R.V. Raveendran, J.
1. The petitioner is a permanent resident of Karwar City and a voter of No. 172, Karwar Assembly Constituency. In the 1999 elections, results of which were declared on 6-10-1999, one Vasanth Kamalakar Asnotikar was declared as having been elected. That has been challenged by the 4th respondent in Election Petition No. 19 of 1999 pending on the file of this Court. In the said election petition, the 4th respondent has sought the following reliefs:
(i) A declaration that the election of V.K. Astonikar to fill Seat No. 172, Karwar Assembly Constituency is void under Section 100(1)(b) of the Representation of People Act, 1951, for having committed corrupt practice under Section 123(3) of the said Act;
(ii) For a declaration that he has been duly elected from the said Constituency under Section 101(a) of the Act and declare him as having been elected under Section 101(b) of the Act for having secured more number of valid votes than the said V.K. Astonikar who has been declared as elected on account of the corrupt practice by him.
2. During the pendency of the said petition, the elected candidate, namely, V.K. Astonikar was murdered on 19-2-2000. Having regard to the provisions of Sections 112 and 116 of the Representation of the People Act. 1951 ('Act', for short), the said election petition did not abate. Further, in spite of the death of the elected candidate, if the 4th respondent herein who has filed the election petition is able to establish that the elected candidate was guilty of a corrupt practice, and further establish that but for the vote obtained by the returned candidate by such corrupt candidate, he would have obtained majority of the valid votes, he would be entitled to a declaration that he was the duly elected at the said election. It is stated that the evidence has been completed in the said election petition and the matter is at the stage of arguments.
3. The petitioner filed this writ petition on 14-9-2000 when no bye-election was held to fill the said seat for more than six months. The petitioner contended that having regard to Section 151-A of the Act, a bye-election for filling the vacancy caused on account of the elected member having died, shall be held within a period of six months from the date of occurrence of the vacancy and there was no justification for the Election Commission not inviting the constituency to elect a fresh representative. It is contended that failure to hold the bye-election would result in the citizens of the Constituency not having the benefit of an elected representative representing the Constituency in the Legislative Assembly; and that therefore the interests of the Constituency is adversely affected. According to the petitioner, the matter was taken up by the residents of the area as also by the local Member of Parliament with the Election Commissioner (first respondent); and the first respondent has sent a communication dated 26-7-2000 to the local Member of Parliament, stating that the bye-election cannot be held in view of the pendency of Election Petition No. 19 of 1999 filed by the 4th respondent with a prayer that he should be declared as elected by quashing the election of V.K. Astonikar.
4. Feeling aggrieved, the petitioner has filed this petition for quashing the said communication dated 26-7-2000 and seeking a direction to respondents 1 to 3 to hold an election for the Karwar Assembly Constituency immediately.
5. Petitioner contends that the Legislative intent in inserting Section 151-A of the Act, by Central Act 21 of 1996 is that no Constituency shall remain unrepresented for a period of more than six months, in the event of any casual vacancy, and therefore the Election Commission is bound to hold a bye-election, on the death of an elected member, within six months; and pendency of any election petition will not and shall not come in the way of compliance with Section 151-A. It is submitted that as on date, nearly half of the 5 year term has expired and any further delay on the ground of pendency of the election petition or any appeal therefrom would result in the Constituency remaining unrepresented for the entire term and that would be prejudicial to the interest of the public. It is also contended that the holding of Bye-election, resulting in the Constituency being represented by an elected representative will be in the interest of the Constituency and general public; and the relief claimed in the election petition by the 4th respondent being one in private interest, such private interest of the 4th respondent should yield to the public interest which requires that no Constituency shall remain without an elected representative for a long period.
6. On the other hand the respondents contend that the election petition filed by the 4th respondent challenging the election of V.K. Astonikar is pending and one of the prayers in the said petition is for a declaration that the 4th respondent has been duly elected under Section 101; and unless the said election petition is dismissed, it will not be proper to hold a bye-election.
