NITIN BANDOPANT SALAGRE versus THE STATE ELECTION COMMISSION & ANR.

Citation: [2019] 10 S.C.R. 1121 · Decided: 05-08-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Appeal(s) allowed

cites 3 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
1121
NITIN BANDOPANT SALAGRE
v.
THE STATE ELECTION COMMISSION & ANR.
(Civil Appeal No.5855 of 2019)
AUGUST 05, 2019
[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
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
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
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
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
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
[2019] 10 S.C.R. 1121
  1121
A
B
C
D
E
F
G
H
1122
SUPREME COURT REPORTS
[2019] 10  S.C.R.
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
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
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 –
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
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
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
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 h

Excerpt shown. Read the full judgment & AI analysis in Lexace.