REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.         OF 2010 (@Special Leave Petition (Civil) No.20590 of2010)

ELECTION COMMISSION OF INDIA     …APPELLANT  

VERSUS

TELANGANA RASTRA SAMITHI & ANR. … RESPONDENTS

J U D G M E N T

ALTAMAS KABIR,J.

1. Leave granted.

2. The Election Commission of India has filed  

this appeal against the judgment and order dated  

30th June, 2010, passed by the Division Bench of  

the Andhra Pradesh High Court in Writ Petition  

No.14443  of  2010  filed  by  the  Respondent,  

Telangana  Rastra  Samithi,  challenging  the  

decision  of  the  Commission  not  to  hold  bye-

elections  to  28-Vemulawada  and    29-Sircilla  

Assembly Constituencies in the State of Andhra  

Pradesh.  The writ petition involving the holding  

of bye-elections to casual vacancies in the State

Legislative  Assembly,  was  allowed  by  the  High  

Court by its impugned judgment by applying the  

literal rule of interpretation. It was held that  

the  provisions  of  Section  151A  of  the  

Representation  of  the  People  Act,  1951,  

hereinafter referred to as ‘the 1951 Act’, were  

mandatory  and  that  the  pendency  of  election  

petitions  and  the  uncertain  consequences  that  

might follow would not in any manner dilute the  

effect  of  Section  151A,  especially  when  the  

Speaker of the Assembly had already notified the  

vacancies as contemplated under Article 190(3)(b)  

of the Constitution read with Section 150 of the  

aforesaid  Act  and  had  directed  the  Appellant  

herein to hold bye-elections for filling up the  

vacancies  for  the  two  aforesaid  Assembly  

Constituencies along with bye-elections already  

notified for ten other Assembly Constituencies.

3. Briefly stated, the facts indicate that in  

order to press for a separate Telangana State, a  

Joint  Action  Committee  was  formed  with  all  

political parties which took a decision that all  

the members of the Legislative Assembly of the  

respective  political  parties  should  resign.

Consequently,  12  members  submitted  their  

resignations from the membership of the Andhra  

Pradesh State Legislative Assembly to the Speaker  

of  the  Assembly  on  14th February,  2010.   On  

receipt  of  the  said  resignations,  the  Speaker  

ordered that the resultant vacancies be notified.  

The said notification was duly published in the  

Andhra  Pradesh Gazette  (Part II  Extraordinary)  

dated  14.02.2010.   The  Election  Commission  of  

India issued a Press Note dated 21.06.2010 under  

Section  30  of  the  1951  Act,  notifying  its  

decision  to  hold  bye-elections  to  fill  up  10  

clear  vacancies  according  to  the  programme  

indicated  therein.   The  bye-elections  to  28-

Vemulawada  and  29-Sircilla  Assembly  

Constituencies were not notified on account of  

the fact that election petitions were pending in  

which the petitioners had sought to be declared  

elected.   Accordingly,  there  being  10  clear  

vacancies in the State Legislative Assembly of  

Andhra Pradesh, the Commission decided to hold  

bye-elections to fill up the 10 clear vacancies  

as per programme indicated. The decision of the  

Election  Commission  of  India,  hereinafter

referred to as “the Commission”, not to hold bye-

elections in the two aforesaid constituencies was  

challenged  in  the  writ  petition,  which  was  

ultimately allowed.

4. The question raised in the writ petition  

was whether Section 151A read with Sections 84,  

98, 101 and 150 of the 1951 Act, was mandatory or  

only directory.  A question was also raised as to  

whether Section 151A of the above Act is subject  

to  Article  324  of  the  Constitution.   Since  

Section 151A of the 1951 Act is the focal point  

of the case made out by the writ petitioners, the  

same is extracted hereinbelow :

“151A. Time limit for filling vacancies referred  to  in  sections  147,  149,  150  and  151.—  Notwithstanding  anything  contained  in  section  147, section 149, section 150 and section 151, a  bye-election for filling any vacancy referred to  in any of the said sections shall be held within  a  period  of  six  months  from  the  date  of  the  occurrence of the vacancy:

Provided that nothing contained in this section  shall apply if—

(a) the remainder of the term of a member in  relation to a vacancy is less than one year; or

(b) the Election Commission in consultation with  the  Central  Government  certifies  that  it  is  difficult to hold the bye election within the  said period.

5. The High Court took the view that Sections  

147, 148, 149, 150, 151 and 151A of the 1951 Act  

appear in Part IX which deals with bye-elections.  

Part V of the aforesaid Act, which deals with the  

conduct of general elections and Part III, do not  

prescribe any time limit obliging the Commission  

to conduct elections within a period of 6 months  

after  expiry  of  the  term  of  the  Assembly.  

Section  15  of  the  Act  provides  that  general  

elections  shall  be  held  for  the  purpose  of  

constituting a new legislative assembly on the  

expiration  of  the  duration  of  the  existing  

Legislative Assembly or on its dissolution.  The  

proviso thereto prohibits a general election at  

any time before six months prior to expiry of the  

term of the Assembly.  Such prohibition, however,  

does not apply to a case where the Legislative  

Assembly  is  dissolved.   Interpreting  the  

provisions of Section 151A of the 1951 Act, the  

High Court observed that it is the only provision  

in the said Act which prescribes a time limit for  

filling casual vacancies both in the Rajya Sabha  

and the Lok Sabha and in the State Legislative  

Assemblies  and  State  Legislative  Councils  by

holding the bye-elections within a period of 6  

months from the date of the occurrence of the  

vacancies.   

