NITIN BANDOPANT SALAGREversusTHE STATE ELECTION COMMISSION & ANR.

                         [2019] 10 S.C.R. 1121                               1121


                  NITIN BANDOPANT SALAGRE                                    A
                                    v.
         THE STATE ELECTION COMMISSION & ANR.
                    (Civil Appeal No.5855 of 2019)
                          AUGUST 05, 2019                                    B
         [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
       Mumbai Municipal Corporation Act, 1888 – ss. 9, 33 and 34
– Filling of casual vacancy – General election for electing
Councillor for Bombay Municipal Corporation was conducted and
                                                                             C
one candidate was declared successful for the seat reserved for
backward class of citizens – A complaint was filed against the said
successful candidate on the ground that she had wrongly claimed
to be a member of backward class citizen – The District Caste
certificate scrutiny committee invalidated the caste certificate of
the said candidate – Consequently, the said candidate was                    D
disqualified by the Corporation – On account of disqualification,
a casual vacancy arose in the ward – The State Election Commission
issued a notification dated 09.05.2019 notifying the byelection for
ward to fill up casual vacancy u/s.9 of the Act – Writ petitions were
filed by the appellants before the High Court for direction to set
                                                                             E
aside the notification dated 09.05.2019 – The appellant claimed
that since he had secured second highest votes from the said ward,
he was entitled to be declared as elected as per s.33 of the Act –
Earlier, appellant had filed another writ petition before the High
Court to decide the election petition for declaring the appellant as
elected candidate expeditiously – In that writ petition, the High Court      F
had directed the Court of Small Causes to decide the election petition
expeditiously – Writ petitions for direction to set aside the notification
dated 09.05.2019 were dismissed by the High Court – On appeal
before the Supreme Court, the appellants contended that since
election petition was pending consideration, the State Election
                                                                             G
Commission had no jurisdiction to issue notification for holding a
byelection for electing councillor – Held: By mere pendency of
election petition filling up of casual vacancy is not to be deferred
or postponed – State Election Commission before proceeding to fill
up a casual vacancy u/s. 9 has to advert to the statutory prescription
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                                 1121
1122            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


 A     u/s. 34 and take a conscious decision by due application of mind
       and thereafter to proceed to fill up vacancy arose – In each case of
       casual vacancy, there may be different circumstances without
       adverting to which State Election Commission cannot decide to fill
       up the casual vacancy – In the instant case, when an election petition
       was already filed challenging the election of returned candidate
 B
       since before invalidation of his or her caste certificate in which
       election petition prayer was also made to declare the candidate
       securing second highest votes as deemed elected, the State Election
       Commission may not call for fresh election without considering the
       said aspect of the matter – Further, Commission had issued
 C     notification dated 09.05.2019 on subject regarding preparation of
       voters list for byelection for filling up vacancies of Municipal
       Corporation but no notification was issued fixing dates for
       byelection of the wards in question – Therefore, State Election
       Commission directed to take a fresh decision before issuing any
       notification fixing dates for holding a byelection of wards –
 D
       Impugned judgment of the High Court set aside.
             Allowing the appeals, the Court
              HELD: 1. Section 33(2) of the Mumbai Municipal
       Corporation Act, 1888 incorporated the statutory Scheme that if
 E     Chief Judge of Small Causes Court finds that the person whose
       election is objected to is disqualified for being a councillor, or if
       he finds that the election is not a valid election, he shall set it
       aside. In either case, he shall direct that the candidate in whose
       favour the next highest number of valid votes has been recorded
       shall be deemed to have been elected. Thus, the statutory Scheme
 F     recognises the person, who has secured the second highest votes
       to be deemed to be elected, which provision has been
       incorporated for specific purpose and object. It is a matter of
       common knowledge that holding of election is a cumbersome
       process involving lot of time, involvement of manpower and
 G     expenditure. Municipal Corporations under the Act, 1888 has
       been entrusted with a large number of powers and jurisdiction
       and every five years, the election for constituting Municipal
       Corporation is to be undertaken. The right in a person, who has
       secured the second highest number of votes has been recognised
       to obviate holding of fresh elections. Thus, the Legislative
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     NITIN BANDOPANT SALAGRE v. STATE ELECTION                         1123
                COMMISSION & ANR.

Scheme itself recognises the declaration of a person securing          A
second highest votes as deemed to have been elected. The said
purpose and object has to be given effect to while interpreting
the provisions of the Act. The second part of Section 9 specifically
provides for filling up of the casual vacancy in the manner as
provided in Section 34, the question as to “whether there is no
                                                                       B
other candidate, who can be deemed to be elected in his place”
becomes relevant and necessary. For answering the said
question, the State Election Commission has to apply its mind
and look into all necessary facts pertaining to ward in question.
It is further relevant to notice that the requirement of finding out
answer to the above question is relevant when an election petition     C
has already been filed by a person claiming that there is a
candidate, who can be deemed to be elected in place of returned
candidate. When there are no election petitions filed under
Section 33 or where no prayer is made for declaring candidate
obtaining second highest votes, the above question becomes
                                                                       D
irrelevant and has no bearing on filling up of the casual vacancy.
The use of the expression in Section 9, i.e., “as soon as it
conveniently may be” indicates that Statute gives discretion to
the State Election Commission to hold byelections for a casual
vacancy. The Statute does not mandate holding of byelections,
i.e., filling up of casual vacancy as soon as the casual vacancy       E
arises. Discretion has been given to the Commission for a
purpose and object. [Para 26] [1137-B-H; 1138-A]
      2. One of the factors in taking a decision regarding filling
up of the casual vacancy is as to whether there is no other
candidate, who can be deemed to be elected in place of the             F
returned candidate. All these aspects have to be looked into and
considered by the State Election Commission before proceeding
to hold elections. But this Court makes it clear that the statutory
Scheme does not indicate that by mere filing of an election petition
questioning the election of returned candidate of ward and seeking
a declaration in favour of the election petitioner shall ipso facto    G
put an embargo in the right of State Election Commission to
proceed to fill up the casual vacancy. The State Election
Commission has been statutorily obliged to find out as to whether
there is no other candidate, who can be deemed to be elected in
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1124            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


