Bombay High Court
Pritam Harmalkar vs Election Commission Of India on 8 April, 2026
2026:BHC-GOA:734-DB
2026:BHC-GOA:734-DB
WP-235-2026, wp-237-2026 & mca-186-2026
Suzana
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 235 OF 2026
AND
WRIT PETITION 237 OF 2026
AND
MISCELLANEOUS CIVIL APPLICATION NO. 186 OF 2026
IN
WRIT PETITION 237 OF 2026
1.Pritam Harmalkar, son of
Permanand Harmalkar, Aged 49
years, Building No.7, Flat No.M-41, .....Petitioner.
Goa Housing Board Complex,
Ponda-Goa.
Versus
1. Election Commission of India,
Through Secretary, Nirvachan
Sadan, Ashoka Road, New Delhi
110 001.
2. The State of Goa, Through the Chief
Secretary, Having office at
Secretariat, Porvorim Goa.
3. The Chief Electoral Office, Office of ...Respondents.
the Chief Electoral Officer, Having
Office at Altinho, Panaji Goa.
AND
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WRIT PETITION NO.237 of 2026
1. Ankita Kamat, Aged 32 years,
Abhinav Cooperative Housing
Society, Curti, Ponda, Goa. ...Petitioner.
Versus
1. Election Commission of India,
through its Chief Election
Commissioner, Nirvachan Sadan,
Ashoka Road, New Delhi 110 001.
2. State of Goa, Through Chief
Secretary, Secretariat, Porvorim
Goa.
3. The Chief Electoral Officer, Office
of the Chief Electoral Officer,
Altinho, Panaji Goa. ...Respondents.
AND
MISCELLANEOUS CIVIL APPLICATION NO. 186 OF 2026
IN
WRIT PETITION NO. 237 of 2026
1. Mr. Trajano D'Mello, Son of Mr.
Agricio D'Mello, married, aged 77
years, Indian National, National
Spokesperson Trinmool Congress, .....Applicant/Intervenor.
R/o: Peddem, Mapusa, Goa.
Versus
1. Ankita Kamat, Aged 32 years,
Abhinav Cooperative Housing
Society, Curti, Ponda, Goa. ...Respondents.
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Mr.Akshay Naik, Senior Advocate along with Mr. Chaitanya
Padgaonkar, Advocates for the Petitioner in Writ Petition No.235
of 2026.
Mr. Nitin Sardessai, Senior Advocate along with Mr. Terence
Sequeira, Advocate for the Petitioner in Writ Peition 237 of 2026.
Mr. S. R. Rivankar, Senior Advocate with Mr. Rama Rivankar,
Advocate for Respondents No.1 and 3 in both the Petitions.
Learned Advocate General along with Mr. Deep D. Shirodkar,
Additional Government Advocate for Respondent No.3 in both the
Petitions.
Mr. Abhijit Gosavi, Advocate for the Intervenor in Miscellaneous
Civil Application No.186 of 2026 in Writ Petition No.237 of 2026.
CORAM: VALMIKI MENEZES &
AMIT S. JAMSANDEKAR, JJ.
Reserved on: 02.04.2026
Pronounced on: 08.04.2026
JUDGMENT:
(Per. Valmiki Menezes, J.)
1. Registry to waive office objections and register the matters.
2. Heard Mr. Akshay Naik, learned Senior Advocate with Mr.
Chaitanya Padgaonkar, learned Advocate for the Petitioner in
Writ Petition No.235 of 2026, Mr. Nitin Sardessai, Senior
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Advocate along with Mr. Terence Sequeira, Learned Advocate
for the Petitioner in Writ Petition No.237 of 2026, Mr. S. R.
Rivankar, Learned Senior Advocate with Mr. Rama Rivankar,
Learned Advocate for Respondents No.1 and 3, Senior
Advocate Shri. Devidas Pangam, Advocate General for the
State of Goa along with Mr. Deep D. Shirodkar, Learned
Additional Government Advocate for Respondent No.3 and
Advocate Abhijit Gosavi, for the Intervenor.
3. These two petitions impugn Notice dated 15.03.2026 and
Notification dated 16.03.2026 of the Election Commission of
India (Respondent No.1) declaring bye-elections to the 21-
Ponda Constituency, of the Goa Legislative Assembly, to take
place on 09.04.2026. Since the grounds of challenge in these
Petitions are common, they have been heard and are being
disposed of by a common judgement.
4. In both Petitions, the undisputed facts are the following:
The elections to the Legislative Assembly of the State of Goa
were held on 14.02.2022 and its results were declared on
10.03.2022. Late Ravi Naik was declared as the winning
candidate of 21-Ponda Constituency. Oath was administered
to him and 38 other MLAs on 15.03.2022 which is the date on
which the term of the Assembly commenced. The term being
for five years, the term of the current Assembly ends on
14.03.2027.
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Shri Ravi Naik passed away on 15.10.2025 rendering
his seat vacant on that date. The end of the term of the MLA,
(late Ravi Naik), whose seat fell vacant on his demise,
calculated from the date of his taking oath (15.03.2022), is
14.03.2027. The Election Commission issued the impugned
Notification for conducting bye-election to the 21-Ponda
Constituency on 15.03.2026, which was published in the
Gazette on 16.03.2026. According to the election programme,
the last date for taking nominations of candidates was
declared as 23.03.2026, the date for scrutiny of withdrawal of
candidatures was fixed on 24.03.2026 and date by which
withdrawal of candidatures was to be recorded was
26.03.2026. The date of polling has been fixed on
09.04.2026, the date of counting of votes on 04.05.2026
which is the date of declaration of the election results.