6. Analysing the provisions of Sections 84,  

98(c) and 101 of the 1951 Act, the High Court  

held  that  the  said  sections  are  enabling  in  

nature, enabling an election petitioner to claim  

a declaration that the election of the returned  

candidate is void and for a further declaration  

that  he  or  any  other  candidate  had  been  duly  

elected.  The High Court recorded the submission  

made on behalf of the Commission that if the bye-

election to a constituency is not stayed and if a  

candidate  who  files  an  election  petition  

eventually gets such a declaration, and if a bye-

election is held consequent upon a resignation of  

a  Member,  it  could  result  in  an  impossible  

situation. On behalf of the Commission it was  

also submitted that the provisions of Sections  

150 and 151 of the 1951 Act should be construed  

harmoniously.  The High Court, however, rejected  

the submissions made on behalf of the petitioner  

and  took  the  stand  that  in  view  of  the  non-

obstante clause in Section 151A, such harmonious

construction  was  ruled  out  and  that  even  

otherwise,  grant  of  additional  relief  of  

declaration that the election petitioner had been  

elected was not the rule.   

7. On the basis of its aforesaid findings the  

High Court, despite the decision of this Court in  

D.  Sanjeevayya Vs.  Election  Tribunal  Andhra  

Pradesh and others [AIR 1967 SC 1211 = 1967 (2)  

SCR  489],   held  that  the  submissions  made  on  

behalf  of  the  Election  Commission  that  the  

provisions of Section 151A of the Representation  

of the People Act, 1951,  should be interpreted  

so  as  not  to  render  Sections  84,  98  and  101  

otiose, was unsustainable.  It was also held that  

a Court should decide  a case as per the law as  

on the existing date of adjudication.  The High  

Court, therefore, allowed the writ petition and  

directed  elections  be  held  in  the  two  

constituencies referred to hereinabove, since in  

its view ignoring the provisions of Section 151A  

of  the  1951  Act  would  amount  to  violation  of  

Article 327 and valid law made by Parliament.

8. Appearing  for  the  Election  Commission,  

learned  Advocate,  Ms.  Meenakshi  Arora  

submitted that the approach of the High  

Court in the impugned judgment and the  

final conclusion reached in this case was  

completely  contrary  to  the  views  

expressed  by  this  Court  in  D.  

Sanjeevayya’s  case  (Supra).   Ms.  Arora  

submitted  that  the  said  decision  fully  

covered  the  question  raised  in  the  

present  Election  Petition  and  the  High  

Court had erred in trying to distinguish  

the same on the sole ground that the said  

decision had been rendered at a point of  

time  when  Section  151A  had  not  been  

introduced into the 1951 Act.

9. Ms. Arora submitted that the issue to be  

resolved  in  this  case  is  the  apparent  

conflict  between  the  provisions  of  

Sections 84, 98(c) and 101(b) of the 1951  

Act and Section 151A thereof in the light  

of Article 190 (3)(b) of the Constitution  

of India. It was further submitted that  

the question to be answered in this case

is  whether  the  directions  contained  in  

Section 151A of the 1951 Act indicating  

that  notwithstanding  anything  contained  

in  Sections  147,  149,  150  and  151  

thereof, a bye-election for filling any  

vacancy referred to in any of the said  

sections shall be held within a period of  

six  months  from  the  date  of  the  

occurrence  of  the  vacancy,  barring  the  

two exceptions indicated in the proviso,  

are directory in nature or mandatory. The  

same has to be considered along with the  

provisions  of  Sections  84,  98(c)  and  

101(b)  of  the  1951  Act  and  Article  

190(3)(b)  of  the  Constitution,  which  

provides that once a Member of a House  

resigns from the House of the Legislature  

of a State and the same is accepted by  

the  Speaker,  the  seat  shall  become  

vacant.

10. Ms.  Arora  submitted  that  all  these  

questions had fallen for consideration in  

D.  Sanjeevayya’s  case  (supra)  and  had  

been  duly  answered,  though  not  in  the

context of Section 151A of the 1951 Act.  

The  learned  counsel  urged  that  the  

introduction of Section 151A in the 1951  

Act with effect from 1st August, 1996, did  

not  alter  the  situation  to  any  great  

extent since even after the introduction  

of  Section  151A,  the  question  still  

remains as to what would happen in the  

event a declaration prayed for under the  

latter part of Section 84, was made by  

the  Election  Commission,  in  terms  of  

Section 98(c) and 101(b) of the said Act.

11. Ms. Arora submitted that the decision in  

D.  Sanjeevayya’s  case  (Supra)  was  

rendered in relation to the provisions of  

Section  150  of  the  1951  Act  in  the  

context of both Article 190(3)(b) of the  

Constitution  and  the  apparent  

contradiction in Sections 84, 98(c) and  

101(b)  of  the  1951  Act  and  would  be  

equally applicable to the instant case,  

since  the  same  question  is  involved  

regarding the relief contemplated in the

latter  part  of  Section  84  of  the  1951  

Act.