 A     place of returned candidate, only thereafter it is obliged to hold
       fresh elections. It postulates a decision making process by due
       application of mind considering all relevant and necessary factors,
       eschewing the irrelevant. [Para 27] [1138-B-D]
              3. In view thereof, with regard to statutory Scheme under
 B     Act, 1888 regarding filling up of casual vacancy, this Court arrives
       at following conclusions:-
              (i) By mere pendency of election petition filling up of casual
       vacancy is not to be deferred or postponed. State Election
       Commission before proceeding to fill up a casual vacancy under
 C     Section 9 has to advert to the statutory prescription under Section
       34 and take a conscious decision by due application of mind and
       thereafter to proceed to fill up vacancy arose. In each case of
       casual vacancy, there may be different circumstances without
       adverting to which State Election Commission cannot decide to
       fill up the casual vacancy; (ii) A casual vacancy caused due to
 D     invalidation of caste certificate of returned candidate has to be
       filled up in a manner provided in Section 34 of Act, 1888; (iii)
       When an election petition has already been filed challenging the
       election of returned candidate since before invalidation of his or
       her caste certificate in which election petition prayer is also made
 E     to declare the candidate securing second highest votes as deemed
       elected, the State Election Commission may not call for fresh
       election without considering the above aspect of the matter.
       [Para 36] [1143-C-G]
             4. Although Commission has issued notification dated
 F     09.05.2019 on subject regarding preparation of voters list for
       byelection for filling up vacancies of Municipal Corporation but
       no notification having yet been issued fixing date for byelection
       of wards in question, this Court is of the view that State Election
       Commission may take a fresh decision before issuing any
       notification fixing dates for holding a byelection of wards in
 G     question. [Para 38] [1140-B-C]
             Jyoti Basu and Others v. Debi Ghosal and Others
             (1982) 1 SCC 691 : [1982] 3 SCR 318 – relied on.
             D. Sanjeevayya v. The Election Tribunal, Andhra
             Pradesh and Others AIR 1967 SC 1211 : [1967] SCR
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     NITIN BANDOPANT SALAGRE v. STATE ELECTION                            1125
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      489 ; Election Commission of India v. Telnagana Rastra              A
      Samiti and Another (2011) 1 SCC 370 : [2010] 14 SCR
      468; Pramod Laxman Gudadhe v. Election Commission
      of India and Others (2018) 7 SCC 550 : [2018] 4 SCR
      397 – referred to.
                        Case Law Reference                                B
      [1967] SCR 489               referred to           Para 6
      [2010] 14 SCR 468            referred to           Para 6
      [2018] 4 SCR 397             referred to           Para 6
      [1982] 3 SCR 318             relied on             Para 14          C
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5855
of 2019
      From the Judgment and Order dated 10.06.2019 of the High Court
of Judicature at Bombay in Writ Petition Lodging No. 1577 of 2019
                                                                          D
                                With
      Civil Appeal Nos. 5857, 5856 and 5858 of 2019.
      Ms. Meenakshi Arora, Sr. Adv., Vinay Navare, Chintamani
Bhangoji, Sudhanshu S. Choudhari, Surabhi Guleria, Yogesh Kolte,
Mahesh P. Shinde, Advs. for the Appellant.                                E

      Atmaram N. Nadkarni, ASG, Sanjay Hegde, Sr. Adv., Manoj
Sharma, Alok Singh, Pramod Kathane, Deepak Shukla, Gaurav
Bhardwaj, Kapil Kaushik, Pramod Dayal, Braj K. Mishra, Vijay Kumar,
Dhaval S. Deshpande, Ms. Bharti Tyagi, Ashish Wad, Mrs. Jayashree
Wad, Sidharth Mahajan, Ms. Sukriti Jaggi, Advs. for the Respondents.      F
      The Judgment of the Court was delivered by
      ASHOK BHUSHAN, J.
       1. These appeals have been filed against the common judgment
of the Bombay High Court dated 10.06.2019 by which separate writ          G
petitions filed by the appellants have been dismissed.
       2. The question of law raised in all these appeals being common,
all the appeals have been heard together and are being decided by this
common judgment. For deciding these appeals, it shall be sufficient to
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1126            SUPREME COURT REPORTS                        [2019] 10 S.C.R.


