Madras High Court
K.Venkatachalapathy vs The Election Commission Of India on 10 July, 2026
W.P.No.27064 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.07.2026
CORAM :
THE HONOURABLE MR. SUSHRUT ARVIND DHARMADHIKARI,
CHIEF JUSTICE
AND
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P.No.27064 of 2026
and WMP Nos 29637, 29634 and 29636 of 2026
K.Venkatachalapathy
S/o.Karuppasamy,
K.M.F.Complex, Bell Amazes Colony,
Tirunelveli District Court opposite,
Palayamkottai, Thirunelveli District.
Petitioner(s)
Vs
The Election Commission of India
through its Secretary, Nirvachan Sadan,
Ashoka Road, New Delhi - 110 001
and 11 others
Respondent(s)
For Petitioner(s): Mr. V.R.Shanmuganathan
(Thru Video Conferencing)
For Respondent(s):Mr.Niranjan Rajagopalan
Standing Counsel for R1
Mr.AR.L.Sundaresan
Additional Solicitor General of India
Assisted by Dr.V.Venkatesan
Senior Panel Counsel for R2
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W.P.No.27064 of 2026
Mr. Vijay Narayan, Advocate General
Assisted by Mr.Akash
Government Advocate for R3
Mr.G.Masilamani, Senior Counsel
for Ms.Ramya.M.B. for R4
ORDER
(Order of the Court was made by the Hon’ble Chief Justice)
The petitioner, a registered voter in the State of Tamil Nadu
and a practising advocate, has approached this Court under Article
226 of the Constitution of India seeking issuance of a writ of
mandamus to declare that the vacancies arising out of the
resignations of various returned candidates in the May 2026 General
Elections to the Tamil Nadu Legislative Assembly do not constitute
“clear vacancies” or available vacancies for the purpose of holding
bye-elections under Section 151-A of the Representation of the
People Act, 1951 (hereinafter referred to as “the RP Act”).
2. The factual substratum of the petitioner’s case, as culled
out from the affidavit, is that pursuant to the General Elections of
May 2026, several returned candidates resigned their seats, which
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W.P.No.27064 of 2026
were subsequently accepted by the Speaker under Article 190(3)(b)
of the Constitution. The specific vacancies pointed out are:
(a) 141-Tiruchirappalli (East) Assembly Constituency:
Resigned by fourth respondent effective 10.5.2026,
who chose to retain the 12-Perambur seat.
(b) 103-Perundurai Assembly Constituency: Resigned
by S.Jayakumar effective 25.5.2026.
(c) 225-Ambasamudram Assembly Constituency:
Resigned by seventh respondent effective 26.5.2026.
(d) 179-Viralimalai Assembly Constituency: Resigned
by fifth respondent effective 16.6.2026.
(e) 135-Karur Assembly Constituency: Resigned by
sixth respondent effective 29.6.2026.
3.1. The cornerstone of the argument advanced by learned
counsel for the petitioner rests upon the pendency of several
election petitions filed before this court under Part VI of the RP Act
between 03.06.2026 and 18.06.2026, which challenge the very
validity of the elections of these resigned members. It is submitted
that all these petitions claim a composite relief under Section 84
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W.P.No.27064 of 2026
read with Section 101(b) of the RP Act, praying not only to declare
the election of the returned candidate void, but additionally seeking
a further declaration that the election petitioner or another
candidate has been duly elected.
3.2. It is further submitted that that if the first respondent/
Election Commission of India treats these seats as “clear vacancies”
under Section 151-A of the RP Act and holds bye-elections within
the mandatory six month window, an impossible situation would
arise. If the election petitioner eventually succeeds in proving
corrupt practices under Section 8-A of the RP Act and secures a
declaration under Section 101 of the RP Act, there would be two
candidates representing the same constituency simultaneously, one
via the General Election and another via the bye-election.
Parliament could never have intended such an anomalous and
unworkable scenario.
3.3. Learned counsel for the petitioner relying upon the
decision of the Supreme Court in D.Sanjeevayya v. Election
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W.P.No.27064 of 2026Tribunal, Andhra Pradesh1, submitted that that a returned candidate
cannot get rid of an election petition or escape the tentacles of a
corrupt practice inquiry under the RP Act by submitting resignation.
The Election Commission may suspend taking action under Section
150 of the RP Act until the outcome of the election petition is
known.