12. Ms. Arora urged that the provisions of  

Section 151A, by their very nature made  

it clear that the same were directory and  

not  mandatory  in  nature.  It  was  urged  

that apart from the two exceptions carved  

out in the proviso, there was no mention  

of Sections 84, 98(c) or even 101(b) in  

the  amended  provisions,  which  the  

Legislature, if it had so intended, could  

have also included in the proviso.  In  

this connection, Ms. Arora referred to a  

Division Bench decision of the Karnataka  

High Court in  Sri Thomas Mates Gudinhjo  

vs.  Election  Commission  of  India,  New  

Delhi and Ors. [AIR 2002 Karnataka 232],  

wherein  R.V.Raveendran,  J.  (as  His  

Lordship then was) while delivering the  

judgment for the Bench, took note of the  

decision  of  this  Court  in  D.  

Sanjeevayya’s  case  (supra)  and  held  as  

follows:

“Section 151A no doubt seeks to ensure that no  Constituency remains unrepresented for more than  six months. But it is not unconditional. It is  subject  to  two  exceptions  i.e.  where  the  remainder of the term of a member in relation to  a vacancy is less than one year or where the  Election  Commission  in  consultation  with  the  Central  Government   certifies  that  it  is  difficult  to  hold  the  bye-election  within  the  said period.  Further the Non obstante clause is  limited in its application to Sections 147, 149,  150 and 151. The non obstante clause does not  refer  to  Section  84  or  98  (c  )  or  101.  It  therefore follows that Section 151A will have no  application if an Election Petition is pending  where the prayer is not merely a challenge to the  election of the elected candidate, but also seeks  a declaration that the petitioner or some one  else should be declared as having been elected  under Sections 84 read with Section 101 of the  Act.”  

13. Ms. Arora submitted that the judgment and  

order of the Andhra Pradesh High Court  

was not sustainable and was liable to be  

set aside.

14. Learned  Additional  Solicitor  General  

(ASG),  Ms.  Indira  Jaisingh,  while  

reiterating  Ms.  Arora’s  submissions  on  

the relevant provisions of the 1951 Act  

and the Constitution of India, contended  

that as would be evident from Sections  

112  and  116  of  the  1951  Act,  election  

petitions are filed and adjudicated not  

merely  in  the  private  interest  of  the

contesting candidates, but also in public  

interest to ensure that corrupt practices  

are  eliminated  and  the  constituency  is  

represented  by  the  candidate  lawfully  

elected.   The learned ASG submitted that  

it is for such reason that elections were  

not  notified  in  two  of  the  twelve  

vacancies  caused  by  the  resignation  of  

twelve legislators, as election petitions  

under  Section  84  of  the  1951  Act  were  

pending in respect thereof.  The learned  

ASG further submitted that the Court was  

required to consider whether the Election  

Commission  was  under  any  compulsion  to  

hold bye-elections in the constituencies  

in respect whereof election petitions had  

been  filed  and  were  pending,  having  

regard to the provisions of Section 151A  

of the 1951 Act.    

15. It was then reiterated that according to  

the rules of interpretation, an attempt  

should  be  made  to  harmonize  apparently  

conflicting  provisions  within  the  same  

enactment instead of declaring one of the

contradicting  provisions  to  be  ultra  

vires.   The  learned  ASG  urged  that  

although there appears to be an apparent  

conflict between Article 190(3)(b) of the  

Constitution and Section 151A of the 1951  

Act  on  the  one  hand  and  Sections  84,  

98(c) and 101(b) of the said Act on the  

other, the said provisions were capable  

of being harmonized in a manner so that  

such apparent conflict stood resolved.   

16. It  was  further  contended  that  Sections  

8A, 80A, 84, 98, 99 and 101 of the 1951  

Act  are  intended  to  serve  a  public  

purpose,  namely,  the  eradication  of  

corrupt practice and to ensure that the  

candidate  declared  elected  had  indeed  

been lawfully elected and that is why an  

election petition does not abate on the  

death  of  the  sole  petitioner.   The  

learned ASG urged that both the above-

mentioned provisions of the 1951 Act and  

the  provisions  of  Section  151A  thereof  

are  intended  to  serve  the  public  

interest.  While a time limit has been

introduced in Section 151A for conducting  

bye-elections to maintain a duly elected  

Legislative Assembly, the public interest  

is also served by ensuring the purity of  

the election process.  It was also urged  

that the various provisions would have to  

be  harmonized  so  as  to  apply  the  

provisions of Section 151A to all bye-

elections, except to those in respect of  

which exceptions had been carved out in  

the  proviso  and  also  in  relation  to  

constituencies  where  election  petitions  

were pending.

17. Yet another facet of the learned ASG’s  

submissions was in regard to the powers  

vested in the High Courts under Section  

80A of the 1951 Act.  It was submitted  

that such power could not be taken away  

by implication and the election petition  

would  have  to  be  allowed  to  reach  its  

logical  conclusion.   The  learned  ASG  

relied primarily on the decision in  D.  