 A     refer the facts and pleadings in Civil Appeal No. 5855 of 2019 – Nitin
       Bandopant Salagre Vs. The State Election Commission & Anr.
              3. The general elections for electing councillor for Bombay
       Municipal Corporation were held in February, 2017. One Mrs. Kesharben
       Murji Patel was declared elected on 23.02.2017 as councillor from Ward
 B     No.76. Ward No.76 was reserved for backward class of citizens. Mrs.
       Kesharben Murji Patel had wrongly claimed to be a member of backward
       class citizen. The appellant filed a complaint before District Caste
       Certificate Scrutiny Committee and has also filed Election Petition No.52
       of 2017 before Chief Judge of Small Causes Court, Mumbai under
       Section 33 of the Mumbai Municipal Corporation Act, 1888 (hereinafter
 C     referred to as “Act, 1888) challenging the election of Mrs. Kesharben
       Murji Patel. The District Caste Certificate Scrutiny Committee by its
       order dated 19.08.2017 invalidated the caste certificate of Mrs.
       Kesharben Murji Patel. Writ Petition No. 181 of 2018 was filed by Mrs.
       Kesharben Murji Patel seeking direction to the Corporation not to
 D     disqualify her. The writ petition No. 181 of 2018 was dismissed on
       02.04.2019 against which special leave petition (C) No.8946 of 2019
       was filed, which too was dismissed on 24.04.2019. Mrs. Kesharben
       Murji Patel was disqualified by order dated 05.04.2019 of the Corporation.
       On account of disqualification of Mrs. Kesharben Murji Patel from Ward
       No.76, a casual vacancy arose in the said ward. The appellant claimed
 E     to have secured second highest number of votes from Ward No.76,
       hence he claimed that he ought to have been declared by Chief Judge of
       Small Causes Court as having elected from Ward No.76. The State
       Election Commission, Maharashtra issued a notification dated 09.05.2019
       notifying the byelection for Ward No.76 of the Corporation to fill up
 F     casual vacancy arising under Section 9 of the Act, 1988. The Writ
       Petition (C) No.1577 of 2019 has been filed by the appellant in the Bombay
       High Court praying for following reliefs:-
             “(a) That this Hon’ble Court be pleased to quash and set aside
                   the Notification dated 9 th May, 2019 issued by the
 G                 Respondent No.1 State Election Commission thereby
                   notifying the by-elections for Ward No.76 of Respondent
                   No.2 Corporation to fill up the casual vacancy arisen under
                   Section 9 of MMC Act, 1888.
             (b) This Hon’ble Court be pleased to direct the learned Small
 H                Causes Court at Mumbai to expedite the proceedings in the
      NITIN BANDOPANT SALAGRE v. STATE ELECTION                                  1127
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             Municipal Election Petition No.52 of 2017 filed by the              A
             petitioner, within such time limit as this Hon’ble Court may
             deem fit and proper.
       (c)   Pending hearing and final disposal of this petition, the
             Notification dated 9th May, 2019 issued by the Respondent
             No.1 State Election Commission thereby notifying the by-            B
             elections for Ward No.76 of Respondent No.2 Corporation,
             be kindly ordered to stayed.
       (d) Ad-interim/interim relief in terms of prayer clause (c) above
            be kindly granted.
       (e)   Such other and further relief as this Hon’ble Court may             C
             deem fit and proper be kindly granted.”
       4. By an interim order passed on 16.05.2019, the High Court
permitted State Election Commission to proceed with for preparation of
voters list, however, notification declaring election of the wards was not
to be published till 12.06.2019. It is also relevant to notice that Writ         D
Petition (L) No.1288 of 2019 was filed by the appellant where direction
was sought for deciding Election Petition No.52 of 2017, which writ
petition was disposed of by the High Court on 04.06.2019 requesting the
learned Judge of the Small Causes Court at Bombay to decide the election
petition expeditiously as possible and in any event by 31st August, 2019.        E
Similarly, three other petitioners have filed writ petitions in the High Court
being Writ Petition No.1453 of 2019 – Sandeep Raju Naik Vs. The
State Election Commission & Ors.; Writ Petition No.1578 of 2019 –
Geeta Kiran Bhandari Vs. The State Election Commission and Writ
Petition No. 1462 of 2019 – Eknath (Shankar) Dnyandeo Hundar Vs.
The State Election Commission. In all the writ petitions, one of the reliefs     F
claimed was to cancel the notification dated 09.05.2019 issued by the
State Election Commission, by which State Election Commission,
Maharashtra has issued a notification for preparation of voters list for
byelections for filling up of vacant posts in the Municipal Corporation.
The wards from which appellants had contested the elections of councillor        G
were included in the notification. High Court heard all the writ petitions
together. High Court had also dispensed with filing of the affidavits of
the parties. High court by impugned judgment dated 10.06.2019 dismissed
all the four writ petitions, aggrieved by which judgment, these appeals
have been filed.
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1128             SUPREME COURT REPORTS                          [2019] 10 S.C.R.


 A            5. We have heard learned counsel appearing for the appellants,
       learned counsel for the State Election Commission and learned counsel
       appearing for Municipal Corporation as well as learned counsel for
       intervener.
              6. Learned counsel for the appellant challenging the judgment of
 B     High Court contends that the appellants being candidates having secured
       second highest votes in the election of councillor and the returned
       candidates having been declared disqualified, the appellants are entitled
       to be declared as elected as per Section 33 of Act, 1888. The Election
       Petition of the appellants where prayer for declaring the appellants as
       elected candidates being pending consideration, the State Election
 C     Commission had no jurisdiction to issue notification for holding a byelection
       for electing councillor. It is submitted that the Statute contemplates that
       the candidates securing second highest votes shall be deemed to be
       elected as councillor in case of setting aside of the election. Holding of
       byelections till the election petition of the appellant is pending, is not
 D     permissible in law. Learned counsel for the appellant has placed reliance
       on judgments of this Court in D. Sanjeevayya Vs. The Election
       Tribunal, Andhra Pradesh and Others, AIR 1967 SC 1211; Election
       Commission of India Vs. Telnagana Rastra Samiti and Another,
       (2011) 1 SCC 370 and Pramod Laxman Gudadhe Vs. Election
       Commission of India and Others, (2018) 7 SCC 550. It is submitted
 E     that in event byelection is permitted to be held and some other person is
       declared elected in the said election and in the election petition if
       declaration is made in favour of appellant that he shall be deemed to be
       elected from the ward of the Municipal Corporation, there shall be two
       candidates claiming to represent the constituency, which is not permissible
 F     as per the statutory Scheme. It is further submitted that the Division
       Bench has not followed the view of an earlier Division Bench judgment
       dated 17.09.2007 in Writ Petition No.6846 of 2007-Jagdish Kutty
       Amin Vs. Municipal Corporation of Brihanmumbai & 2 Ors. and
       for taking a different view, matter ought to have been referred to a
       larger bench.
 G
              7. Learned counsel for the respondents refuting the submissions
       of the learned counsel for the appellant contends that filing of election
       petition by appellant does not have an effect of postponing the filling up
       of casual vacancy by the State Election Commission. It is submitted

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      NITIN BANDOPANT SALAGRE v. STATE ELECTION                                  1129
        COMMISSION & ANR. [ASHOK BHUSHAN, J.]