5. In these undisputed set of facts, the main ground raised in the
Petition is that the impugned Notification has been issued
contrary to the provisions of Clause (a) of proviso to Section
151-A of the Representation of the People Act, 1951 (RP Act)
since the term of the MLA for the Constituency who would now
be elected would be of less than one year, even if counted from
the date of the election result.
6. These Petitions were granted circulation for 24.03.2026 and
time was granted to the Election Commission till 30.03.2026
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to consider filing an affidavit in reply and to consider the
grounds in the Petitions. The Election Commission has chosen
not to file any affidavit in reply but has placed on record
Written Submissions apart from advancing oral arguments
through Senior Advocate Shri S. R. Rivankar. An intervention
was sought by Trajano D’Mello, national spokesperson of one
of the contesting political party on whose behalf, submissions
were advanced by Shri Abhijit Gosavi, Advocate. Though the
State of Goa was not a necessary party to the Petition, but since
it is arrayed as a Respondent, it has put in appearance and was
represented by the Learned Advocate General for the State of
Goa; the Learned Advocate General did express his
reservations on representing the State as the State has no role
to play in the bye-elections now set down for 09.04.2026.
However, we have requested the Learned Advocate General to
address us, since a question of interpretation of the provisions
of Section 151-A of the RP Act has been raised as the main issue
before us. Accordingly, we have heard the Learned Advocate
General on the said question.
7. The following submissions have been advanced by the parties
to these Petitions:
SUBMISSIONS:
8. The Advocate for the Petitioner Mr. Akshay Naik learned
Senior Advocate appearing in Writ Petition No.235 of 2026
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advanced the following submissions:
a. That the Notification dated 16.03.2026, directing to hold
bye-elections to 21-Ponda Constituency, is contrary to
Clause (a) of the proviso to section 151-A of the RP Act. That
the Respondent No.1 failed to consider that the remainder of
the term of the incoming member in relation to the
remainder of the term of member whose seat fell vacant due
to his death, was less than one year; it was submitted that
the incoming member would hardly get a tenure of about 10
months as a member of the Legislative Assembly as the term
of the Assembly expires on 14.03.2027. He further
submitted that this being the factual position, the
Notification impugned in these Petitions has been issued
contrary to the mandate and prohibition contained in Clause
(a) of proviso to Section 151-A.
b. It was further submitted that Section 151-A opens with a
non-obstante clause, stipulating, that notwithstanding
anything contained in Section 147, 149, 150 and 151, a bye-
elections for filling any vacancy referred to in any of those
Sections is required to be held within six months of the
occurrence of the vacancy. He submitted that the main part
of this Section prohibits holding of an election, if not notified
within six months of the seat falling vacant; the only
exception to this mandate, is when the Election Commission
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exercises the option, under Clause (b) of proviso to Section
151-A, in issuing a certificate, in consultation with the
Central Government, that it is difficult to hold elections
within the period of six months mandated by the main
Section. The Learned Counsel submitted that these are
mandatory provisions and have been introduced by way of
an amendment in the year 1996, since prior thereto, there
was no requirement to hold bye-elections within any time
frame.
c. It was further submitted that apart from the mandate of the
main provisions of Section 151-A, the provisions of Clause
(a) also provide, independent of the provisions of Clause (b)
of the proviso, that bye-elections shall not be held to a vacant
seat, if the remainder of the term, that the newly elected
member would have, counted from the date of his taking
office/swearing-in, was less than one year from that date.
The Counsel further submits that undisputedly, the vacancy
occurred on 15.10.2025 when the sitting MLA expired, and
though the bye-election Notification has been issued within
six months of this occurrence, since the remainder of the
term of any member who would now be elected in the bye-
election, counted even from the date of declaration of
results, would be less than a year, considering the term of
the Assembly ends on 14.03.2027.
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d. The Learned Senior Advocate placed a reliance on the
following case law:
i. Sandeep Yashwantrao Sarode v/s Election
Commission of New Delhi and ors1;
ii. Anil Shivkumar Dubey v/s Election
Commission of India and 2 Ors ;
2
iii. Manoj and Anr v/s Maharashtra State Election
Commission Mumbai and Ors3;
e. It was further submitted that Sandeep Yashwantrao
Sarode(supra) has considered the submissions of the
Election Commission, who, in that case interpreted the
provisions of Section 151-A in a manner, reckoning the
remainder of the period available to a newly elected
member, from the date that the vacancy in the seat arose
i.e. the date when the MLA’s resignation in that case was
accepted. He has further argued that the decision in
Sandeep Yashwantrao Sarode(supra) has not been
challenged by the Election Commission, though it was
challenged by one of the Respondents in that matter,
before the Supreme Court, which Appeal was dismissed as
withdrawn, giving finality to the view taken by the Bombay1
2019 SCC OnLine Bom 629
2
Judgement dated 26.03.2024 in Writ Petition No.1986 of 2024
3
2024 (6) Mh.L.J 541Page 9 of 53
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WP-235-2026, wp-237-2026 & mca-186-2026High Court on the interpretation of the provisions of
Section 151-A; it was then contended that the view taken
in Sandeep Yashwantrao Sarode(supra) was followed
in a later case where the same provisions came up for
interpretation before the Bombay High Court, in Anil
Dubey (supra) where a similar Notification was quashed.
