Ramaswami, J. - (1.) This appeal is brought. by special leave from the judgment of the High Court of Andhra Pradesh, dated September 19, 1966 in Writ Petition No. 1253 of 1965.
(2.) At the last General Election to the Andhra Pradesh Legislative Assembly held in February 1962 the appellant and the 2nd respondent - P. Rajaratna Rao - were the contesting candidates for election from the Kodumuru constituency in Kurnool District. The result of the election was announced on February 25, 1962 and the appellant was declared to have been elected by a majority of about 7,000 votes. The second respondent thereafter filed an election petition (Election Petition No. 180 of 1962) under S. 81 of the Representation of the People Act. 1951 (Act 43 of 1951), hereinafter called the 'Act' calling in question the election of the appellant on the ground that various corrupt practices had been committed at the election and claiming a two-fold relief namely, that the election of the appellant should be declared to be void and that respondent No. 2 himself should be declared to have been duly elected. After the appellant had filed written statement, the Election Tribunal, Hyderabad, framed twenty-two issues, but the trial of election petition could not be proceeded with as the appellant filed several interlocutory application raising various objections and after they were overruled by the Election Tribunal, the appellant filed several writ petitions in the Andhra Pradesh High Court. During the pendency of the election petition the appellant was appointed by the President of India as Minister for Labour and Employment in the Central Cabinet. Subsequent to that appointment the appellant was elected as a Member of the Rajya Sabba on March 26,1964. Thereupon the appellant resigned his seat in the Legislative Assembly on April 8, 1964 and intimated the same to the Speaker of the Assembly. 0n September 2, 1965 the appellant filed the present Writ Petition (Writ Petition No. 1253 of 1965) before the Andhra Pradesh High Court praying for a writ in the nature of mandamus commanding the Election Commission of India to act under S. 150 of the Act and call upon the Kodumuru constituency to elect a person for the purpose of filling, up the vacancy caused by the resignation of the appellant The appellant also prayed for a writ directing the Election Commission to withdraw election petition No. 180 of 1962 from the file of the Election Tribunal Hyderabad and to stay all further proceedings in the trial of that election petition pending the disposal of the writ petition. In the Court the of argument before the High Court the appellant did not press the second prayer for 'directing the Election Commission to withdraw the election petition from the file of the Election Tribunal, Hyderabad'. With regard to the first prayer, the High Court held that no case was made out for the issue of a writ of mandamus to the Election Commission and accordingly dismissed the writ petition.
(3.) On behalf of the appellant argument was put forward that as soon as the appellant resigned his seat in the Legislative Assembly under Art. 190 (3) (b) of the Constitution of India there was duty cast on the Election Commission to take steps to hold a bye-election for filling the vacancy so caused under S. 150 of the Act. It was contended that it was incumbent upon the Election Commission to discharge this duty immediately without waiting for the result of the election petition filed by respondent No. 2 on April 11, 1962. Article 190 (3) of the Constitution states: "190 (3). If a member of a House of the Legislature of a State- (a) becomes subject to any of the disqualifications mentioned in Cl. (1) of Article 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant." Article 324 (1) of the Constitution provides: "The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under the Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (referred to in this Constitution as the Election Commission)." Section 150 (1) of the Act states as follows: "150 (1) When the seat of a member elected to the Legislative Assembly of a State becomes vacant or is declared vacant or his election to the Legislative Assembly is declared void, the Election Commission shall, subject to the provisions of sub-s. (2), by a notification in the Official Gazette, call upon the Assembly constituency concerned to elect a person for the purpose of filling the vacancy so caused before such date as may be specified in the notification, and the provisions of this Act and of the rules and orders made thereunder shall apply, as far as may be, in relation to the election of a member to fill such vacancy." Section 84 of the Act provides: "A petitioner may, in addition to claiming a declaration that the election of all or any of the resumed candidates is void, claim a further declaration that he himself or any other candidate has been duly elected." Section 98 reads as follows: "At the conclusion of the trial of an election petition the Tribunal shall make an order- (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected." It was argued for the appellant that S. 150 of the Act contemplates three contingencies on the happening of any one of which the Election Commission may call for a bye-election. The first contingency namely, the seat of a member becoming vacant arises when a member resigns his seat, the second contingency namely, the seat of a member being declared vacant, is brought about when a member absents himself from meetings of the Houses of the Legislature for a period of sixty days without the permission of the House; while the third contingency arises when the election of a member to the Legislative Assembly is declared void by an Election Tribunal under S. 98 (b) of the Act at the conclusions of the trial of an election petition. It was argued for the appellant that the three contingencies contemplated by the section are mutually exclusive and upon the happening upon the Election Commission to take steps to hold a bye-election forthwith. In the present case, it was pointed out that the first contingency has arisen namely, the seat of a member became vacant upon his resignation and it was manifestly the duty of the Election Commission to take steps forthwith to hold a bye-election to fill the vacancy irrespective of the fact that an election petition was pending in which the second respondent had asked for a declaration that the election of the appellant was void and also for the relief that he himself should be declared to be duly elected.;