7. The question that arises for consideration is whether the Election Commission is justified in postponing the bye-election, on the ground that the election petition filed by the 4th respondent is pending.
8. We may refer to the relevant sections in the Act at the outset.
8.1 Section 84 which specifies the relief that may be claimed by a petitioner in an election petition, reads thus:
"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".
8.2 Section 98 specifies the order that can be made at the conclusion of the trial of an election petition. It is extracted below:
"At the conclusion of the trial of an election petition the High Court shall make an order:
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected".
8.3 Section 101 refers to the grounds on which a candidate other than the returned candidate may be declared to have been elected. It reads thus:
"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 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 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".
8.4 Section 116 makes it clear that an election petition does not abate on the death of the respondent. It reads thus:
"116. Abatement or substitution on death of respondent.-If before the conclusion of the trial of an election petition, the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, the High Court shall cause notice of such event to be published in the Official Gazette, and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms as the High Court may think fit".
9. The same question (which arises in this petition) arose for consideration of the Supreme Court in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh and Ors., . In that case, one P. Rajaratna Rao and D. Sanjeevaiah were the contesting candidates and Sanjeevaiah was declared as elected. Rajaratna Rao challenged the said election by filing an election petition on the ground that various corrupt practices had been committed by Sanjeevaiah and claiming two-fold relief, namely, the election of Sanjeevaiah should be declared void and that he should be declared as having been elected. During the pendency of the said election petition Sanjeevaiah was appointed as a Minister in the Central Cabinet and was also elected as a Member of the Rajya Sabha. Consequently, he resigned his seat in the Legislative Assembly on 8-4-1964, On 2-9-1965 Sanjeevaiah filed a writ petition before the Andhra Pradesh High Court seeking a direction to the Election Commission to act under Section 150 of the Act and call upon the Kodumuru Constituency to elect a person for the purpose of filling the vacancy caused by his resignation. The said writ petition was dismissed. The Supreme Court dismissed the appeal therefrom on the following reasoning:
"It was argued for the appellant that Section 150 of the Act contemplates three contingencies . . . and upon the happening of any one of them an obligation is cast upon the Election Commission to take steps to hold a bye-election forthwith. In the present case, it was pointed out that the first contingency has arisen namely, the seat of a member became vacant upon his resignation and it was manifestly the duty of the Election Commission to take steps forthwith to hold a bye-election to fill the vacancy irrespective of the fact that an election petition was pending in which the second respondent had asked for a declaration that the election of the appellant was void and also for the relief that he himself should be declared to be duly elected.
We are unable to accept the argument of the appellant as correct. In our opinion, the provisions of Section 150 of the Act must be interpreted in the context of Sections 84 and 98(c) and other relevant provisions of Part III of the same Act If the interpretation contended for by the appellant is accepted as correct the vacancy must be filled by a bye-election as soon as a member resigns his seat notwithstanding the pendency of an election petition challenging his election, If the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that he himself had been duly elected there will be two candidates representing the same constituency at the same time, one of them declared to be duly elected at the General Election and the other declared to have been elected at the bye-election and an impossible situation would arise. It cannot be supposed that Parliament contemplates such a situation while enacting Section 150 of the Act. Parliament could not have intended that the provisions of Part VI of the Act pertaining to election petitions, should stand abrogated as soon as a member resigns his seat in the Legislature. It is therefore not permissible, in the present case, 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. The Tribunal has to adjudge at the conclusion of 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. ... 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 the respondent 2 should be declared to be duly elected. In a case of this description the Election Commission is not bound immediately 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 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 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".
