ELECTION COMMISSION OF INDIA v.

TELEANGANA RASTRA SAMITHI & ANR. (Civil Appeal No. 10244 of 2010)

DECEMBER 03, 2010 [Altamas Kabir and A.K. Patnaik, JJ.]

[2010] 14 (ADDL.) SCR 468

The Judgment of the Court was delivered by

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 Article 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 Act 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.