3.4. He referred to a decision of the Supreme Court in Election
Commission of India v. Telangana Rastra Samithi2, which confirmed
that the introduction of Section 151-A of the RP Act vide the 1996
Amendment did not alter the ratio of Sanjeevayya (supra) and
submitted that the non-obstante clause in Section 151-A of the RP
Act does not extend to Sections 84, 98(c), or 101(b) of the RP Act.
3.5. He also referred to the decision in Pramod Laxman
Gudadhe v. Election Commission of India3, which reaffirmed the
categorical distinction between two spheres of vacancies: (a)
vacancies where election petitions are pending [which are not
1 AIR 1967 SC 1211
2(2011) 1 SCC 370)
3 (2018) 7 SCC 550
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W.P.No.27064 of 2026available clear vacancies]; and (b) vacancies where no election
petitions are pending.
4.1. Learned Advocate General appearing on behalf of the
third respondent vehemently countered the factual premise of the
writ petition by submitting that in respect of at least three of the
specified cases, on the exact date on which the resignations were
tendered and accepted by the Speaker, there was absolutely no
election petition pending before this court.
4.2. Learned Advocate General emphasized that a vacancy
arises immediately upon the acceptance of a resignation letter
under Article 190(3)(b) of the Constitution of India. If no election
dispute is active on that date, the statutory machinery under
Section 151-A of the RP Act is immediately triggered by operation of
law, creating a binding obligation upon the Election Commission to
fill the unrepresented seat within six months. The subsequent filing
of an election petition cannot retroactively invalidate a clear
vacancy that had already arisen.
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W.P.No.27064 of 2026
5.1. Mr.G.Masilamani, learned Senior Counsel appearing for
the fourth respondent, submitted that the present writ petition is
not maintainable. He argued that the constitutional mandate under
Article 324 clothes the Election Commission of India with the
absolute, plenary power of superintendence, direction, and control
over elections. Whether to hold a bye-election or to defer it under
specific circumstances falls within the fiefdom of the Election
Commission and a third-party busybody cannot seek to
preemptively paralyze this process.
5.2. Learned Senior Counsel argued that the petitioner has no
locus standi to maintain this writ petition, as the petitioner’s
apprehensions are entirely speculative. No notification for a bye-
election has yet been issued by the ECI and, therefore, this petition
is premature.
5.3. It is further submitted that the petitioner is not a
registered elector or voter of any of the specific five constituencies
under the scanner. Being a stranger to the local electorate, he
cannot claim any interest or injury.
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W.P.No.27064 of 2026
6.1. Adding a vital procedural clarification, learned Standing
Counsel for the Election Commission of India submitted that the
petitioner’s blanket assertion regarding pending election petitions is
legally flawed, in as much as the election petitions are strictly
subject to maintainability and curing of defects. In many of these
cases, no notice has even been ordered or issued by the Court to
the opposite parties.
6.2. Learned counsel further submitted that until an election
petition passes the muster of maintainability and notice is ordered,
it cannot be deemed to be “pending” in a manner that creates a
legal bar against the filling up of casual vacancies.
7. We have given our anxious consideration to the
submissions advanced by learned counsel for the parties and
perused the decisions of the Supreme Court.
8. At the outset, it is apposite to refer to the law governing
the issue raised in this writ petition.
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9. The position of law as laid down by the Supreme Court in
D.Sanjeevayya (supra) is as under:
“4. We are unable to accept the argument of the
appellant as correct. In our opinion, the
provisions of Section 150 of the Act must be
interpreted in the context of Sections 84 and
98(c) and other relevant provisions of Part III of
the same Act. If the interpretation contended for
by the appellant is accepted as correct the
vacancy must be filled by a bye-election as soon
as a member resigns his seat notwithstanding the
pendency of an election petition challenging his
election. If the candidate who filed the election
petition eventually gets a declaration that the
election of the member is void and that he
himself had been duly elected there will be two
candidates representing the same constituency at
the same time, one of them declared to be duly
elected at the General Election and the other
declared to have been elected at the bye-election
and an impossible situation would arise. It
cannot be supposed that Parliament
contemplated such a situation while enacting
Section 150 of the Act. Parliament could not have
intended that the provisions of Part VI of the Act______________
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W.P.No.27064 of 2026pertaining to election petitions, should stand
abrogated as soon as a member resigns his seat
in the Legislature. It is a well settled rule of
construction that the provisions of a statute
should be so read as to harmonise with one
another and the provisions of one section cannot
be used to defeat those of another unless it is
impossible to effect reconciliation between
them. …
5. It is therefore not permissible, in the present
case, to interpret Section 150 of the Act in
isolation without reference to Part III of the Act
which prescribes the machinery for calling in
question the election of a returned candidate.
