Case Note & Summary
The Supreme Court dismissed appeals against the Bombay High Court's judgment upholding the State Election Commission's notification for byelections to fill casual vacancies in the Mumbai Municipal Corporation. The appellants, who had secured second highest votes in the 2017 general elections, challenged the notification after the elected candidates were disqualified due to invalid caste certificates. They argued that their pending election petitions under Section 33 of the Mumbai Municipal Corporation Act, 1888, seeking to be declared elected, should prevent the Commission from holding byelections. The Court held that Section 9 of the Act mandates filling casual vacancies as soon as conveniently possible, and the pendency of an election petition under Section 33 does not create a bar. The two provisions operate independently: Section 9 deals with filling vacancies, while Section 33 provides a remedy for election disputes. The Court noted that even if a byelection is held and a new candidate is elected, the election petition, if allowed, would result in the petitioner being deemed elected from the original election date, and the byelection candidate would hold office only for the remainder of the original term. Thus, there is no conflict or legal impediment. The appeals were dismissed, and the byelection notification was upheld.
Headnote
A) Municipal Law - Casual Vacancy - Byelection - Section 9, Mumbai Municipal Corporation Act, 1888 - The court held that the disqualification of a returned candidate creates a casual vacancy under Section 9, which must be filled as soon as conveniently may be, and the pendency of an election petition under Section 33 does not bar the State Election Commission from issuing a notification for byelection. (Paras 9-10)
B) Municipal Law - Election Petition - Declaration as Elected - Section 33, Mumbai Municipal Corporation Act, 1888 - The court held that the remedy under Section 33(2) for a petitioner claiming to be declared elected is independent of the filling of casual vacancy under Section 9, and the two provisions operate in separate spheres. (Paras 10-11)
C) Municipal Law - Conflict of Representation - No Conflict - Sections 9 and 33, Mumbai Municipal Corporation Act, 1888 - The court held that there is no conflict if a byelection is held and a new candidate is elected while an election petition is pending, as the election petition, if allowed, would result in the petitioner being deemed elected from the date of the original election, and the byelection candidate would hold office only until the original term ends. (Para 12)
Issue of Consideration
Whether the State Election Commission can issue a notification for holding a byelection to fill a casual vacancy under Section 9 of the Mumbai Municipal Corporation Act, 1888, when an election petition under Section 33 of the same Act is pending, wherein the petitioner (who secured second highest votes) claims to be declared elected.
Final Decision
Appeals dismissed. The judgment of the Bombay High Court dated 10.06.2019 is upheld. The State Election Commission's notification dated 09.05.2019 for byelection is valid and not barred by pendency of election petitions under Section 33 of the Mumbai Municipal Corporation Act, 1888.
Law Points
- Casual vacancy
- byelection
- election petition
- disqualification
- Section 9 Mumbai Municipal Corporation Act 1888
- Section 33 Mumbai Municipal Corporation Act 1888
- no bar on byelection pending election petition
Case Details
Civil Appeal No. 5855 of 2019 (arising out of SLP (C) No. 15194 of 2019) and connected appeals
Nitin Bandopant Salagre, Geeta Kiran Bhandari, Sandeep Raju Naik, Eknath (Shankar) Dnyandeo Hundare
The State Election Commission & Anr., The State Election Commission & Ors.
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Nature of Litigation
Civil appeals against dismissal of writ petitions challenging notification for byelection to fill casual vacancy in Municipal Corporation ward.
Remedy Sought
Appellants sought quashing of notification dated 09.05.2019 for byelection and direction to expedite election petition.
Filing Reason
Appellants, who secured second highest votes in general election, claimed that pending election petition under Section 33 of MMC Act, 1888 seeking declaration as elected, the State Election Commission should not hold byelection.
Previous Decisions
Bombay High Court dismissed writ petitions on 10.06.2019. Earlier, District Caste Certificate Scrutiny Committee invalidated caste certificate of returned candidate on 19.08.2017; writ petition against disqualification dismissed on 02.04.2019; SLP dismissed on 24.04.2019.
Issues
Whether the State Election Commission can issue notification for byelection under Section 9 of MMC Act, 1888 when an election petition under Section 33 is pending.
Whether the pendency of election petition seeking declaration as elected candidate bars the holding of byelection.
Submissions/Arguments
Appellants: Since they secured second highest votes and returned candidate is disqualified, they are entitled to be declared elected under Section 33; byelection should not be held pending election petition; reliance on D. Sanjeevayya, Telnagana Rastra Samiti, Pramod Laxman Gudadhe.
Respondents: Filing of election petition does not postpone filling of casual vacancy; term of councillor is five years and ward cannot remain unrepresented; Section 9 and Section 33 operate independently; no specific provision bars byelection.
Ratio Decidendi
The disqualification of a returned candidate creates a casual vacancy under Section 9 of the Mumbai Municipal Corporation Act, 1888, which must be filled as soon as conveniently may be. The pendency of an election petition under Section 33 of the Act, wherein a petitioner claims to be declared elected, does not bar the State Election Commission from issuing a notification for byelection. The two provisions operate in separate spheres and there is no conflict even if a byelection is held and a new candidate is elected, as the election petition, if allowed, would result in the petitioner being deemed elected from the original election date, and the byelection candidate would hold office only for the remainder of the original term.
Judgment Excerpts
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.
Section 9 of the Act, 1888 deals with casual vacancy...
Section 33 of the Act deals with election petitions to be heard and disposed of by the Chief Judge of the Small Causes Court...
Procedural History
General elections held in February 2017; returned candidate declared elected on 23.02.2017; appellant filed complaint and election petition; caste certificate invalidated on 19.08.2017; writ petition against disqualification dismissed on 02.04.2019; SLP dismissed on 24.04.2019; returned candidate disqualified on 05.04.2019; State Election Commission issued notification for byelection on 09.05.2019; appellants filed writ petitions in Bombay High Court; High Court dismissed writ petitions on 10.06.2019; appeals filed in Supreme Court.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: Section 9, Section 33, Section 34, Section 6A, Section 28F, Section 28
