NDLI: Nitin Bandopant Salagre Vs. The State Election Commission & Anr.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	ss. 9 1888 Mumbai Municipal Corporation Act 33 and 34 Filling of casual vacancy
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Mumbai Municipal Corporation Act, 1888 (3 of 1888)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 by election 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 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.
Judge	Hon'ble Mr. Justice Ashok Bhushan
Neutral Citation	2019 INSC 859
Petitioner	Nitin Bandopant Salagre
Respondent	The State Election Commission & Anr.
SCR	[2019] 10 S.C.R. 1121
Judgement Date	2019-08-05
Case Number	5855

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Nitin Bandopant Salagre Vs. The State Election Commission & Anr.

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