Sanjeevayya’s  case  (supra)  and  the

decision of the Karnataka High Court in  

Sri Thomas Mates Gudinhjo’s case (supra),  

which  had  been  rendered  after  the  

introduction  of  Section  151A,  following  

the ratio in D. Sanjeevayya’s case.

18. On  the  question  of  harmonious  

construction, the learned ASG also relied  

on  the  decisions  of  this  Court  in  (i)  

Shri  Venkataramana  Devaru vs.  State  of  

Mysore [AIR 1958 SC 255]; (ii)  Reserve  

Bank  of  India vs.  Peerless  General  

Finance and Investment Co. Ltd. & Ors.  

[(1987) 1 SCC 424]; (iii)  O.P. Singla &  

Anr. vs. Union of India & Ors. [(1984) 4  

SCC 450]; (iv) Krishan Kumar vs. State of  

Rajasthan & Ors. [(1991) 4 SCC 258]; (v)  

Sultana Begum vs. Prem Chand Jain [(1997)  

1  SCC  373];  etc.,  where  it  has  been  

uniformly stated that where there appears  

to  be  an  inconsistency  between  two  

provisions  in  the  same  statute,  the  

enactment has to be read as a whole and  

the conflicting provisions have to be so  

construed so as to avoid a clash as far

as possible.  The said principle has been  

very lucidly explained in Sultana Begum’s  

case  (supra),  paragraph  10  whereof  is  

extracted hereinbelow :  

“10.  The  rule  of  interpretation  requires  that  while  interpreting  two  inconsistent,  or,  obviously  repugnant  provisions  of  an  Act,  the  Courts should make an effort to so interpret the  provisions  as  to  harmonize  them  so  that  the  purpose of the Act may be given effect to and  both the provisions may be allowed to operate  without rendering either of them otiose.”

19.   With regard to the non-obstante clause  

in Section 151A of the 1951 Act, the learned ASG  

placing reliance on the decision of this Court in  

Central Bank of India vs. State of Kerala & Ors.  

[(2009) 4 SCC 94], submitted that since Section  

151A does not refer to Sections 84, 98, 99 and  

101,  its  provisions  could  not  override  the  

provisions of the said Sections which would have  

to be given their full flow.  The learned ASG  

submitted that it was for the Court to maintain  

the  balance  between  two  public  interests  by  

restricting the application of Section 151 A to  

only  those  vacancies  which  were  available  for  

being filled up, including such vacancies where  

no election petition was pending.  

 20.   Mr. D. Ramakrishna Reddy, learned Senior  

Advocate appearing for the Respondent No.1, on  

the other hand contended with reference to the  

decision in  D. Sanjeevayya’s case (supra), that  

when a vacancy is declared in the Legislative  

Assembly by the Speaker under Article 190(3)(b)  

of the Constitution, the election petition could  

not and did not survive as the Speaker’s decision  

was final.  Learned counsel submitted that the  

aforesaid  decision  had  been  rendered  in  the  

context of Section 150 of the 1951 Act where no  

time limit had been fixed and where Section 151A  

was yet to find a place in the statute book and  

could not be relied on for the purpose of this  

case as had been held by the High Court in its  

impugned judgment.  Mr. Reddy, while referring to  

the decision of this Court in Loknath Pradhan vs.  

Birendra  Kumar  Sahu  [AIR  1974  SC  505],  laid  

particular emphasis on another decision of this  

Court in Jyoti Basu & Ors. vs. Debi Ghosal & Ors.  

[(1982)  1  SCC  691],  wherein  it  was  held  that  

though  the  right  to  elect  was  fundamental  to  

democracy it was a statutory right which would  

have to be construed strictly according to the

statute.   Mr.  Reddy  submitted  that  with  the  

introduction of Section 151A in the 1951 Act with  

effect from 1st August, 1996, it was the clear  

intention  of  the  legislature  to  wipe  out  the  

effects  of  D.  Sanjeevayya’s  case  where  the  

decision had been rendered in the light of the  

provisions of Section 150 of the said Act where  

no time limit had been provided for filling up  

casual vacancies.   

21. Mr. Reddy lastly referred to and relied on  

the decision rendered by this Court in Consumer  

Education and Research Society vs. Union of India  

& Ors. [(2009) 9 SCC 648].  He drew our attention  

to paragraph 61 of the judgment in which in the  

context of Sections 147 and 149 of the 1951 Act  

it was observed that the said provisions dealt  

with casual vacancies in the House of the People  

on  account  of  the  seat  of  a  Member  becoming  

vacant or being declared vacant or his election  

being  declared  void.   In  such  context  it  was  

further observed that Section 151A provides that  

when  such  casual  vacancy  arises,  the  Election  

Commission has to fill up the vacancy by holding

bye-elections within six months from the date of  

occurrence of the vacancy.         

22. The rival contentions on the issue under  

consideration  have  been  occasioned  by  the  

introduction of Section 151A in Part IX of the  

Representation  of  the  People  Act,  1951,  with  

effect from 1st August, 1996.  Part IX of the  

said  Act  which  deals  exclusively  with  Bye-

elections contains Section 147 and Sections 149  

to 151 which deal with casual vacancies in the  

Council of States (Rajya Sabha), the House of the  

People  (Lok  Sabha),  the  State  Legislative  

Assemblies  and the  State Legislative  Councils.  