10. The facts are the same in this case, the only difference is in that case the vacancy arose on account of resignation, whereas in this case, it arose on account of death of the elected candidate. The reasoning and decision of the Supreme Court in D. Sanjeevayya's case, supra, is a complete answer to the contention of the petitioner. A joint reading of Sections 150, 84, 98(c), 101 and 116 of the Act clearly shows that the Election Commission need not hold a bye-election forthwith on the arising of a vacancy, if an election petition is pending where one of the prayers is for a declaration that the petitioner or any other candidate has been duly elected. Therefore, the Election Commission is justified in postponing action under Section 150, until disposal of the Election petition filed by the 4th respondent. If the 4th respondent succeeds fully and is declared as having been duly elected, obviously the question of holding a bye-election will not arise.
11. Learned Counsel for the petitioner contended that the decision in D. Sanjeevayya's case, supra, was on the basis that there was no time limit fixed under the Act for holding the bye-election relying on the following observations:
"This view is also supported by the circumstance that no time-limit is fixed in the section for the Election Commission to call upon the Assembly Constituency concerned to elect a person for filling the vacancy. Nor does the section say that the Election Commission shall hold a bye-election "forthwith" or "immediately". It is also conceivable that there may be a situation in which the Election Commission may not hold a bye-election at all or may hold the bye-election after a delay of 2 or 3 months. Take for instance, a case where a member resigns his seat in the Legislative Assembly of a State 3 months before General Election is due to be held. It cannot be suggested that the Election Commission is bound under Section 150(1) of the Act to hold a bye-election forthwith in that vacancy. Take also another instance where a member of an Assembly of Himachal Pradesh resigns his seat during winter. It cannot be argued that the Election Commission is bound to issue a notification for a bye-election forthwith though the climatic conditions are unsuitable for holding such a bye-election".
He submitted that the decision in D. Sanjeevayya's case, supra, was rendered when there was no provision in the Act specifying a time-limit for the Election Commission to call upon the Constituency to elect its representative to fill the vacancy; that subsequent to the said decision, the Act had been amended by Amendment Act 21 of 1996, with effect from 1-8-1996 whereby Section 151-A has been inserted fixing the time-limit for filling the vacancies referred to in Section 150; and that having regard to the stipulation of time-limit of six months fixed under Section 151-A of the Act, the ratio in D. Sanjeevayya's case, supra, will no longer apply.
12. The said contention of the petitioner would have merited consideration and acceptance if the Supreme Court had decided the matter only on the ground that no time-limit was fixed under the Act for the Election Commission to call upon the Assembly Constituency concerned to elect its representative for filling the vacancy, or if Section 151-A had made it clear that the bye-election should be held within the specified time-limit irrespective of pendency of any election petition seeking declaration that someone other than the elected candidate is duly elected. Neither is the case. In D. Sanjeevayya's case, supra, Supreme Court decided the matter mainly on the ground that Section 150 could not be read in isolation but will have to be read with Sections 84 and 98(c) and if so done, the only inference that can be drawn is that the Election Commission will have to suspend taking action as required under Section 150, until the result of the election petition become known. The reference to non-fixation of time-limit under the Act for holding the election is only an additional aspect referred to by the Supreme Court to support the finding already reached. Therefore, the mere fact that a time has been fixed by introduction of Section 151-A does not mean that the main ground on which the Supreme Court decided the matter ceases to exist.
13. Section 151-A inserted by Act 21 of 1996 reads thus:
"151-A. Time-limit for filling vacancies referred to in Sections 147, 149, 150 and 151.--Notwithstanding anything contained in Sections 147, 149, 150 and 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".
Section 151-A 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 151-A 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 someone else should be declared as having been elected under Section 84 read with Section 101 of the Act.
14. While we appreciate the serious consequences of a Constituency remaining unrepresented for a considerable time, on account of the death of the elected representative, we cannot ignore the consequence of applying Section 151-A to a situation where an election petition is pending seeking a declaration that the petitioner therein is the duly elected candidate. The law laid down by the Supreme Court is directly applicable in such a situation. The remedy if at all any, lies by way of a further amendment to the Act or by requesting the Court seized of the election petition to dispose off the matter early.
15. The petitioner is not entitled to the reliefs sought. The petition is therefore dismissed.