Even in that case, the Election Commission has chosen not
to challenge the Judgment and accepted the same. It was
contended that having accepted these two decisions, the
Election Commission cannot take a different view of the
matter and interpret the time frame of one year referred to
in Clause (a) of proviso to Section 151-A to commence from
the date the seat fell vacant.
9. The Learned Senior Advocate Mr. Nitin Sardessai for the
Petitioner appearing in Writ Petition No.237 of 2026 advanced
the following submissions:
i. In addition to adopting the arguments of Learned Senior
Advocate Shri Akshay Naik appearing for the Petitioner in
Writ Petition No.235 of 2026, it was submitted that the
Election Commission, having accepted the ratio laid down in
Sandeep Yashwantrao Sarode (supra) and followed in
Anil Dubey (supra) could now not take a contrary stand,
despite these being binding precedent for the State of Goa,
and hold an election in contravention of the embargo set inPage 10 of 53
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WP-235-2026, wp-237-2026 & mca-186-2026Clause (a) of proviso to Section 151-A. He submitted that the
Election Commission has taken a conscious decision in both
cases where the Nagpur Bench of this Court has struck down
its notification to hold a bye-election, to accept the
interpretation of Clause (a) of proviso to Section 151-A. In
these circumstances, the Election Commission should not be
permitted to proceed with the bye-elections on the basis of
the impugned Notification. Reliance was placed on a
Judgment of the Supreme Court in Birla Corporation
Ltd v/s Commissioner of Central Excise4 to buttress
this submission.
ii It was further submitted by the Learned Senior Advocate
that the doctrine of Precedence mandates that a Bench of
Coordinate strength must follow the view taken by an earlier
Bench of the same strength, and cannot refer the matter to a
larger Bench, merely because it feels that another view is a
better one or because it disagrees with the view earlier taken
for different reasons; it was further submitted that judicial
discipline must be exercised by the subsequent Bench
hearing a similar point unless it finds the earlier judgment
to be so very incorrect, that in no circumstances can it be
followed.
4
(2005) 6 SCC 95
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WP-235-2026, wp-237-2026 & mca-186-2026Reliance is placed on the following judgments:
a). Union of India and Others v/s Dhanwanti Devi
and Others5;
b) Shah Faruq Shabir and others v/s Govindrao
Ramu Vasave and others 20166;
c) National Insurance Company Limited v/s Pranay
Sethi and Others7.
iii. It was then submitted that in the undisputed set of facts
before this Court, the bar under Article 329 of the
Constitution of India, to Courts interfering in election
matters would not apply since there is neither the validity
of a law relating to the subjects mentioned in Clause (a)
thereof involved, nor is the Petitioner bringing into
question an election, which is yet to take place. In the
present case, according to the Learned Counsel, there
would be no cause for the Petitioners to challenge the
election of any incoming candidate, in an election Petition,
on the grounds set out in the present Petitions. Reliance
was placed on Romaldo Fernandes v/s State of Goa
and Others8.
5
(1996) 6 SCC 44
6
(5) Mh.L.J 436
7
(2017) 16 SCC 680
8
(2021) 1 HCC (Bom) 139
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10. Mr. S.R. Rivankar, Learned Senior Advocate appearing for the
Respondent No.1 and 3 in both the Petitions, filed Written
Submissions and additional Written Submissions and
advanced oral arguments, the substance of which are recorded
below:
i. The interpretation of the phrase “remainder of the term” as
stated in Clause (a) of the proviso to Section 151-A suggests
that there is “full/whole term” and “Part of the term” which
relates to an outgoing member and not the incoming
member. He submits that the view taken by this Court in
Sandeep Yashwantrao Sarode (supra) is a wrong view
as it is contrary to the earlier view taken by this Court in
Pramod Laxman Gaudadhe v/s Election
Commission of India and Others 9 , which was then
upheld by the Supreme Court in Pramod Laxman
Gaudadhe v/s Election Commission of India and
Others10 .
ii. He further submitted that though Sandeep Yashwantrao
Sarode(supra) has considered the Judgment of the
Supreme Court rendered in Pramod Laxman Gaudadhe
(supra), the Nagpur Bench of this Court has misinterpreted
the view taken by the Supreme Court, which was a binding9
2018 SCC OnLine Bom 1111
10
(2018) 7 SCC 550
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WP-235-2026, wp-237-2026 & mca-186-2026precedent, holding that the period of one year referred to in
Clause (a) of proviso to Section 151-A is to be calculated from
the date when the seat for which the bye-election is to be
held falls vacant. In these circumstances, the Learned
Counsel urges us to refer the present two Petitions to a larger
Bench of this Court for reconsideration in view of the wrong
interpretation by this Court of Pramod Laxman
Gaudadhe (supra), made in the Judgment rendered in
Sandeep Yashwantrao Sarode(supra).
iii. He further submits that the conflict in Judgments arising in
the present Petitions may also be referred to a Bench having
more than two judges by exercising powers under Rule 8
Chapter I of the Bombay High Court Appellate Side Rules.
