Gauhati High Court
Nagaland Pradesh Congress Committee ... vs The Election Commission Of India [Eci] & ... on 10 July, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
WA No.188 of 2017
BEFORE
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE MANOJIT BHUYAN
10.7.2017
(Ajit Singh, C.J.)
Mr. K Das and Mr.S Ali, learned counsel for the appellant.
Mr.S Dutta, learned senior counsel assisted by Ms.N Modi,
learned counsel for caveator and Ms. B Das, learned counsel
for Respondent No.1.
Heard on admission.
This intra-court appeal is directed against the order dated 3.7.2017 passed by the learned Single Judge of Kohima Bench of this High Court, whereby he has dismissed appellant's WP(C)No. 111(K) of 2017.
The 10th Northern Angami-1 (ST) Assembly Constituency in Nagaland has become vacant with effect from 24.5.2017. And the Election Commission of India issued a Press Note dated 29.6.2017 stating therein that bye-election to fill casual vacancy shall be held on 29.7.2017. Admittedly, now even notification dated 5.7.2017 has also been issued regarding the election programme to fill up the vacancy.
The appellant challenged that Press Note of the Election Commission of India on the ground that since remainder of the term of a member in relation to a vacancy is less than one year, bye- election to fill up the vacancy is uncalled for. In support of this submission, the appellant referred to Section 151-A of the Representation of the People Act, 1951. Another ground of challenge was that no provision for Voter Verifiable Paper Audit Trial has been made to ensure free and fair election. But the learned page 1 of 3 Single Judge disagreed with the appellant and dismissed the writ petition.
Section 151-A of the Representation of the People Act reads as under:
"151-A. Time limit for filling vacancies referred to in Sections 147, 149, 150 and 151.-- Notwithstanding anything contained in Section 147, Section 149, Section 150 and Section 151, a bye-election for filling any vacancy referred to in any of the said sections shall be held within a period of six months from the date of the occurrence of the vacancy:
Provided that nothing contained in this section shall apply if--
(a) the remainder of the term of a member in relation to a vacancy is less than one year; or
(b) the Election Commission in consultation with the Central Government certifies that it is difficult to hold the bye-election within the said period.
A bare reading of the above quoted Section makes it clear that there is no bar on the Election Commission of India to fill up the casual vacancy even if the remainder of the term of a member in relation to a vacancy is less than one year. Proviso (a) to Section 151 is merely an exception to a statutory mandate that bye-election for filling up casual vacancy must be held within a period of six months from the date of occurrence of the vacancy. The proviso does not say that no bye-election shall be held to fill up a vacancy if the remainder of the term of a member in relation to a vacancy was less than one year.
The bye-election in question has been duly notified. We hope and trust that Election Commission of India has taken all steps to ensure free and fair election. Even otherwise, there is no material on record to suggest that Election Commission of India is not vigilant to ensure free and fair election. If after the bye-election the appellant has material to establish that election was not free and fair, he can resort to remedy provided under the Representation of the People page 2 of 3 Act, 1951. At this stage, when the bye-election has been notified, we are not inclined to admit the writ appeal. It is accordingly dismissed.
JUDGE CHIEF JUSTICE
skd
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