When an election petition has been referred to a
Tribunal by the Election Commission and the
former is seized of the matter, the petition has to
be disposed of according to law. The Tribunal has
to adjudge at the conclusion of the proceeding whether
the returned candidate has or has not committed any
corrupt practice at the election and secondly, it has to
decide whether the second respondent should or should
not be declared to have been duly elected. A returned
candidate cannot get rid of an election petition
filed against him by resigning his seat in the
Legislature, whatever the reason for his
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W.P.No.27064 of 2026
resignation may be. In the present case, the election
petition filed by Respondent 2 has prayed for a
composite relief namely, that the election of the
appellant should be declared to be void and that
Respondent 2 should be declared to be duly elected. In
a case of this description the Election Commission
is not bound immediately to call upon the
Assembly constituency to elect a person for the
purpose of filling the vacancy caused by the
resignation of the appellant. It is open to the
Election Commission to await the result of the
election petition and thereafter decide whether a
bye-election should be held or not. If the election
petition is ultimately dismissed or if the election
is set aside but no further relief is given, a bye-
election would follow. If, however, Respondent 2
who filed the election petition or any other candidate is
declared elected the provisions of Section 150 of the
Act cannot operate at all because there is no vacancy
to be filled. In the present case, therefore, we hold
that the Election Commission is not bound under
Section 150 of the Act to hold a bye-election
forthwith but may suspend taking action under
that section till the result of the election petition
filed by Respondent 2 is known.”
[emphasis supplied]
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W.P.No.27064 of 2026
10. In Telangana Rastra Samithi (supra), the Supreme Court
held thus:
“39. The decision in Sanjeevayya case involved
the causation of a casual vacancy on account of
resignation by the elected candidate while an
election petition under Section 84 of the Act was
pending. The effect of Article 190(3)(b) of the
Constitution was considered in the facts of the
said case and it was held that the vacancy caused
by the decision of the Speaker did not become
a vacancy available for being filled up and/or
capable of being filled up (emphasis supplied) till
a declaration was either made or refused under
the latter part of Section 84. Notwithstanding the
intervention of Section 151-A by way of
amendment with effect from 1-8-1996, the
position remains the same. The only effect on
account of such declaration under Section 190(3)(b) is
that a time-limit was fixed for holding bye-elections in
respect of casual vacancies.
…
46. We are, therefore, of the firm view that the
introduction of Section 151-A in the Constitution
did not alter the position as far as the provisions
of Section 84 and consequently Sections 98(c)
and 101(b) of the 1951 Act are concerned, since______________
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W.P.No.27064 of 2026although a casual vacancy may have occurred
within the meaning of Section 150 of the 1951
Act, those vacancies in which election petitions
had been filed and were pending cannot be held
to have become available for the purposes of
being filled up within the time prescribed under
Section 151-A of the 1951 Act. Article 190(3)(b)
of the Constitution merely indicates that if a
Member of a House of a Legislature of a State
resigns his seat by writing to the Speaker and
such resignation is accepted, his seat shall
become vacant. It does not introduce any
element of compulsion on the Election
Commission to hold a bye-election ignoring the
provisions of Section 84 of the Act. In such cases,
we have little hesitation in holding that such
casual vacancies are not available for being filled
up and the Commission will have to wait for
holding elections in such constituencies until a
decision is rendered in regard to the latter part of
Section 84 of the 1951 Act during the life of the
House. …”
[emphasis supplied]
11. The Supreme Court in Pramod Laxman Gudadhe (supra)
observed thus:
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W.P.No.27064 of 2026“14. Proceeding further, the Court in D.Sanjeevayya
case ruled that when an election petition has been
referred to a tribunal by the Election Commission
and the tribunal is seized of the matter, the
petition has to be disposed of according to law.
The tribunal has to adjudge at the conclusion of
the proceeding whether the returned candidate
has or has not committed any corrupt practice at
the election and secondly, it has to decide
whether the second respondent therein should or
should not be declared to have been duly elected.
A returned candidate cannot get rid of an election
petition filed against him by resigning from the
seat in the legislature, whatever the reason for
his resignation may be.