Reliance was placed to support this submission on Pradip
Chandra Parija & Ors v/s Pramod Chandra Patnaik
& Ors 11 and Mr.Mohd. Farhan A Shaik v/s The
Deputy Commissioner of Income Tax12 .
11
2002 (1) SCC 1
12
Order dated 28.02.2020 in Tax Appeals No. 51 and 57 of 2012 by
the High Court of Bombay at Goa
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iv. It was then submitted that at least three other High
Courts, whilst interpreting the provisions of Clause (a) of
proviso to Section 151-A have held that the period from
which one year is to be counted, to decide the validity of an
election notification, is from the date when the vacancy of
the seat arose. It was submitted that the Punjab & Haryana
High Court in Kunal Chanana v/s Election
Commission of India and Others 13, has considered the
view taken by this Court in Sandeep Yashwantrao
Sarode(supra) and has taken a different view, which view
was upheld by the Supreme Court whilst dismissing an
Appeal against that Judgment. It was then submitted that
the Karnataka High Court has also considered these
provisions and the Judgment of the Supreme Court in
Pramod Laxman Gaudadhe (supra) and has taken a
different view from that taken by the Bombay High Court.
v. It was further submitted that the Bombay High Court in
Sughosh Joshi v/s The Election Commission of
India and Anr 14 has also taken a different view, though,
on an Appeal filed to the Supreme Court the said Judgment
has been stayed. This, according to the Learned Senior
Counsel was a reason for considering a reference of the view
13
2024 SCC OnLine P&H 5146
14
2023 SCC OnLine Bom 2659
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taken in Sandeep Yashwantrao Sarode(supra) to a
larger Bench.
vi. It was then argued that the Report of the Committee on
Electoral Reforms prior to the amendment of 1996, by which
Section 151-A was inserted in the RP Act, suggested
amendment in terms of requiring bye-elections, lawfully to
be held within six months of the seat falling vacant but also
recommended that the vacancy need not be filled if a general
election is normally due within one year from the date of
the occurrence of the vacancy, and not from the date
when the newly elected incumbent took office. He
submitted that the report and recommendation to
Parliament is reflected in the provisions of Section 151-A
which should be given interpretation which is in consonance
with the recommendation that the one year referred therein
is to be calculated from the date of occurrence of the
vacancy.
11. The Learned Advocate General, Senior Advocate Shri Devidas
Pangam, has advanced the following submissions, to assist the
Court at arriving at a decision in the matter.
i. It was submitted that Reports of a Law Commission, which
are recommendations cannot be used as an aid to interpret
a provision of law, much less to conclude the intention of
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Parliament behind such legislation. He submitted that in
the present case, though the report recommends the one
year to be calculated from the date the vacancy arose,
Parliament chose not to enact Section 151-A in those terms
but has instead used the words “remainder of the term of a
member in relation to a vacancy”. He therefore submits that
the intention of Parliament was not to accept the
recommendation but to enact the provision with a term
different from the one recommended, that is to say, not from
the date of occurrence of the vacancy but to prohibit
elections from being held if the remainder of the term of a
newly elected member is less than one year. Reliance was
placed on State of Madhya Pradesh V/s Dewadas and
Others15.
12. Advocate Abhijit Gosavi for the Intervenor in Miscellaneous
Civil Application No.186 of 2026 filed in Writ Petition No.237
of 2026 has advanced the following submissions:
a. That this court in Sandeep Yashwantrao Sarode
(supra) has decided the matter and interpreted the
provision of section 151-A without looking in the
Statement of Objects and Reasons to the amendment
to section 151-A of the RP Act. He places reliance on
the Sandeep Yashwantrao Sarode(supra) is sub15
(1982) 1 SCC 552
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WP-235-2026, wp-237-2026 & mca-186-2026silentio since it was passed without examining the
Judgments of the Supreme Court in Pramod
Laxman Gaudadhe (supra) or discussing the point
involved therein or considering the arguments, whilst
declaring its interpretation of law.
b. Reliance was placed on Municipal Corporation of
Delhi v/s. Gurnam Kaur 16 and State of U.P. &
Anr v/s. Synthetics & Chemicals Ltd & Anr17.
CONSIDERATIONS
13. Based upon the pleadings of the rival parties, and the rival
submissions advanced at the bar, the following points arise for
determination in this petition:
A. Whether the judgment of the Bombay High Court of its
Nagpur Bench rendered in Sandeep Yashwantrao
Sarode (supra) interpreting the provisions of Section
151-A of the Representation of the People Act, 1951
constitutes a precedent which is binding on this Court?
B. Whether, in the light of the submissions advanced on
behalf of the Election Commission of India, a case has
been made out for reference of the view taken in Sandeep16
1989 (1) SCC 101
17
(1991) 4 SCC 139
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WP-235-2026, wp-237-2026 & mca-186-2026Yashwantrao Sarode (supra) to a larger bench of this
Court?
C. Whether the impugned Notification dated 15.03.2026 and
16.03.2026 to hold bye-elections to fill the vacancy for the
21- Ponda Assembly Constituency of the State of Goa, calls
for any interference in writ jurisdiction of this Court?