Prior to the introduction of Section 151A in the  

1951 Act, no time limit had been set for filling  

up  the  casual  vacancies  contemplated  in  the  

different  elected bodies,  either under  Section  

147 or Section 149 to 151.  Section 151A was  

introduced in the 1951 Act to address the lacuna  

and  to  make  provisions  for  holding  of  bye-

elections for filling any vacancy referred to in  

Sections 147 and 149 to 151 within a period of  

six months from the date of occurrence of the  

vacancy, barring the two exceptions carved out in

the proviso to Section 151A itself.  What is of  

vital importance in this case is the choice of  

the words “a bye-election for filling any vacancy  

referred to in any of the said sections shall be  

held within a period of six months from the date  

of occurrence of the vacancy”.  The question is  

when does such vacancy occur.  Is it on the date  

on which the resignation is made to the Speaker  

of the House or is it from the date when the  

vacancy becomes available for being filled up?  

This is the same question which fell for decision  

in D. Sanjeevayya’s case (supra), though Section  

151A of the 1951 Act was not available at that  

time and the decision was rendered in the context  

of Article 190(3)(b), Sections 84, 98(c), 101(b)  

and Section 150 of the 1951 Act.  

23. Article  190  of  the  Constitution  falls  

under the provisions relating to disqualification  

of members of both the Houses of the Legislature  

of a State and deals with vacation of seats.  We  

are  concerned  with  the  provisions  of  Section  

190(3)(b)  of  the  Constitution,  which  read  as  

under :-

“190. Vacation of seats – (3) If a member of a  House of the Legislature of a State –  

(a) ………………………………………………………………………

(b) resigns his seat by writing under his hand  addressed to the Speaker or the Chairman, as the  case may be, and his resignation is accepted by  the Speaker or the Chairman, as the case may be,  

his seat shall thereupon become vacant:  

Provided  that  in  the  case  of  any  resignation  referred  to  in  sub  clause  (b),  if  from  information  received  or  otherwise  and  after  making such inquiry as he thinks fit, the Speaker  or the Chairman, as the case may be, is satisfied  that  such  resignation  is  not  voluntary  or  genuine, he shall not accept such resignation.”  

24. The key words in the above provision are  

that  if  a  Member  resigns  a  seat  and  such  

resignation is accepted by the Speaker or the  

Chairman, his seat shall thereupon become vacant  

(Emphasis supplied).  In such event, it would  

result in the creation of a casual vacancy within  

the meaning of Part IX relating to bye-elections  

which contains Section 147 and Sections 149 to  

151A.  If such casual vacancy occurs in the State  

Legislative Assemblies or the State Legislative  

Councils, the provisions of Sections 150 and 151  

are attracted, which do not, however, prescribe  

any time limit for such vacancy to be filled up  

by the Election Commission.  Since in the instant

case  we  are  concerned  with  the  A.P.  State  

Legislative Assembly, the provisions of Section  

150 are relevant to the facts of the case and are  

extracted hereinbelow :-

“150. Casual vacancies in the State Legislative  Assemblies. - (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  orders made thereunder shall   apply, as far as  may be, in relation to the election of a member  to fill such vacancy.       (2) If the vacancy so caused be a vacancy in  a seat reserved in any such constituency for the  Scheduled Castes or for any Scheduled Tribes, the  notification issued under sub-section (1) shall  specify that the person to fill that seat shall  belong  to  the  Scheduled  Castes  or  to  such  Scheduled Tribes, as the case may be.”

25. It is the aforesaid provision of Section  

150 which gives rise to the apparent conflict  

regarding the duty of the Election Commission to  

fill up such vacancies in view of the provisions  

of Section 84 which provides as follows :-

“84. Relief  that  may  be  claimed  by  the  petitioner – 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.”  

26. According to the provisions of Section 84,  

in addition to claiming a declaration that the  

election of all or any of the returned candidates  

is  void,  an  election  petitioner  can  claim  a  

further declaration that he himself or any other  

candidate  has  been  duly  elected.   It  is  this  

question  which  fell  for  consideration  in  D.  

Sanjeevayya’s  case  (supra)  giving  rise  to  an  

apparent  conflict  between  the  provisions  of  

Article 190(3)(b) of the Constitution and Section  

84  of  the  1951  Act.   While  Article  190(3)(b)  

provides that upon resignation of a seat by an  

elected member, if accepted, creates a vacancy,  

which, in turn, attracts the provisions of Part  

IX, a different note is struck by the latter part  

of Section 84 which cannot be lost sight of. In  

D.Sanjeevayya’s  case  (supra)  although  the  

provisions of Section 151A were not available,  

this Court felt that there was no finality in the  

vacancy caused by the resignation of a member of  

the House where an election petition was pending.

If  the  election  of  the  member  who  resigns  is  

unchallenged,  there  is  no  difficulty  in  

harmonizing the provisions of Section 151A with  

the rest of the Sections included in Part IX and  

Section 8A of the 1951 Act.  It is only when an  

election petition is filed under Section 84 of  

the Act that the latter part of the Section comes  

into  play  and  is,  thereafter,  reflected  in  

Sections 98(c) and 101(b) of the said Act.  