that term of councillor being five years and admittedly returned candidate       A
having been declared disqualified, the ward cannot remain unrepresented.
The election petition filed by the appellant may or may not be decided
during the tenure of the Municipal Corporation. Had the Statute intended
that till the election petition is decided with regard to claim of petitioners
claiming declaration as elected candidates, the byelection be not held,
                                                                                 B
there ought to have been some specific provisions in the statutory Scheme.
It is submitted that filling up of casual vacancy, which has arisen within
the meaning of Section 9 of Act, 1888 is not dependent on any election
petition filed under Section 33 of the Act, 1888. The course of action as
contemplated by Section 33(2) is only relevant for the election petition,
which has been filed under Section 33, which does not have any effect            C
of stopping or staying the filling up of casual vacancy. It is submitted
that the Scheme in the Representation of the People Act, 1951 is entirely
different from the Scheme in Act, 1888, hence the judgments relied by
counsel for the appellant are not relevant.
      8. We have heard the learned counsel for the parties and have              D
perused the records.
       9. The present is a case where returned candidates have been
held to be disqualified on account of invalidation of caste certificate.
The disqualification of the returned candidates, who were initially elected
from concerned ward of the Municipal Corporation has attained finality           E
giving rise to casual vacancy in the office of councillor. Section 9 of the
Act, 1888 deals with casual vacancy, which is as follows:-
       “9.Casual vacancies how to be filled up.
           In the event of non-acceptance of office by a person elected
       to be a councillor or of the death, resignation or disqualification of    F
       a councillor, of his becoming incapable of acting during the term
       of his office there shall be deemed to be a casual vacancy in the
       office and such vacancy shall be filled up, as soon as it conveniently
       may be, by the election of a person thereto who shall hold office
       so long only as the councillor in whose place he is elected would         G
       have been entitled to hold it if the vacancy had not occurred.
          The casual vacancy in the office of an elected councillor shall
       be filled up in the manner provided in section 34:

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1130            SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A                Provided that no election shall be held to fill up such vacancy
             if it occurs within six months preceding the date on which the
             term of office of the Councillor expires under section 6A.”
              10. Section 33 of the Act deals with election petitions to be heard
       and disposed of by the Chief Judge of the Small Causes Court, which is
 B     as follows:-
             “33.Election petitions to be heard and disposed of by Chief
             Judge of the Small Cause Court. (1) If the qualification of any
             person declared to be elected for being a councillor is disputed, or
             if the validity of any election is questioned, whether by reason of
 C           the improper rejection by the State Election Commissioner of a
             nomination or of the improper reception or refusal of a vote, or
             for any other cause or if the validity of the election of a person is
             questioned on the ground that he has committed a corrupt practice
             within the meaning of section 28F, any person enrolled in the
             municipal election roll may, at any time, within ten days from the
 D           date on which the list prescribed under clause (k) of section 28
             was available for sale or inspection apply to the Chief Judge of
             the Small Cause Court. If the application is for a declaration that
             any particular candidate shall be deemed to have been elected,
             the applicant shall make parties to his application all candidates
 E           who, although not declared elected, have, according to the results
             declared by the State Election Commissioner under section 32, a
             greater number of votes than the said candidate, and proceed
             against them in the same manner as against the said candidate.
             (1A) The applicant shall, whenever so required by the Chief Judge,
 F           deposit in the Court a sum of Rs. 500 in cash or Government
             securities of equivalent value at the market rate of the day as
             security for any costs which the applicant may be ordered to pay
             to other parties to the said application.
             (2) If the said Chief Judge, after making such inquiry as he deems
 G           necessary, finds that the election was a valid election and that the
             person whose election is objected to is not disqualified, he shall
             confirm the declared result of the election. If he finds that the
             person whose election is objected to is disqualified for being a
             councillor, he shall declare such person’s election null and void. If
             he finds that the election is not a valid election, he shall set it
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      NITIN BANDOPANT SALAGRE v. STATE ELECTION                                  1131
        COMMISSION & ANR. [ASHOK BHUSHAN, J.]

       aside. In either case he shall direct that the candidate, if any, in      A
       whose favour the next highest number of valid votes is recorded
       after the said person and against whose election no cause of
       objection is found, shall be deemed to have been elected.
       (2A) When an election of a person is questioned on the ground
       that he has committed a corrupt practice within the meaning of            B
       section 28F, the Chief Judge shall, if he is satisfied that a candidate
       has committed such corrupt practice, declare a candidate
       disqualified both for the purposes of that election and of such
       fresh election as may be held during the current term of office of
       the councillors elected at the general election and shall set aside
       the election of such candidate if he has been elected.                    C

       (3) The said Chief Judge’s order shall be conclusive.
       (4)        ********
       (5) Every election not called in question in accordance with the
       foregoing provisions shall be deemed to have been to all intents a        D
       good and valid election.”
       11. Section 34 contains a heading “Procedure if election fails or is
set aside”. Section 34 is as follows:-
       “34.Procedure if election fails or is set aside.
                                                                                 E
       (1) If at any general election or an election held to fill a casual
       vacancy, no councillor is elected, or the election of any councillor
       is set aside under sub-section (2) of section 33 and there is no
       other candidate who can be deemed to be elected in his place
       under the said sub-section, the State Election Commissioner shall
                                                                                 F
       appoint another day for holding a fresh election and a fresh election
       shall be held accordingly.
       (2) A councillor elected under this section shall be deemed to
       have been elected to fill a casual vacancy under section 9.”
       12. In the facts of the present case, there is no dispute that election   G
petitions challenging the elections of the returned candidates were filed
by the appellants before the Chief Judge, Small Causes Court prior to
the invalidation of caste certificate by District Caste Certificate Scrutiny
Committee and further in the election petition, the prayer has been made