CONSIDERATIONS ON QUESTION “A”
14. In Sandeep Yashwantrao Sarode (supra), the challenge
made, was to the legality and correctness of the declaration
of the Election Commission in holding bye-elections to fill
the casual vacancy which has arisen in the 48-Katol
Assembly Constituency on the seat having fallen vacant
when the outgoing MLA tendered his resignation which was
accepted by the Speaker of the Legislative Assembly of
Maharashtra on 06.10.2018. Thus, the seat fell vacant on
06.10.2018. The Election Commission issued a Notification
to hold a bye-election to the vacant seat on 11.04.2019. The
question which arose before the Court in that case was to the
interpretation of Clause (a) of the proviso to Section 151-A of
the RP Act, and whether the period of one year referred to in
the said Clause was to be reckoned from the date of
occurrence of the vacancy or to be reckoned as the remainder
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of the period of the term of the outgoing member, counted
from the date when the newly elected member takes office.
15. In Sandeep Yashwantrao Sarode (supra), this Court
formulated four questions for its decision which are found in
paragraph 9 of the Judgment and are reproduced below:
9.The arguments canvassed across the bar on behalf of
both the sides would lead us to say that the controversy
raised here has found its expression in a more precise
way in four questions, which are follows:
(i) Whether there is a violation of mandate of section 151-
A of the R.P. Act, 1951 by the ECI?
(ii) Whether the exceptions created in the proviso to
section 151-A, of the R.P. Act, 1951 apply to the present
controversy and if so, by which of the clauses, clause (a)
or clause (b) or both, is it covered?
(iii) Whether the decision taken by the ECI to hold the
bye-election fell within its discretionary power and if so,
whether it is exercised reasonably and not arbitrarily
and without any discrimination, well tune with the
principle of rule of law?
(iv) Whether entertaining this petition would amount to
interference in the election process?
16. In answer to the questions formulated, this Court considered
the provisions of Section 150 and 151-A of the RP Act, and has
interpreted the proviso of Clause (a) of the Provision to Section
151-A in the following terms:
14. It would be clear from the above referred provisions
of law that they deal with a situation, where seat of a
member elected to the legislative assembly of a State
becomes vacant or is declared vacant They also state the
manner in which such a contingency is to be dealt with.
On the happening of the contingency contemplated in
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section 150 of the R.P. Act, 1951, a statutory duty bears
itself upon the ECI to fill the casual vacancy within the
stipulated period of time, as provided under section 151-
A of the RP. Act, 1951 The duty under section 151-A is
imperative in nature, which is discernible from the
overall structure of section 151-A The section starts with
a non obstante clause making a declaration in terms,
“Notwithstanding anything contained in section 142,
section 149, section 150 and 151” and proceeds further
employing a modal verb “shall”, all showing the
determinative nature of legislative Instructions and
assertions. The legislative determination is that a Casual
vacancy, as contemplated under section 150 or, for that
matter other cognate sections like section 147 or section
149 or section 151 be filled, in any case, within a period of
six months from the date of Occurrence of the vacancy
suggesting thereby that it is in the interest of democratic
process that no seat of legislative assembly may remain
unrepresented for a long period of time An emphatic
expression of such a legislative intent, it seems, became
necessary because of the fact that the R.P. Act, 1951, as it
was enacted, did not contain any such time frame
thereby creating a possibility of not holding of election to
fill a casual vacancy for indefinite period or very long
time. To dispel all the doubts in this regard, section 151-A
came to be inserted by an amendment introduced
through Act No. 21 of 1996, with effect from 1-8-1996, and
the purpose, as we have stated, is clearly visible from the
plain meaning of the language used in this section With a
view to find support to this conclusion, we also perused
the text of the Act No. 21 of 1996, a copy of which has been
made available to us. We, however, could not come
across any statement of objects and reasons made
therein. Nevertheless, the object of this provision can be
no different than what we have gleaned just now by
considering the plain language of the section.
15. This would enable us to say that the provisions
contained in section 151-A of the R.P. Act, 1951, as regards
the time line fixed for filling the casual vacancies, are
imperative and the time limit would not apply only when
the situation is covered by any one of the other or both
the exceptions contained in the proviso.
16. Apart from the two exceptions specified in the proviso,
there could also be some more exceptions to section 151-A
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of the R.P Act, 1951, depending upon the facts and
circumstances of each case A fair idea about such a
proposition can be had from the judgment of the Hon’ble
Apex Court in the case of Election Commission of India v
Telangana Rashtra Samiti, reported in (2011) 1 SCC 370,
wherein the Hon’ble Apex Court has held, where a casual
vacancy may have occurred within the meaning of
section 150 of the R.P. Act, 1951, it is possible to say that
the vacancy has not become available for the purpose of
being filled within the time prescribed under section 151-
A of the R.P. Act, owing to the pendency of the election
petition. This would show that for filling a casual
vacancy within the time limit prescribed in section 151-A
of the RP Act, it is also required to be examined, if the
vacancy has actually become available to be filled or not,
and if it has not become so available, the mandate of
section 151-A, as regards the time line, would not apply
and this could possibly be another exception.
17. In paragraph 14 of the judgment this Court has specifically
taken note of the fact that since Section 151-A came to be
inserted in to the Statute Book by an amendment introduced
in the year 1996, in the absence of any Statement of Objects
and Reasons for such amendment, it rendered its
interpretation of Clause (a) holding that the object of the
proviso, or the plain language of the Section was to prohibit the
holding of a bye-election where the remainder of the period
calculated from the date when the newly elected member
comes into office, is less than one year.
