THOMAS MATES GUDINHO Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(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 Astonikar was declared as having been elected. That has been challenged by the 4th respondent in Election Petition No. 19/1999 pending on the file of this Court. In the said election petition, the 4th respondent has sought the following reliefs :

(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 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 sent seat for more than six months. The petitioner contended that having regard to Section 151a 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. 19/1999 filed by the 4th respondent with a prayer that he should be declared as elected by quashing the election of V. K. Asnotikar.