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1132             SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A     by the appellant that he be also declared elected. Prayer (c) of the
       election petition is as follows:-
             “c) The petitioner be declared elected from ward no.76 of the
             respondent no.1 Corporation, having secured the next highest
             number of valid votes after the respondent No.3 and against whose
 B           election, no cause of objection is found.”
             13. The State Election Commission has started process for holding
       byelection for filling up of vacant posts in the Municipal Corporation.
       Whether filing of election petition or pendency of election petition, where
       one of the prayers is that petitioner be deemed elected from the ward in
 C     question, has effect of postponing the byelections and the State Election
       Commission is denuded from proceeding with holding byelections are
       the questions, which need to be answered in these appeals.
              14. This Court in Jyoti Basu and Others Vs. Debi Ghosal and
       Others, (1982) 1 SCC 691: AIR 1982 SC 983 has laid down that
 D     right to elect, the right to be elected and the right to dispute an election
       are statutory rights. In paragraph No. 8 of the judgment, following has
       been observed:-
             “8. A right to elect, fundamental though it is to democracy, is,
             anomalously enough, neither a fundamental right nor a common
 E           law right. It is pure and simple, a statutory right. So is the right to
             be elected. So is the right to dispute an election. Outside of statute,
             there is no right to elect, no right to be elected and no right to
             dispute an election. Statutory creations they are, and therefore,
             subject to statutory limitation. An election petition is not an action
             at common law, nor in equity. It is a statutory proceeding to which
 F           neither the common law nor the principles of equity apply but only
             those rules which the statute makes and applies. It is a special
             jurisdiction, and a special jurisdiction has always to be exercised
             in accordance with the statute creating it. Concepts familiar to
             common law and equity must remain strangers to election law
 G           unless statutorily embodied…….”
              15. Thus, answer to all issues, which have arisen in these appeals
       has to be deciphered from the statutory Scheme of Act, 1888.
       “Disqualification of a councillor” is one of the circumstances mentioned
       in Section 9, which causes a deemed casual vacancy in the office. Section
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     NITIN BANDOPANT SALAGRE v. STATE ELECTION                                1133
       COMMISSION & ANR. [ASHOK BHUSHAN, J.]

9 of the Act also contemplates filling up of the casual vacancy. Further      A
with regard to filling up of vacancy, a rider has been incorporated under
Section 9 by following words:-
      “as soon as it conveniently may be”
        16. What is the purpose and meaning of the above expression has
to be examined. Section 9 of the Act is in two parts, the second part had     B
been inserted in Section 9 by Bombay Act No.28 of 1935. First part of
Section 9 provides that a casual vacancy shall be filled up as soon as it
conveniently may be by the election of a person thereto. By addition of
second part, it is provided that casual vacancy shall be filled up in the
manner provided in Section 34. We have to look into Section 34 to find        C
out as to the manner provided for casual vacancy to be filled up. As
noted above, Section 34(1) provides that if at any general election or an
election held to fill a casual vacancy, no councillor is elected, or the
election of any councillor is set aside under sub-section (2) of section 33
and there is no other candidate who can be deemed to be elected in his
place, the State Election Commissioner shall appoint another day for          D
holding a fresh election. One of the conditions incorporated in sub-
section(1) of Section 34 for appointing another day for holding fresh
election is that “there is no other candidate who can be deemed to be
elected in his place”, thus, in a case, there is a candidate who can be
deemed to be elected in place of a returned candidate, date for election      E
is not to be appointed.
       17. The submission needs to be considered is as to whether Section
34(1) has to confine in itself for its operation with respect to Section
33(2), i.e., when an election petition of a returned candidate is set aside
or the operational conditions as contained in Section 34(1) shall be          F
attracted with regard to filling up of casual vacancy under Section 9.
Had second part of Section 9, i.e., “the casual vacancy in the office of
an elected councillor shall be filled up in the manner provided in Section
34” been not there in Section 9, there was no difficulty in confining
operation of Section 34 only to election petition under Section 33(2).
                                                                              G
       18. The phrase “The casual vacancy in the office of an elected
councillor shall be filled up in the manner provided in Section 34.” was
added in Act, 1888 by Bombay Act XXVIII of 1935. Section 34 as it
exists at present was also substituted by Act XXVIII of 1935. We need

                                                                              H
1134           SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A     to look into the Statement of Objects and Reasons for amendment in
       Sections 9 and 34. The Statement of Objects and Reasons which were
       published along with Bill No. XXXVI OF 1935 in Bombay Government
       Gazette dated 17.09.1935 is as follows:
                “STATEMENT OF OBJECTS AND REASONS.
 B          Section 34 of the City of Bombay Municipal Act (III of 1888) provides
            that if no councillor is ‘elected at a general election, the retiring
            councillor or councillors shall, if willing to serve, be deemed to
            be re-elected; that if the retiring councillor is not willing to
            serve, or some of the retiring councillors are willing to serve
 C          and some are not, and also in certain other contingencies the
            Corporation shall fill up the vacancy or vacancies by co-
            option within fifteen days of a report made by the Municipal
            Commissioner in that behalf; and that failing such action by
            the Corporation the vacancy or vacancies are to be filled up by
            election. These provisions date from a time when local self-
 D          government may be said to have been in its infancy; and it was
            probably apprehended that a sufficient number of councillors
            to fill up vacancies may not be forth-coming. The provisions
            also appear to have been intended to avoid the trouble and
            expense of holding a fresh election after a general election
 E          had proved infructuous. Conditions have changed since and
            owing to the keen interest taken in local self-government at
            the present day, there is no likelihood of a sufficient number of
            candidates not being available to contest an election. It also
            seems desirable that where an election has been set aside
            and in the other contingencies contemplated in sections 33 and
 F          34 the electors should be given an opportunity of
            returning other representatives of their own choice. The
            Bill is intended to carry out this object.

            16th September, 1935
 G
                                                 (Signed) S. N. BHUTTO.
                                 By order of His’ Excellency the Governor,
                                                                  K. C. SEN,”

 H
     NITIN BANDOPANT SALAGRE v. STATE ELECTION                                    1135
       COMMISSION & ANR. [ASHOK BHUSHAN, J.]