18. Sandeep Yashwantrao Sarode (supra) has then examined
the provisions of Clause (a) of the proviso to Section 151-A, and
has concluded that the only interpretation on a plain reading
of the provision to be given to the reckoning of the time period
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of one year, is that such period is to be calculated in relation to
date when the incoming member takes charge and not from
the date when the outgoing member has vacated his seat. The
consideration of Clause (a) of the Proviso is reproduced below:
17 Now, the question is, whether or not there is any violation of
mandate of section 151 of the R. P. Act, 1951 on the part of the
ECI, in the present case.
The answer to the question depends upon the resolution of the
second question, that we have posed for ourselves, as
hereinabove If the second question is answered in terms that the
exceptions given under the proviso to section 151-A of the R.P.
Act, 1951, have covered the situation of this case, the answer to
the first question would be that there is no violation of mandate
of section 151-A as regards the time frame prescribed thereunder
In the reverse case, the first question would have to be answered
as in the affirmative and we must say, if the answer is going to
be in the affirmative, a different situation is going to arise to deal
with as the consequences of such a situation are not specifically
provided for in the R.P. Act, 1951 and we would then find
ourselves landed in wilderness of election law But, for the
present, this is only hypothetical and so we would apply
ourselves to that situation, only if the occasion arises.
18. Upon a careful reading of the proviso to section 151-A, one
can say with reasonable certainty that the situation involved
herein is squarely covered by clause (a) of the proviso In fact, in
our opinion, it is also covered by clause (b) of the proviso. But,
for the present, we would express our mind to clarify as to how
the present case is covered by clause (a) of the proviso
19. According to Mr. Bhangde, learned Senior Advocate, the
situation herein is not at all covered by clause (a) of the proviso,
for the reason that the expression “the remainder of the term of
a member in relation to a vacancy”, has to be understood as
balance of the whole term of the member, whose seat has become
vacant, as contemplated under section 150 of the RP. Act, 1951
and the meaning of this expression cannot be understood de hors
the context of section 150 of the R.P Act, 1951. He submits that
this is the view taken by the ECI and correctness of this view
cannot be doubted He also points out that owing to such a view
entertained by the ECI, the ECI, as per the press note dated 9-10-
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2018 (Annexure-D, page 27D), declared that there was no need
to hold bye-election to the vacancies from the State of Andhra
Pradesh because the remaining term of the members was less
than one year from the date of occurrence of the vacancies,
which was 20-6-2018, and the term of 16th Lok Sabha was only
up to 3-6-2019 He submits that thus, the remainder of the term
of a member, for the purpose of clause (a) of the proviso, has
always been understood by the ECI as balance term to be
reckoned from, not the date of declaration of the result of the
incoming candidate but, from the date of occurrence of the
vacancy on account of acceptance of the resignation of the
previously or firstly elected candidate
20. The argument has been disagreed to by Mr. Bhandarkar,
learned Advocate for the petitioner, Mr Ghare and Mr Dangre,
learned Advocates for the intervenors, propping the stand of the
petitioner They submit that the use of indefinite article “a”, in the
said expression is significant and it conveys clearly the intention
of the legislature that the expression “the remainder of the term
must be understood in relation to an incoming member and not
the one who has vacated the seat
21. According to us, the language employed in clause (a) of the
proviso is unambiguous, plain and clear. It conveys
unmistakably the Intention of the legislature and, therefore, we
do not think that it would be permissible for us to read the
expression in the context of any other section including section
150 of the R.P.ACT, 1951 as a means of external aid for
understanding the correct meaning of the language employed in
the proviso. This rule, it is needless to say, is the rule of literal
interpretation and has been considered to be the first principle
on the anvil of which a statute must be interpreted. It is only
when the language is ambiguous or unclear that any external
help for interpreting a statute can be resorted to. A useful
reference, in this regard, may be made to the law laid down by
the Hon’ble Apex Court consistently over a period of time in its
various judgments, some of which are, S.P. Gupta v. Union of
India, reported in 1981 Supp SCC 87, State of Maharashtra v.
Marwanjee F. Desai, reported in (2002) 2 SCC 318, and
Principal Chief Conservator of Forest v. J.K. Johnson, reported
in (2011) 10 SCC 794. Just to lend support to what we have said
now, we would like to refer to elucidation of this principle made
by the Hon’ble Apex Court in S.P. Gupta v. Union of India, supra,
particularly in paragraph 199, in the following words.
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“199. But there is one principle on which there is complete
unanimity of all the Courts in the world and this is that where
the words or the language used in a statute are clear and
cloudless, plain, simple and explicit unclouded and unobscured,
intelligible and pointed so as to admit of no ambiguity,
vagueness, uncertainty or equivocation, there is absolutely no
room for deriving support from external alas. In such cases, the
statute should be interpreted on the face of the language itself
without adding, subtracting or omitting words therefrom.
22. As stated earlier, language of clause (a) of proviso to section
151 connotes in the plain and grammatical sense of the words
used therein and as such, we are of the view that, it is not
necessary for us to understand the expression, in the context of
any other section, including section 150 of the RP Act, 1951. This
is all the more so because section 151-A begins with a non
obstante clause, declaring the exclusion of other sections by the
Parliament in the words, “Notwithstanding anything contained
in section 147, section 148, section 149, section 150 and section
151“. This would necessitate exclusion of the consideration of the
aforesaid sections for eliciting and understanding the meaning
of the substantive part as well as the proviso part of section 151-
A.
