TELANGANA RASTRA SAMITHI Vs. UNION OF INDIA

JUDGEMENT

(1.) The decision of Election Commission of India (ECI) not to hold bye- elections to 28-Vemulawada and 29-Sircilla Assembly Constituencies in State of Andhra Pradesh is in challenge in this writ petition filed by Telangana Rastra Samithi (TRS). The case involves a constitutional question of significance in the matter of bye-elections to casual vacancies in State Legislative Assembly. Election Commission of India (ECI - second respondent herein) contends that bye- election to a casual vacancy cannot be conducted even if a seat has become vacant under Article 190(3)(b) of the Constitution of India, so declared by Notification by the Speaker of the Assembly under Section 150 of the Representation of the People Act, 1951 (RP Act, for brevity). ECI would sustain such an argument from the pendency of Election Petition under Section 80 read with Sections 100 and 101 of RP Act challenging the election of a Member of House of Legislature, who subsequently submitted his resignation. They rely on D.Sanjeevayyav.Election Tribunal, Andhra Pradesh, AIR 1967 SC 1211. TRS would rely on Section 151A of RP Act which was introduced by the Representation of the People (Amendment) Act, 1996 (Central Act No.21 of 1996) which came into force with effect from 01.08.1996 and urge that a casual vacancy shall be filled within 'a period of six months from the date of occurrence of the vacancy'. The entire controversy is in relation to this aspect in this writ petition, which is heard at the stage of admission with the consent of the senior counsel for TRS, standing counsel for ECI and Assistant Solicitor General for Union of India (first respondent herein).

(2.) The fact of the matter is not in dispute. General elections to Andhra Pradesh State Assembly were held during April/May, 2009 in accordance with Section 15 of RP Act and the provisions in Part V of RP Act. Among others, ten members of TRS, one member from Bharatiya Janata Party (BJP) and one from Telugu Desam Party (TDP) were also elected. The election of the successful candidate in respect of 28-Vemulawada Assembly Constituency was challenged in Election Petition being E.P.No.4 of 2009 before this Court. The election of the candidate in respect of 29-Sircilla Assembly Constituency was also challenged in E.P.No.14 of 2009. The petitioners therein sought the relief to set aside the election of the declared candidate and also the relief of declaration that the election petitioner is elected to the Constituency. These petitions are pending before this Court.

(3.) A Joint Action Committee (JAC) was formed with all political parties for the cause of separate Telangana State. JAC decided that all the Members of Legislative Assembly of respective political parties should resign. Twelve (12) members submitted resignations on 14.02.2010 to their Membership in Andhra Pradesh State Legislative Assembly. The Speaker of Assembly ordered Notification of the vacancies. These Notifications were published in Andhra Pradesh Gazette (Part II Extraordinary), dated 14.02.2010. The two Notifications in relation to 28-Vemulawada and 29-Sircilla read as under. Resignation of Sri Ch.Ramesh, Member elected from 28-Vemulawada Assembly Constituency. C.No.37/Legn./2010-11/- "Sri Ch.Ramesh, an elected Member of the Andhra Pradesh Legislative Assembly from 28-Vemulawada Assembly Constituency has resigned to his seat in the Andhra Pradesh Legislative Assembly with effect from the 14th February, 2010. Consequently a vacancy has arisen to 28-Vemulawada Assembly Constituency". Resignation of Sri K.Taraka Rama Rao, Member elected from 29-Sircilla Assembly Constituency. C.No.37/Legn./2010-8.- "Sri K.Taraka Rama Rao, an elected Member of the Andhra Pradesh Legislative Assembly from 29-Sircilla Assembly Constituency has resigned to his seat in the Andhra Pradesh Legislative Assembly with effect from the 14th February, 2010. Consequently a vacancy has arisen to 29-Sircilla Assembly Constituency." ECI issued a Press Note No.ECI/PN/23/2010, dated 21.06.2010, under Section 30 of RP Act notifying their decision to hold bye-elections to fill up ten 'clear vacancies' as per the programme indicated therein. Bye-elections to 28-Vemulawada and 29-Sircilla Assembly Constituencies have not been notified. The Press Note, to the extent relevant, is extracted below. ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110 001 No.ECI/PN/23/2010 Dated June 21, 2010 PRESS NOTE Subject: Schedule for bye-elections to fill the casual vacancies in the Legislative Assembly of Andhra Pradesh - regarding.