        19. We may also notice the statutory Scheme of Act, 1888 prior            A
to its amendment made in the year 1935. Section 9 as it existed prior to
Amendment 1935 was to the following effect:
      “9. Casual Vacancies How to be filled up –
      In the event of non-acceptance of office by a person elected or
      appointed, to be a councillor or of the death, resignation or               B
      disqualification of a councillor, or of his becoming incapable of
      acting previous to the day for retirement, there shall be deemed to
      be a casual vacancy in the office and such vacancy shall be filled
      up, as soon as it conveniently may be, by the election or
      appointment, as the case may be, of a person thereto, who shall             C
      hold office so long only as the councillor in whose place he is
      elected or appointed would have been entitled to hold it, if the
      vacancy had not occurred.”
      20. Section 34 as it originally existed in Act, 1888 was to the
following effect:                                                                 D
      “34. Procedure of election if fails
      1. If from any cause no councillor is elected at any general election,
      not being one of the first general elections held in accordance
      with this Act, the retiring councillor or councillors shall, if willing
      to serve, be deemed to be re-elected.                                       E
      2. If, in any such case, the retiring councillor is not willing to serve,
      or some of the retiring councillors are willing to serve and some
      are not, or
      if, in the case of a first general election held in accordance with
                                                                                  F
      this Act, or of an election to fill a casual vacancy, no councillor is
      elected, or
      if, in the case of any election, an insufficient number of councillors
      are elected,
      the commissioner shall without delay inform the corporation of              G
      the circumstances, and thereupon the corporation, so far as it is
      constituted, may appoint a duly qualified person to fill the vacancy,
      or each vacancy, as the case may be, and if the corporation shall
      fail within fifteen days after receipt of such information to appoint

                                                                                  H
1136             SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A           a person as aforesaid, the commissioner shall appoint another day
             for holding a fresh election.
             3. A fresh election held under this section shall be held subject in
             all respects to the same provisions as if it were an election to fill a
             casual vacancy.”
 B            21. The Scheme of Act, 1888 as it originally stood provided for
       retiring councillors, who are willing to serve to be deemed to be re-
       elected, in case no councillor is elected at any general election.
             22. The above provisions were made with intention to avoid the
       trouble and expense of holding a fresh election after the general election
 C     had proved infructuous. The Statement of Objects and Reasons of Bill
       No. XXXVI of 1935 noticed that owing to the keen interest in the Local
       Self Government at the present day, there is no likelihood of a sufficient
       number of candidates not being available to contest an election. The
       Statement of Objects and Reasons of 1935 Amendment also
 D     contemplates that an elector should be given an opportunity of returning
       other representatives of their own choice subject to contingencies
       contemplated in Sections 33 and 34.
              23. In Section 34 as noticed above, one of the contingencies is
       provided in sub-section (1) of Section 34 for appointing another date of
 E     holding fresh election when no other candidate who may be deemed to
       be elected is available. Thus, when a candidate who can be deemed to
       be elected is available, fresh election should not be immediately initiated.
               24. The addition of second part in Section 9 by 1935 Amendment
       that “the casual vacancy in the office of an elected councillor shall be
 F     filled up in the manner provided in Section 34” has to be given meaning.
       Sections 9 and 34 has to be read together to find out the meaning and
       purpose and to interpret both the provisions to harmonise the statutory
       Scheme. It is true that Section 34 contemplates one of the contingencies
       for holding a fresh election when election of any or all of the councillors
       is set aside under sub-section (2) of Section 33.
 G
              25. When a casual vacancy arises due to disqualification of a
       returned candidate, whether that is not covered by Section 34(1)? In the
       cases before us, the returned candidate is disqualified by invalidation of
       caste certificate, the outcome of invalidation of caste certificate is same
       as setting aside their election. When we read Section 9 and Section 34,
 H
     NITIN BANDOPANT SALAGRE v. STATE ELECTION                                1137
       COMMISSION & ANR. [ASHOK BHUSHAN, J.]

the event of invalidation of caste certificate of returned candidate shall    A
also be covered by Section 34(1) and contingency as provided under
Section 34(1) shall be held applicable in that event.
        26. Section 33(2) incorporated the statutory Scheme that if Chief
Judge of Small Causes Court finds that the person whose election is
objected to is disqualified for being a councillor, or if he finds that the   B
election is not a valid election, he shall set it aside. In either case, he
shall direct that the candidate in whose favour the next highest number
of valid votes has been recorded shall be deemed to have been elected.
Thus, the statutory Scheme recognises the person, who has secured
second highest votes to be deemed to be elected, which provision has
been incorporated for specific purpose and object. It is a matter of          C
common knowledge that holding of election is a cumbersome process
involving lot of time, involvement of manpower and expenditure.
Municipal Corporations under the Act, 1888 has been entrusted with
large number of powers and jurisdiction and every five years, the election
for constituting Municipal Corporation is to be undertaken. The right in      D
a person, who has secured second highest number of votes has been
recognised to obviate holding of fresh elections. Thus, the Legislative
Scheme itself recognises declaration of a person securing second highest
votes as deemed to have been elected. The said purpose and object has
to be given effect to while interpreting the provisions of the Act. As
noticed above, when second part of Section 9 specifically provides for        E
filling up of the casual vacancy in the manner as provided in Section 34,
the question as to “whether there is no other candidate, who can be
deemed to be elected in his place” becomes relevant and necessary.
For answering the said question, the State Election Commission has to
apply its mind and look into all necessary facts pertaining to ward in        F
question. It is further relevant to notice that the requirement of finding
out answer to the above question is relevant when an election petition
has already been filed by a person claiming that there is a candidate,
who can be deemed to be elected in place of returned candidate. When
there are no election petitions filed under Section 33 or where no prayer
is made for declaring candidate obtaining second highest votes, the above     G
question becomes irrelevant and has no bearing on filling up of the casual
vacancy. The use of the expression in Section 9, i.e., “as soon as it
conveniently may be” indicates that Statute gives discretion to the State
Election Commission to hold byelections for a casual vacancy. Statute
                                                                              H
1138            SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A     does not mandate holding of byelections, i.e., filling up of casual vacancy
       as soon as the casual vacancy arises. Discretion has been given to the
       Commission for a purpose and object.
              27. One of the factors in taking a decision regarding filling up of
       the casual vacancy is as to whether there is no other candidate, who can
 B     be deemed to be elected in place of returned candidate. All these aspects
       have to be looked into and considered by State Election Commission
       before proceeding to hold elections. But we make it clear that the
       statutory Scheme does not indicate that by mere filing of an election
       petition questioning the election of returned candidate of ward and seeking
       a declaration in favour of the election petitioner shall ipso facto put an
 C     embargo in the right of State Election Commission to proceed to fill up
       the casual vacancy. The State Election Commission has been statutorily
       obliged to find out as to whether there is no other candidate, who can be
       deemed to be elected in place of returned candidate, only thereafter it is
       obliged to hold fresh elections. It postulates a decision making process
 D     by due application of mind considering all relevant and necessary factors,
       eschewing the irrelevant.
              28. Now, we come to the judgments of this Court, which have
       been relied by learned counsel for the appellant delivered in reference to
       the Representation of the People Act, 1951. Section 150 of the
 E     Representation of the People Act, 1951 deals with casual vacancies in
       the State Legislative Assemblies, which is as follows:-
             “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
 F           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
 G           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)
 H
     NITIN BANDOPANT SALAGRE v. STATE ELECTION                                  1139
       COMMISSION & ANR. [ASHOK BHUSHAN, J.]