27. In  D.  Sanjeevayya’s  case  (supra),  this  

Court  while  considering  the  apparent  conflict  

between Article 190(3)(b) of the Constitution and  

Sections 150, 84 and 98 of the 1951 Act, came to  

the conclusion that it was not permissible to  

interpret Section 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.   Their  

Lordships  further  observed  that  a  returned  

candidate  could  not  get  rid  of  an  election  

petition filed against him merely by resigning  

his seat from the legislature, whatever be the  

reason for his resignation. Although not stated  

in the judgment, the ramifications of an order

under Section 84 are felt in Section 8A dealing  

with disqualification on the grounds of corrupt  

practices.  Such an eventuality cannot be avoided  

by the returned member simply by resigning his  

seat  in  the  Legislative  Assembly  and  the  

provisions of Section 150 would, therefore, have  

to  be  read  in  conjunction  with  Section  84.  

Their Lordships, therefore, ultimately held that  

in such cases the Election Commission was not  

bound under Section 150 of the Act to hold a bye-

election  forthwith,  but  it  was  entitled  to  

suspend taking action under the said section till  

the  decision  in  the  election  petition  under  

Section 84 was known.   

28. In its impugned judgment the High Court  

dealt  with  the  decision  of  this  Court  in  D.  

Sanjeevayya’s case (supra) in the following terms  

:

“Sanjeevayya ratio is of no help to ignore the  enacted  provision  nor  ECI  can  call  back  on  exercising  power  under  Article  324  of  Constitution.   Therefore,  pendency of  election  petition  and  the  uncertainty  of  consequences  there from are neither a reason nor rationale to  ignore Section 151A and classify casual vacancies  into ‘clear vacancies’ and ‘not clear vacancies’.  Article 190(3)(b) of the Constitution does not  admit  such  differentiation.   Insofar  as  bye-

elections are concerned, when once a declaration  is  made  under  Section  150  of  RP  Act  by  the  Speaker – a vacancy that arises as contemplated  under Constitution and/or the relevant statute;  Section  151A  comes  into  play  and  the  bye- elections  to  the  casual  vacancies  that  arises  under Sections 147, 149, 150 and 151 shall have  to be conducted by ECI within the period mandated  by the Parliament.

Sanjeevayya was a case where a member’s election  was  impeached  before  the  Election  Tribunal.  During  its  pendency,  the  successful  candidate  submitted  resignation  and  invoked  public  law  remedy  before  this  Court.   He  unsuccessfully  sought mandamus to ECI to hold election as per  Section 150 of RP Act.  The pendency of election  petition and Sections 86, 98(C) and 150 of RP Act  (without  any  time  limit  for  conduct  of  bye- election)  became all  important statutory  facts  for construction of the provisions.  The Supreme  Court considered that, “no time limit is fixed  in the Section for the Election Commission to  call  upon  Assembly  Constituency  concerned  to  elect a person for filling the vacancy”, that,  Section  does  not  say  that  “the  Election  Commission shall hold a bye-election “forthwith”  or “immediately”” and that in the facts of that  case,  Election  Commission  is  not  bound  under  Section  150  of  RP  Act  to  hold  bye-election  forthwith (see paras 5 and 6 of AIR).  Needless  to mention that the case involved construction of  Section 150 in the context of Sections 84 and  98(C) of RP Act at the time when Section 151A was  not in RP Act.

There was some debate before us that Act  21 of 1996 which inserted Section 151A not being  a  piece  of  legislative  invalidation  (or  validation), Sanjeevayya covers the lis.  We are  afraid we cannot accept the submission.  It is  well settled that the construction of provision  by the Court before such provision is amended or  substituted is an exercise of interpretation of  the law as existed and does not and should not be  treated as covering the situation after express  enactment  amending  the  provisions  of  Law  so  construed earlier.”  

29. In order to justify its departure from the  

decision of this Court in D. Sanjeevayya’s case  

(supra), the Division Bench of the High Court  

instead relied on the decision of this Court in  

Baliram Waman Hiray vs. Justice B. Lentin & Ors.  

[(1988)  4  SCC  419],  wherein,  the  decision  in  

Lalji Haridas vs. State of Maharashtra [AIR 1964  

SC 1154], which was a decision in relation to the  

proceedings taken by the Income  Tax  Officer  

under Section 37(4) of the Income Tax Act, 1922,  

was relied upon.  The question involved therein  

was that the said proceedings before the Income  

Tax Officer were judicial proceedings within the  

meaning of Section 193 of the Indian Penal Code.  

For  the  purposes  of  Section  195(1)(b)  of  the  

Code, reliance was also placed on the decision of  

this Court in  Indira Nehru Gandhi vs.  Shri Raj  

Narain & Anr. [1975 Supp. SCC 1] and Kanwar Lal  

vs. Amar Nath Chawla & Ors. [(1975) 3 SCC 646],  

regarding the changes in the law effected by the  

amendments  which  were  held  to  repel  the  

submissions  made  therein  on  behalf  of  the  

Respondent  that  the  expenses  incurred  by  a

political  party  could  be  identified  with  the  

election of a candidate and that such expenditure  

was to be added to the election expenses of a  

candidate as being authorized by him.  This Court  

instead held that expenses incurred or authorized  

in connection with the election of a candidate by  

a political party would not be deemed to be and  

would not ever be deemed to have been expenditure  

in  connection  with  the  election  incurred  or  

authorized  by  the  candidate.  The  High  court  

observed that legislative changes were relevant  

in  considering  the  binding  nature  of  the  

precedent of the Court on record and that such a  

precedent may cease to be an authority in view of  

the  subsequent  changes  made  by  competent  

legislature.  On the basis of such conclusions,  

the High Court held that even if the statement of  

objects and reasons of the amending Act did not  

specifically refer to Sanjeevayya, the new legal  

regime alone must be looked into by the Court.

