Summary
Pendency of an election petition does not automatically bar a municipal byelection. Where a councillor’s caste certificate is invalidated and a previously filed election petition seeks a declaration that the next-highest candidate was elected, the State Election Commission must consider that claim and the statutory conditions before calling a fresh election. The High Court judgment was set aside and the Commission was directed to reconsider before fixing byelection dates; the runners-up were not declared elected by this judgment.
Issues
- Whether pending election petitions seeking a declaration for the next-highest candidate automatically prevent byelections after caste-certificate invalidation.
- What statutory considerations must precede the Commission’s decision.
Provisions considered
- Sections 9, 33 and 34, Mumbai Municipal Corporation Act, 1888Read together to require consideration of whether another candidate may be deemed elected before filling a vacancy caused by caste-certificate invalidation, where a qualifying election petition is already pending. (¶¶ 9–11, 16–27, 35–36)
Held
- Disqualification upon invalidation of a returned candidate’s caste certificate creates a casual vacancy. In these circumstances, the requirement in section 9 to follow section 34 attracts its condition concerning another candidate who can be deemed elected. (¶¶ 15–16, 23–26, 35–36)
- Mere filing or pendency of an election petition does not automatically suspend the Commission’s power. The Commission must nevertheless make a conscious decision, considering the pending claim and relevant circumstances rather than proceeding without application of mind. (¶¶ 26–27, 36)
- The relevant claim is an election petition already filed before caste-certificate invalidation seeking a declaration for the next-highest candidate. Without a pending petition seeking such a declaration, that impediment does not arise. Section 34 does not necessarily apply to every category of casual vacancy. (¶¶ 26, 35–36)
- Authorities under the Representation of the People Act had to be understood within that Act’s different statutory scheme. The present decision rested on the municipal statute. (¶ 28–34)
- The record did not establish that the Commission had considered section 34. Since it had begun voter-list preparation but had not yet fixed polling dates, a fresh decision was required before notifying those dates. (¶ 37–39)
Result
Appeals allowed and High Court judgment set aside. State Election Commission to take a fresh decision about the ward byelections, applying the stated statutory considerations before notifying election dates. No automatic stay of all byelections or declaration electing the appellants granted.