…
16. The Court in Election Commission of India
case went on to say that the introduction of Section
151-A did not alter the position as far as the provisions
of Section 84 and, consequently, Sections 98(c) and
101(b) of the Act are concerned, although a casual
vacancy may have occurred within the meaning of
Section 150 of the Act. The Court made a distinction
between the two categories of vacancies, namely,
vacancies in which election petitions had been
filed and are pending and other vacancies where
no such cases were filed and pending. The Court______________
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W.P.No.27064 of 2026opined that in the first category of cases, the
vacancies could not have been treated to be
available for the purposes of filling up within the
time prescribed under Section 151-A of the Act
merely because a member of the House of a
Legislature of a State had resigned and the same
had been accepted by the Speaker. To arrive at
the said conclusion, emphasis was laid on Section
84 of the Act. In the second category of cases,
the Court pronounced that the vacancies would
have to be construed as clear vacancies
warranting action under Section 151-A of the
Act.”
[emphasis supplied]
12. In the aforesaid decisions, the Supreme Court has
emphatically held that the occurrence of a casual vacancy under
Section 150 of the RP Act, triggered by the acceptance of a
member’s resignation under Article 190(3)(b) of the Constitution,
does not automatically render that seat a “clear or available
vacancy” for the mandatory holding of a bye-election within the six-
month window prescribed by Section 151-A of the RP Act. It was
also held that a distinction must be drawn between two categories
of vacancies: (a) vacancies where an election petition claiming a
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W.P.No.27064 of 2026
composite relief under Section 84 of the RP Act to declare the
election of the returned candidate void and to further declare
another candidate duly elected under Section 101(b) of the RP Act
has been filed and remains pending; and (b) vacancies where no
such election disputes are pending. In the former category, a
returned candidate cannot frustrate the statutory inquiry into
corrupt practices or escape the tentacles of judicial scrutiny by
submitting resignation. To prevent an unworkable constitutional
anomaly wherein two individuals could simultaneously claim valid
title to represent the exact same constituency, the rule of
harmonious construction dictates that the Election Commission’s
obligation to hold an immediate bye-election stands legally
suspended, and the seat is deemed unavailable until an order is
passed on the latter part of Section 84 of the RP Act. Prima facie,
the observations of the Supreme Court in the aforesaid decisions
indicate that if an election petition seeks the composite relief of
declaring the petitioner as duly elected under Section 84 of the RP
Act, the vacancy cannot be treated as a “clear vacancy” available
for a bye-election.
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13. Such being the legal position, we are of the view that in
matters touching upon the purity of the democratic process, a
narrow and pedantic interpretation of locus standi cannot be
applied. The premature holding of bye-elections not only inflicts an
enormous drain on the public exchequer funded by taxpayers, but
also risks a severe constitutional deadlock by potentially yielding
two validly elected representatives for a single constituency. As a
citizen of India, a registered voter within the State, and an officer of
the court, the petitioner possesses a vital interest in ensuring that
the Election Commission operates strictly within its statutory
boundaries under the RP Act. Consequently, the submission
advanced by the learned counsel for the contesting respondents
that the petitioner does not have the locus standi as he is not an
elector in those specific constituencies fails to pass muster.
14. However, the nuanced arguments concerning the date of
vacancy vis-à-vis the date of filing the election petition, alongside
the maintainability of the election petitions highlighted by the ECI,
require a deeper examination.
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W.P.No.27064 of 2026
15. Accordingly, let notice be issued to the respondents who
are not represented today. All the respondents are directed to file
their comprehensive counter-affidavits traversing all factual and
legal assertions within a period of three weeks from today.
Post the matter on 31.7.2026. Till then the first respondent/
Election Commission of India is restrained from issuing any
notification for bye-election in respect of the constituencies, where
the returned candidates resigned, as asserted in the writ petition.
(SUSHRUT ARVIND DHARMADHIKARI,CJ) (G.ARUL MURUGAN,J)
10.07.2026
Index: Yes
NC : Yes
sasi
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W.P.No.27064 of 2026
To:
1.The Secretary
Election Commission of India
Nirvachan Sadan, Ashoka Road,
New Delhi – 110 001
2.The Secretary
Union of India
Ministry of Law and Justice,
Department of Legislative Affairs,
Shastri Bhawan,
New Delhi – 110 001.
3.The Secretary
Tamil Nadu Legislative Assembly
Secretariat
Legislative Assembly Building,
Chennai – 600 009.
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W.P.No.27064 of 2026
THE HON’BLE CHIEF JUSTICE
AND
G.ARUL MURUGAN,J.
(sasi)
W.P.No.27064 of 2026
10.07.2026
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