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The Supreme Court on 5th August advised the Maharashtra State Election Commission to reconsider its decision of holding byelection for the post of councillor when a second candidate with the next highest votes is available, with corresponding statutory rule under Section 34(1) of the Mumbai Municipal Corporation Act, 1888.

The Division Bench of Justice Ashok Bhushan and Justice Navin Sinha were posed with the following facts: The general elections for electing councillor for Bombay Municipal Corporation returned a candidate who was found disqualified due to invalid caste certificate. The next candidate with higher votes contended for the position. The Election Commission however notified by-election for the councillor post.

In all the writ petitions, commonly tagged as Nitin Bandopant Salagre Vs. The State Election Commission, one of the reliefs 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.

Court was posed with the question that, “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 question, has effect of postponing the byelections and the State Election Commission is denuded from proceeding with holding byelections”

Section 9 of the Mumbai Municipal Corporation Act, 1888 contemplates filling up of the casual vacancy wherein a rider has been incorporated by the words, “as soon as it conveniently may be”. Court has examined the purpose and meaning of this expression. While litigation is a complex process of hearings and appeals, the State Election Commission took a call on the situation at hand.

One of the conditions incorporated in sub-section(1) of Section 34 of the 1888 Act 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 is not to be appointed.

Keeping the opinion of court in D. Sanjeevayya Vs. The Election Tribunal, Andhra Pradesh and Others (1967) in mind, as also the fact that it has been consistently relied on as an authority even as late as in 2018 in Pramod Laxman Gudadhe Vs. Election Commission of India and Others, Court recognizes a discretion in Election Commission to hold a byelection. Court has thus held 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 drawn by the court in this judgment.

— India Legal Bureau

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