30. In  its  impugned  judgment  the  Division  

Bench  of  the  High  Court  also  held  that  the  

submission made on behalf of the counsel for the  

Election Commission that Sections 150 and 151 of

the 1951 Act should be harmoniously construed,  

was ruled out in view of the non-obnstante clause  

in Section 151A.

31. We are afraid that we are unable to agree  

with the reasoning of the Division Bench of the  

High  Court  in  its  attempt  to  distinguish  the  

decision of this Court in D. Sanjeevayya’s case  

(supra)  on  the  basis  that  the  subsequent  

inclusion  of  Section  151A  in  the  1951  Act  

nullified  the  ratio  of  the  decision  in  

D.Sanjeevayya’s case (supra) and that in view of  

Section 151A, the provisions of Section 84 or  

98(c)  or  101(b)  became  redundant  upon  a  seat  

being declared vacant by the Speaker of the House  

under Article 190(3)(b) of the Constitution of  

India.

32. The decision in Sanjeevayya’s case (supra)  

involved the causation of a casual vacancy on  

account of resignation by the elected candidate  

while an election petition under Section 84 of  

the  Act  was  pending.  The  effect  of  Article  

190(3)(b) of the Constitution was considered in  

the facts of the said case and it was held that

the vacancy caused by the decision of the Speaker  

did  not  become  a  vacancy  available  for  being  

filled  up  and/or  capable  of  being  filled  up  

(Emphasis supplied) till a declaration was either  

made or refused under the latter part of Section  

84.  Notwithstanding the intervention of Section  

151A  by  way  of  amendment  with  effect  from  1st  

August, 1996, the position remains the same.  The  

only effect on account of such declaration under  

Section 190(3)(b)is that a time limit was fixed  

for holding bye-elections in respect of casual  

vacancies. The all important question is whether  

a  vacancy  caused  on  account  of  any  of  the  

contingencies  contemplated in Sections 147 and  

149 to 151 can be said to be an available vacancy  

for the purposes of Section 151A of the 1951 Act.  

It is significant that in Section 151A neither  

Section 84 nor Sections 98(c) and 101(b) have  

been mentioned.  Instead, what is referred to are  

the casual vacancies referred to in Sections 147  

and 149 to 150 in the State Legislative Assembly  

and the State Legislative Council.  What had not  

been  indicated  in  the  said  provisions  were  

provided in Section 151A with the two exceptions

carved  out  in  the  proviso.   Section  151A  

prescribed  a  time  limit  within  which  a  bye-

election is to be held to fill up any vacancy  

referred to in Sections 147 and 149 to 151 of the  

1951 Act. The Division Bench of the High Court  

was,  therefore,  clearly  wrong  in  coming  to  a  

finding that the  non-obstante clause of Section  

151A, which was not available, when the decision  

in  D.Sanjeevayya’s  case  (supra)  was  rendered,  

altered the whole legal scenario and rendered the  

decision in D.Sanjeevayya’s case (supra) to be no  

longer  good  law  as  declared  by  this  Court.  

Although,  an  attempt  has  been  made  to  

differentiate  between  the  facts  of  

D.Sanjeevayya’s case (supra) and this case, we  

are  unable  to  accept  the  interpretation  of  

Section 151A in support of such contention.  Any  

other interpretation of Section 151A would render  

the provisions of Sections 84, 98(c), 101(b) and  

8A of the 1951 Act otiose, which could not have  

been  the  intention  of  the  Legislature,  which  

would otherwise have clearly indicated as such in  

the proviso to Section 151A.

33. At this stage, it would be apposite to  

consider another aspect of the matter regarding  

the meaning of the expression “vacancy” for the  

purpose of Part IX of the aforesaid Act.  In this  

behalf we are inclined to agree with the decision  

rendered in D.Sanjeevayya’s (supra) case and the  

submissions of the learned Additional Solicitor  

General that in order to be filled up in a bye-

election, a vacancy must be available for being  

filled  up.   In  a  situation  such  as  that  

contemplated by the latter half of Section 84 and  

its consequences as reflected in Sections 98(c),  

101(b) and 8A of the 1951 Act, it cannot be said  

that a vacancy in such a situation would be a  

vacancy available for being filled up by a bye-

election,  particularly  in  a  situation  where  

allegations of corrupt practices have been made  

which, if proved, provides for disqualification  

under  Section  8A  of  he  said  Act.   Simply  by  

submitting  his  resignation,  a  successful  

candidate  against  whom  allegations  of  corrupt  

practices  are  made,  cannot  escape  the  

consequences of Section 8A of the Act, if the  

same are ultimately found to be proved.      

