TMI Blog2010 (12) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (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 v. State of Mysore AIR 1958 SC 255; (ii) Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Ors. 1987) 1 SCC 424; (iii) O.P. Singla and Anr. v. Union of India and Ors. 1984) 4 SCC 450; (iv) Krishan Kumar v. State of Rajasthan and Ors. (1991) 4 SCC 258; (v) Sultana Begum v. 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 herein below: 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Mr. Reddy lastly referred to and relied on the decision rendered by this Court in Consumer Education and Research Society v. Union of India and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 herein below: 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 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ece 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 v. Justice B. Lentin and Ors. (1988) 4 SCC 419, wherein, the decision in Lalji Haridas v. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered 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 excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