      shall specify that the person to fill that seat shall belong to the       A
      Scheduled Castes or to such Scheduled Tribes, as the case may
      be.”
       29. In D. Sanjeevayya Vs. The Election Tribunal, Andhra
Pradesh and Others (supra) provisions of Section 150 in context of
Sections 84 and 98(c) came to be considered. In the above case, appellant       B
had resigned his seat in the Legislative Assembly and thereafter filed a
writ petition in Andhra Pradesh High Court praying for a writ in the
nature of mandamus commanding the Election Commission of India to
act under Section 150 of the Act and call upon the constituency to elect
a person for the purpose of filling up the vacancy caused by resignation.
The Election Petition No.180 of 1962 was filed, which was pending in            C
the Election Tribunal, Hyderabad. One of the prayers was also to stay
further proceedings in the trial of the election petition. In paragraph
No.5 of the judgment, following was observed:-
      “5. It is therefore not permissible, in the present case, to interpret
      Section 150 of the Act in isolation without reference to Part III of      D
      the Act which prescribes the machinery for calling in question the
      election of a returned candidate. When an election petition has
      been referred to a Tribunal by the Election Commission and the
      former is seized of the matter, the petition has to be disposed of
      according to law. The Tribunal has to adjudge at the conclusion of        E
      the proceeding whether the returned candidate has or has not
      committed any corrupt practice at the election and secondly, it
      has to decide whether the second respondent should or should not
      be declared to have been duly elected. A returned candidate cannot
      get rid of an election petition filed against him by resigning his
      seat in the Legislature, whatever the reason for his resignation          F
      may be. In the present case, the election petition filed by
      Respondent 2 has prayed for a composite relief namely, that the
      election of the appellant should be declared to be void and that
      Respondent 2 should be declared to be duly elected. In a case of
      this description the Election Commission is not bound immediately         G
      to call upon the Assembly constituency to elect a person for the
      purpose of filling the vacancy caused by the resignation of the
      appellant. It is open to the Election Commission to await the result
      of the election petition and thereafter decide whether a bye-election
      should be held or not. If the election petition is ultimately dismissed
                                                                                H
1140             SUPREME COURT REPORTS                          [2019] 10 S.C.R.


 A           or if the election is set aside but no further relief is given, a bye-
             election would follow. If, however, Respondent 2 who filed the
             election petition or any other candidate is declared elected the
             provisions of Section 150 of the Act cannot operate at all because
             there is no vacancy to be filled. In the present case, therefore, we
             hold that the Election Commission is not bound under Section 150
 B
             of the Act to hold a bye-election forthwith but may suspend taking
             action under that section till the result of the election petition filed
             by Respondent 2 is known.”
              30. This Court held in the above case that it is open to the Election
       Commission to await the result of the election petition and thereafter
 C     decide whether a byelection should be held or not. This Court held that
       Election Commission is not bound under Section 150 to hold a byelection.
              31. Another judgment, which has been relied by the appellant is
       judgment of this Court in Election Commission of India Vs. Telnagana
       Rastra Samiti and Another (supra). In the above case, writ petition
 D     was filed by the respondent challenging the decision of the Commission
       not to hold byelection to two constituencies in the State of Andhra
       Pradesh. Twelve members of the Assembly had resigned. Commission
       issued a press note notifying the holding of byelections for ten vacancies
       but two vacancies were not notified since election petitions were pending
 E     in which election petitioners had sought to be declared as elected. Writ
       petition seeking a direction to hold election was filed. The High Court in
       the writ petition issued direction to the Commission to hold election. The
       Election Commission of India being aggrieved by that judgment had come
       up in this Court. Reliance was placed on Section 151A, which was
       inserted in the Act by amendment. The judgment of D. Sanjeevayya
 F     case was referred to and relied. This Court laid down following in
       paragraph No.46:-
             “46. We are, therefore, of the firm view that the introduction of
             Section 151-A in the Constitution did not alter the position as far
             as the provisions of Section 84 and consequently Sections 98(c)
 G           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
 H           Section 151-A of the 1951 Act. Article 190(3)(b) of the Constitution
      NITIN BANDOPANT SALAGRE v. STATE ELECTION                                1141
        COMMISSION & ANR. [ASHOK BHUSHAN, J.]