34. The various decisions cited do not appear  

to have any relevance as far as the facts of this  

case are concerned.  The object with which the  

1951 Act was enacted is reflected in the Preamble  

which reads as follows :-

“The Act to provide for the conduct of elections  of the Houses of Parliament and to the House or  Houses  of  the  legislature  of  each  State,  the  qualifications  and  disqualifications,  the  membership of those Houses, the corrupt practices  and other offences at or in connection with such  elections and the decision of doubts and disputes  arising  out  of  or  in  connection  with  such  elections.”

The Act is a complete Code for the conduct of  

elections  by  the  Election  Commission  of  India  

appointed under Article 324 of the Constitution  

which  provides  for  superintendence,  direction,  

control and conduct of elections to Parliament  

and to the legislature of every State and also of  

elections to the offices of President and Vice-

President  held  under  the  Constitution.  The  

provisions  of  Article  190(3)(b)  of  the  

Constitution have, therefore, to be read along  

with the provisions of the 1951 Act.  Section 84  

of  the  said  Act  cannot  be  rendered  otiose  by  

holding  that  all  vacancies  on  account  of  the

aforesaid  provision of  the Constitution  become  

immediately available for being filled up by way  

of a bye-election.  The same reasoning applies in  

regard to Section 151A of the 1951 Act and its  

impact on the latter part of Section 84 thereof.  

As has been mentioned hereinbefore, a proceeding  

under  Section  84  has  to  run  its  full  course,  

particularly for the purposes of Section 8A of  

the  said  Act.   The  views  expressed  by  the  

Division Bench of the High Court on this point  

cannot, therefore, be sustained.  

35. We are, therefore, of the firm view that  

the  introduction  of  Section  151A  in  the  

Constitution did not alter the position as far as  

the  provisions  of  Section  84  and  consequently  

98(c) and 101(b) of the 1951 Act are concerned,  

since although a casual vacancy may have occurred  

within the meaning of Section 150 of the 1951  

Act, those vacancies in which election petitions  

had been filed and were pending cannot be held to  

have become available for the purposes of being  

filled  up  within  the  time  prescribed  under  

Section 151A of the 1951 Act.  Article 190(3)(b)  

of the Constitution merely indicates that  if a

Member  of  a  House  of  a  Legislature  of  State  

resigns  his seat by writing to the Speaker and  

such  resignation  is  accepted,  his  seat  shall  

become vacant.  It does not introduce any element  

of compulsion on the Election Commission to hold  

a bye-election ignoring the provisions of Section  

84 of the Act. In such cases, we have little  

hesitation in holding that such casual vacancies  

are not available for being filled up and the  

Commission  will  have  to  wait  for  holding  

elections in such Constituencies until a decision  

is  rendered  in  regard  to  the  latter  part  of  

Section 84 of the 1951 Act during the life of the  

House. The view expressed by the High Court that  

a case has to be decided in accordance with the  

laws as existing on the date of adjudication,  

while salutary in principle, are not attracted to  

the facts of this case in view of the provisions  

of Section 84 of the 1951 Act.  

36. The Appeal is, therefore, allowed and the  

judgment  and  order  of  the  High  Court  is,  

accordingly,  set  aside  and  the  writ  petition  

filed  by  the  Respondent  No.1  herein  for  a  

direction  to  hold  bye-elections  for  the  28-

Vemulawada Assembly Constituency and 29-Sircilla  

Assembly  Constituency  is  dismissed.   Having  

regard to the facts involved, the parties will  

bear their own costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (A.K. PATNAIK)

New Delhi Dated:3.12.2010

ITEM NO.1A.             COURT NO.2             SECTION XIIA [for judgment]

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      C.A.No......../2010  @Petition(s) for Special Leave to Appeal (Civil) No(s).20590/2010

(From the judgement and order dated 30/06/2010 in  WP No. 14443/2010  of The  HIGH COURT OF A.P  AT HYDERABAD)

ELECTION COMMN.OF INDIA                           Petitioner(s)

                VERSUS

TELANGANA RASTRA SAMITHI & ANR                    Respondent(s)

 For Petitioner(s)                      Ms. Meenakshi Arora,Adv.

Ms Poli Katakai, Adv.  

For Respondent(s) Ms. Sonam Anand, Adv.  

Mr. J.Ramachander Rao, Adv. Mr. P.Venkat Reddy, Adv.   Mr. B.Ramamurthy, Adv.  

                    Mr. Anil Kumar Tandale,Adv.

Hon'ble  Mr.  Justice  Altamas  Kabir  

pronounced the judgment of the Bench comprising His  

Lordship and Hon'ble Mr. Justice  A.K. Patnaik.  

The appeal is allowed in terms of the signed  

judgment.   

After  the  judgment  was  delivered,  it  was  

brought to the notice of the Court by Ms.Meenakshi  

Arora, learned counsel, that elections in the two  

38

constituencies had already been held on 27th July,  

2010.  Having regard to the above, let this matter  

be listed next Wednesday i.e. 8th December, 2010 for  

further orders.

(Anita Malhotra) Sr.P.A.

(Juginder Kaur) Court Master

 [Signed Reportable Judgment is placed on the file]   

39