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The Supreme Court Thursday asked the central government whether it was mandatory for the Election Commission (EC) to hold an election in a constituency where the outcome of the previous poll was under litigation.

While issuing notice to the government and the Telangana Rastra Samithi (TRS), the court sought replies on the issue if the EC was dutybound to conduct elections, within six months, in a constituency which had fallen vacant even though a petition challenging the earlier election was still pending in court.

The EC feared that to do so may lead to a situation where there could be two claimants for the same seat. One succeeding in the court and the other winning the by-election.

Under Section 151 of the Representation of the People Act, 1951, it is incumbent upon the Election Commission to hold, within six months, a by-election to a seat that falls vacant on account of the resignation or death of the sitting member of either a state assembly or parliament.

The apex court bench of Justice Altamas Kabir, Justice A.K. Patnaik and Justice Anil R. Dave also issued notice to Attorney General G.E. Vahanvati to assist the court in the matter.

The notice to the central government has been routed through Solicitor General Gopal Subramanium.

However, the court said: ‘We make it clear that this order will not effect the Election Commission order of holding elections to two assembly seats.’

The two consitutencies of Vemulwada and Sircilla are in the Telangana region of Andhra Pradesh.

The court order came in the wake of the EC challenging a June 30 judgment of the Andhra Pradesh High Court directing the commission to hold election to these two constituencies along with other constituencies for which notification was issued June 21.

Vemulwada and Sircilla are the constituencies where the last election is under challenge and petitioners have sought the unseating of the successful candidates and they being declared as the winners.

The 12 constituencies fell vacant after 10 legislators belonging to TRS and one each from the Bharatiya Janata Party and the Telugu Desam Party resigned from the assembly in support of their demand for the separate state of Telangana. Their resignation came into effect from Feb 14.

Counsel Meenakshi Arora, appearing for the EC, said that the court should ‘authoritatively’ decide whether it was mandatory for the commission to hold elections in the constituencies where the outcome of the last election was under litigation.

She told the court that the commission has faced this problem in Andhra Pradesh and will encounter it in Uttar Pradesh, Madhya Pradesh and other places.

She said that there were divergent judgments of the Andhra Pradesh High Court and the of the Karnataka High Court on the matter.

Senior counsel A.K. Ganguly who appeared for the pleader TRS said that even in the existing provisions of the act there was space for dealing with contingency situations.


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