23. When we consider the expression, “the remainder of the term
of a member in relation to a vacancy”, employed in clause (a) of
the proviso, what comes forth, in a prominent manner, is the
presence of definite and indefinite articles, “the” and “a”
respectively Article the”, conveying the certainty or specificity
has been used for Indicating the meaning of the word “term” and
article a Indefinite and uncertain characteristic has been used to
denote a person named as “a member”. The article “a” is again
used to Indicate “vacancy for filling of which the bye-election
could be held It would mean that while the balance term is
definite, a member as well as a vacancy are something which are
not yet known or which are still unspecified The overall meaning
of the whole expression, as plainly conveyed by the language
used, is that the balance term when reckoned from the date of
declaration of the result of bye-poll, would be Certain and the
“member” contemplated in clause (a) is unspecified and so is a
“vacancy”, which such unspecified person is going to fill through
the bye-election. If this were not so, the legislature would have
used the definite article “the” to specify a particular person as the
member whose vacancy has arisen owing to his resignation or
occurrence of other contingency stipulated in section 150 of the
R.P Act, 1951 The conclusion is inevitable The remainder of the
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term of a member means the remaining term an incoming
member would get from the date of declaration of the result of
the bye-election from out of total term of five years.
19. In Sandeep Yashwantrao Sarode (supra), this Court has
specifically held in paragraphs 22 and 23 thereof that the
language deployed to Clause (a) of the Proviso to Section 151-
A, if read with the non-obstante clause “Notwithstanding
anything contained in section 147, section 148, section 149,
section 150 and section 151” with which the main Section
opens, leaves no manner of doubt that the words “remainder
of the term of a member” means the remaining term the
incoming member would get from the date of declaration of
the result of the bye-election, in relation to the total term of 5
years. This is the ratio of the judgment of this Court in
Sandeep Yashwantrao Sarode (supra).
20. The ratio of this judgment and its applicability to another case
before the Nagpur Bench of this Court came up in Anil Dubey
(supra), where the term of the Assembly of 5 years was from
27.11.2019 to 26.11.2024. The seat of the sitting MLA fell
vacant due to his death on 03.11.2023 and the Election
Commission sought to hold bye-elections by issuing a
Notification to that effect on 16.03.2024 fixing the date of poll
on 26.04.2024 and the date of counting on 04.06.2024. The
result of the bye-election could therefore be known only on
04.06.2024, whilst the term of the Assembly expired on
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26.11.2024, which was hardly 5 months. In these set of facts,
this Court considered the question, as formulated in paragraph
9 of the said judgment, as to whether words “remainder of the
term” used in proviso (a) to Section 151-A of the RP Act refers
to the balance term available for the newly elected member in
such bye-election or whether the period of one year referred to
in the said proviso is to be counted from the date of occurrence
of the vacancy.
21. Anil Dubey(supra) has considered the ratio of the judgment
in Sandeep Yashwantrao Sarode(supra) and has
concluded that the interpretation of Clause (a) of proviso to
Section 151-A, as held in Sandeep Yashwantrao Sarode
(supra) is to be applied in all cases where the period of less than
one year is left as the balance term an incoming member would
get from the date of declaration of the result of the bye-
election; consequently it held the impugned Notification
declaring the bye-election, in contrary to proviso (a) and
declared that the bye-election shall not be held.
22. We take note that Sandeep Yashwantrao Sarode(supra)
was carried to the Supreme Court in SLP (Civil) No.11207/
2019 by the Respondent in the original petition, and not by the
Election Commission of India. That SLP was dismissed by the
Supreme Court as withdrawn at the behest of the private
Respondent on 01.04.2019. Thus, the Election Commission
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accepted the interpretation of the Bombay High Court of
Clause (a) of proviso to Section 151-A as rendered in Sandeep
Yashwantrao Sarode(supra).
The Election Commission of India has also accepted this
interpretation in Anil Dubey(supra) by not assailing the
judgment any further. It is surprising to us that the Election
Commission is now heard to be arguing full throat before us
that the view taken in Sandeep Yashwantrao
Sarode(supra) is a wrong view and requires to be referred to
a larger Bench since it has not considered a binding precedent
rendered by the Supreme Court in Pramod Laxman
Gaudadhe (supra) where, according to the Election
Commission, the same provisions have been interpreted
differently.
23. We have perused the judgment of the Hon’ble Supreme Court
in Pramod Laxman Gaudadhe(supra) and would conclude
that in the said judgment of the Supreme Court, the question
decided was quite different.
In arriving at the aforementioned conclusion we have had
the advantage of perusing the judgment of this Court in
Pramod Laxman Gaudadhe v/s. Election Commission
18where the facts are reproduced in paragraph 4 thereof. What
18
2018 SCC OnLine Bom 1111
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this Court noted was that the resignation of the sitting member
of Parliament was accepted on 14.12.2017 and the term of
Parliament was up to June, 2019. The bye-election was to take
place in May,2018. On facts therefore, the period which was
left for the incoming member was more than one year. It was
in these set of facts, that this Court rejected the petition. There
is no clear ratio laid down in that judgment as it was rendered
purely on facts.
