming a two-fold relief namely, that the election of  the appellant should be declared to be void and that  respondent No. 2 himself should be declared to have been duly  elected. After  the  appellant  had filed a  written  statement,  the Election  Tribunal, Hyderabad framed twenty-two issues,  but the  trial of the election petition could not  be  proceeded with   as   the  appellant   filed   several   interlocutory applications raising various objections and after they  were overruled  by  the Election Tribunal,  the  appellant  filed several  writ  petitions in the Andhra Pradesh  High  Court. During  the pendency of the election petition the  appellant was  appointed  by the President of India  as  Minister  for Labour  & Employment in the Central Cabinet.  Subsequent  to that  appointment the appellant was elected as a  Member  of the Rajya Sabha on March 26, 1964.  Thereupon the  appellant resigned  his seat in the Legislative Assembly on  April  8, 1964 and intimated the same to the Speaker of the  Assembly. On  September 2, 1965 the appellant filed the  present  Writ Petition (Writ Petition No. 1253 of 1965) before the  Andhra Pradesh  High  Court  praying for a writ in  the  nature  of mandamus commanding the Election Commission of India to  act under  s.  150  of  the  Act  and  call  upon  the  Kodumuru constituency to elect a person for the purpose of filling up the vacancy caused by the resignation of the appellant.  The appellant  also  prayed for a writ ’directing  the  Election Commission  to  withdraw election petition No. 180  of  1962 from  the  file of the Election Tribunal, Hyderabad  and  to stay  all further proceedings in the trial of that  election petition pending the disposal of the writ petition’.  In the course  of argument before the High Court the appellant  did not  press  the second prayer for  ’directing  the  Election

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Commission  to withdraw the election petition from the  file of  the Election Tribunal, Hyderabad’.  With regard  to  the first prayer, the High Court held that no case                             491 was  made  out for the issue of a writ of  mandamus  to  the Election  Commission  and  accordingly  dismissed  the  writ petition. On behalf of the appellant the argument was put forward that as   soon  as  the  appellant  resigned  his  seat  in   the Legislative   Assembly   under   Art.   190(3)(b)   of   the Constitution of India there was a duty cast on the Election- Commission to take steps to hold a bye-election for  filling the  vacancy  so  caused under s. 150 of the  Act.   It  was contended that it was incumbent upon the Election Commission to  discharge this duty immediately without waiting for  the result of the election petition filed by respondent No. 2 on April 11, 1962.               Article 190(3) of the Constitution states               "190(3)  If  a  member  of  a  House  of   the               Legislature of a State-               (a)   becomes   subject   to   any   of    the               disqualifications  mentioned in clause (1)  of               article, 191; or               (b)   resigns  his seat by writing  under  his               hand addressed to the Speaker or the Chairman,               as the case may be,               his seat shall thereupon become vacant."               Article 324 (1) of the Constitution provides               "The superintendence, direction and control of               the  preparation of the electoral  rolls  for,               and   the   conduct  of,  all   elections   to               Parliament  and  to the Legislature  of  every               State  and  of  elections to  the  offices  of               President  and Vice-President held under  this               Constitution,  including  the  appointment  of               election tribunals for the decision, of doubts               and  disputes arising out of or in  connection               with  elections  to  Parliament  and  to   the               Legislatures  of States shall be vested  in  a               Commission  (referred to in this  Constitution               as the Election Commission)."               Section 150(i) of the Act states as follows :               "  150. (1) When the seat of a member  elected               to the Legislative Assembly of a State becomes               vacant  or is declared vacant or his  election               to the Legislative Assembly is declared  void,               the Election Commission shall, subject to  the               provisions   of   sub-section   (2),   by    a               notification  in  the official  Gazette,  call               upon  the Assembly constituency  concerned  to               elect a person for the purpose of filling  the               vacancy  so caused before such date as may  be               specified   in  the  notification,   and   the               provisions of this Act and of the rules and               492               orders made thereunder shall apply, as far  as               may  be,  in  relation to the  election  of  a               member to fill such vacancy."               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

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             "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 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  493 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  candi- dates  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 Legis- lature.  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

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             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 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 494 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. 1.50  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  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

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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. The  view that we have expressed as to the scope and  effect of  s. 150 of the Act is borne out by the following  passage from May’s Parliamentary Practice, 17th Edn., pp. 176-177 :               "Where  a  vacancy has occurred prior  to,  or               immediately after, the first meeting of a  new               Parliament, the writ will not be issued  until               the time for presenting election petitions has               expired.   Nor will a writ be issued,  if  the               seat  which  has been vacated  be  claimed  on               behalf of another candidate.               In  December, 1852, several  Members,  against               whose return election petitions were  pending,               accepted office under                                    495               the  Crown.  After much consideration, it  was               agreed  that  where a void election  only  was               alleged,   a   new  writ  should   be   issued               (Southampton and Carlow writs, 29 Dec.  1852);               and again, in 1859 and in 1880, the same  rule               was adopted.               Where  the seat is claimed, it has been  ruled               that  the writ should be withheld until  after               the  trial  of that claim  (Athlone  Election,               1859),   or  until  the  petition   has   been               withdrawn  [Louth  Election  (Mr.   Chichester               Fortescue), 1866].               In  1859, Viscount Bury accepted office  under               the Crown, while a petition against his return               for  Norwich,  on the ground of  bribery,  was               pending;  and, as his seat was not claimed,  a               new writ was issued.  Being again returned,  a               petition  was  presented  against  his  second               election,   claiming  the  seat  for   another               candidate.   The  petition against  the  first               election came on for trial, and the  committee               reported  that the sitting Members, Lord  Bury               and  Mr. Schneider, had been guilty, by  their               agents,  of  bribery  at  that  election.   By               virtue  of that report, Lord Bury,  under  the               Corrupt   Practices  Prevention  Act,   became               incapable of sitting or voting in  Parliament,               or,  in other words, ceased to be a Member  of               the  House;  but  as a  petition  against  his               second  return,  claiming the seat,  was  then               pending,  a  new writ was  not  issued  [Parl.               Deb. (1859) 155, c. 865]." For these- reasons we hold that the High Court was right  in holding that no case was made out for the issue of a writ of mandamus to the Election Commission and this appeal must  be accordingly dismissed with costs:- Appeal dismissed. V.P.S. 496