      merely indicates that if a Member of a House of a Legislature of         A
      a 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
                                                                               B
      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           C
      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.
       The above judgments of this Court do recognise a discretion in
Election Commission to hold a byelection.                                      D
       32. It is relevant to notice that Scheme in the Representation of
the People Act, 1951 is little different with regard to filling up of casual
vacancies. Under Section 101 enumerate grounds for which a candidate
other than the returned candidate may be declared to have been elected,
which are as follows:-                                                         E
      “101. Grounds for which a candidate other than the returned
      candidate may be declared to have been elected.—If any
      person who has lodged a petition has, in addition to calling in
      question the election of the returned candidate, claimed a
      declaration that he himself or any other candidate has been duly         F
      elected and the High Court is of opinion—
          (a) that in fact the petitioner or such other candidate received
               a majority of the valid votes; or
          (b) that but for the votes obtained by the returned candidate by
               corrupt practices the petitioner or such other candidate        G
               would have obtained a majority of the valid votes,
      the High Court shall, after declaring the election of the returned
      candidate to be void declare the petitioner or such other candidate,
      as the case may be, to have been duly elected.”
                                                                               H
1142            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


 A           33. As per Section 101, there are some limited grounds on which
       a candidate other than the returned candidate may be declared to have
       been elected. The judgments of this Court in D. Sanjeevayya (supra)
       and Election Commission of India (supra) have to be read dealing
       with Scheme under the Representation of the People Act, 1951.
       Judgments of this Court in the above two cases being dealing with
 B
       Representation of People Act and the statutory Scheme for electing
       councillor in the Municipal Corporation being different, we have to rest
       our judgment on the statutory Scheme of Act, 1888.
             34. Another judgment relied by the appellant is Pramod Laxman
       Gudadhe Vs. Election Commission of India and Others (supra),
 C     which is again on Representation of People Act, 1951 and observations
       made by this Court have to be confined to the statutory Scheme of the
       Representation of People Act. This Court noticed in paragraph No.16
       of the above judgment earlier judgment of this Court in Election
       Commission of India case, in which following has been laid down:-
 D           “16. The Court in Election Commission of India case, (2011)
             1 SCC 370 went on to say that the introduction of Section 151-A
             did not alter the position as far as the provisions of Section 84 and,
             consequently, Sections 98(c) and 101(b) of the Act are concerned,
             although a casual vacancy may have occurred within the meaning
 E           of Section 150 of the Act. The Court made a distinction between
             the two categories of vacancies, namely, vacancies in which
             election petitions had been filed and are pending and other
             vacancies where no such cases were filed and pending. The Court
             opined that in the first category of cases, the vacancies could not
             have been treated to be available for the purposes of filling up
 F           within the time prescribed under Section 151-A of the Act merely
             because a member of the House of a Legislature of a State had
             resigned and the same had been accepted by the Speaker. To
             arrive at the said conclusion, emphasis was laid on Section 84 of
             the Act. In the second category of cases, the Court pronounced
 G           that the vacancies would have to be construed as clear vacancies
             warranting action under Section 151-A of the Act.”
             35. We have already observed that applicability of Section 34
       with respect to filling up of casual vacancy under Section 9 shall arise
       only when an election petition is already pending and has been filed by a
 H     candidate claiming declaration in favour of a person, who has secured
     NITIN BANDOPANT SALAGRE v. STATE ELECTION                                  1143
       COMMISSION & ANR. [ASHOK BHUSHAN, J.]

the second highest votes. When there is no election petition pending            A
seeking such declaration, casual vacancy under Section 9 has to be filled
up without any impediment. We further make it clear that when Section
9 second part provides that casual vacancy has to be filled up in the
manner as provided under Section 34, the conditions enumerated in
Section 34 has to be strictly construed. Thus, when election of any
                                                                                B
councillor is set aside or it fails, only then Section 34 has to be looked
into. Section 34 may not be attracted in all categories of casual vacancies
as referred to in Section 9 but present case being a case where returned
candidates having been declared disqualified due to invalidation of caste
certificate, i.e., the election stand in law annulled and seat declared
vacant, the applicability of Section 34 cannot be denied.                       C
        36. From the foregoing discussions, with regard to statutory
Scheme under Act, 1888 regarding filling up of casual vacancy, we arrive
at following conclusions:-
      (i) By mere pendency of election petition filling up of casual
          vacancy is not to be deferred or postponed. State Election            D
          Commission before proceeding to fill up a casual vacancy under
          Section 9 has to advert to the statutory prescription under
          Section 34 and take a conscious decision by due application
          of mind and thereafter to proceed to fill up vacancy arose. In
          each case of casual vacancy, there may be different                   E
          circumstances without adverting to which State Election
          Commission cannot decide to fill up the casual vacancy.
      (ii) A casual vacancy caused due to invalidation of caste certificate
           of returned candidate has to be filled up in a manner provided
           in Section 34 of Act, 1888.                                          F
      (iii) When an election petition has already been filed challenging
            the election of returned candidate since before invalidation of
            his or her caste certificate in which election petition prayer is
            also made to declare the candidate securing second highest
            votes as deemed elected, the State Election Commission may          G
            not call for fresh election without considering the above aspect
            of the matter.
      37. In the present cases, filing of affidavit having been dispensed
with by the High Court in the writ petition, there is no affidavit of State
Election Commission on record to indicate as to whether State Election
                                                                                H
1144                SUPREME COURT REPORTS                       [2019] 10 S.C.R.


 A     Commission has adverted to Section 34 before starting process of holding
       byelections to fill up the casual vacancy or not. We are of the view that
       the Commission may be asked to take a fresh decision regarding holding
       of byelections to fill up casual vacancy in these cases.
              38. Although Commission has issued notification dated 09.05.2019
 B     on subject regarding preparation of voters list for byelection for filling up
       vacancies of Municipal Corporation but no notification having yet been
       issued fixing date for byelection of wards in question, we are of the view
       that State Election Commission may take a fresh decision before issuing
       any notification fixing dates for holding a byelection of wards in question
       keeping in view the observations and conclusions as above.
 C
              39. In the result, the appeals are allowed, impugned judgment of
       the High Court is set side, the State Election Commission may take a
       fresh decision regarding holding of by-election of the wards in question
       keeping in view the observations and conclusions as made above.

 D
       Ankit Gyan                                                    Appeals allowed.




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