24. On an appeal filed before the Supreme Court, the Supreme
Court considered exactly the same set of facts, in Pramod
Laxman Gaudadhe (supra)as can be seen from the
observation made in paragraphs 5 and 8 thereof which are
reproduced below:
“5. As the seat fell vacant, the petitioner, a public-spirited
person, approached the High Court of Judicature at
Bombay, Nagpur Bench at Nagpur under Article 226 of
the Constitution in Public Interest Litigation No. 31 of
2018 contending, inter alia, that if the election
commenced in the month of May 2018 the effective
period which the new incumbent would get is only up to
March 2019, that is, less than one year and, therefore, he
would not be in a position to function with all vigor and
render service to the public and further, there shall be
huge expenditure in conducting the election He had
drawn support from Report No. 255 of the Law
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stand that holding of election was not permissible under
the said provision.
8. The dates pertaining to the holding of election and the
resignation are not controverted. Further, it is not a case
where an election petition was pending against the
elected candidate before the High Court. It is also not in
dispute that the General Election to the Lok Sabha is to
be held in June 2019.”
25. After taking note of the fact that even if the election is held in
May,2018 the next general election is due in June, 2019 which
gave the new member of Parliament a tenure of one year.
Further in paragraphs 5 and 8, the Supreme Court refers to the
provisions of Section 151-A and then rejected the appeal in the
facts of the case holding that the sitting member of Parliament
resigned on 08.12.2017, his resignation was accepted on
14.12.2017, the term of the sitting member of Parliament was
up to June,2019 and therefore there was more than a year of
the term remaining, which justified the holding of the bye-
election. The above position has been further clarified in
paragraph 18 of the judgment where the Supreme Court,
considers the factual position and holds that on facts, the case
would not be covered by Clause (a) of proviso to Section 151-A.
Paragraph 18 is reproduced below:
“18. In the case at hand, no election petition was pending The
elected candidate tendered his resignation on 8-12-2017 and
the same was accepted by the Speaker of Lok Sabha on 14-
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WP-235-2026, wp-237-2026 & mca-186-202612-2017) The command of Section 151-A is to hold the
election within a period of six months from the date of
occurrence of the vacancy As the factual score 12011 depicts,
the vacancy occurred when the resignation was accepted by
the Speaker of Lok Sabha on 14-12-2017. It is beyond any
dispute that the next General Election to Lok Sabha is in
June 2019 Therefore, the remainder of the term is not less
than one year. Whether the election is to be held or not would
be governed by clause (b) to the proviso to Section 151-A and
we are not concerned with the same. The ground raised that
the code of conduct would come into play before the elections
are held in June 2019 is absolutely sans substance as the Act
does not contemplate so. It is the period alone that should be
the governing factor subject to the pendency of election
petition because that is not controlled by the non obstante
clause Such an interpretation is in accord with the sanctified
principle of democracy and the intention of Parliament is
not to keep a constituency remaining unrepresented. The
concern expressed with regard to load on the exchequer
cannot be treated as a ground. It is so because the
representative democracy has to sustain itself by the elected
representatives. We may hasten to add that the matter
would be different when an election dispute is pending
against the candidate that comes within the ambit and
sweep of Section 84 or Section 98(c) or Section 101(b) of the
Act. That not being the case, the view expressed by the High
Court is absolutely impregnable.”
26. One of the arguments raised before the Nagpur Bench of this
Court in Sandeep Yashwantrao Sarode(supra) was that
the observations made by the Supreme Court in Pramod
Laxman Gaudadhe(supra) in paragraph 18 thereof were
binding on this Court as the Supreme Court had interpreted
the provisions of Clause (a) of proviso to Section 151-A therein.
This argument was considered, and after dealing with the
contents of the judgment in Pramod Laxman
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Gaudadhe(supra), and the submissions made of the binding
nature of the said judgment, this Court has distinguished that
judgment on its facts, and has held that the observations made
in paragraph 18 of the judgment, which are reproduced in the
preceding paragraph, are not the ratio of the judgment. This
Court observed that the observations in paragraph 18 are only
in relation to the peculiar facts of that case and rejected the
submission. The relevant paragraphs dealing with this
argument are reproduced below:
“25. There is one more reason for making such an
interpretation, as we have just made for clause (a). If the
balance term is to be understood in relation to the member
who resigns and, therefore, it is to be reckoned from the date
on which his resignation is accepted, in some cases,
anomalous situation is likely to arise. To Illustrate the point,
we may give here one example An elected representative,
after occupying the seat for a period of one year out of the
total term of five years, resigns upon completion of one year
of the term and his resignation is accepted The consequent
vacancy is then filled by another member through a bye
election held for the seat The second elected member also
resigns and his resignation is accepted, just about a few
months, say for instance six months before the expiry of the
total period of five years Realistically speaking, in this case,
the balance of the whole term of five years is only six months
but, if we go by the interpretation canvassed on behalf of the
ECI, this balance or the remainder of the term has to be
reckoned from the date on which the vacancy arose for the
first time, on account of resignation of the first elected
member, which would always be more than one year though
the ground reality is different. This is an anomaly which
occurs if the view of the ECI is accepted. But, this is not the
intention of the legislature. The intention is to ensure that a
member, who is elected in a particular poll held for filling
the casual vacancy, is assured of a reasonable term and not
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assembly seat a ceremonial or symbolic post in order to
avoid such a situation, the legislature has prescribed that
the rigor of section 151-A to hold a bye-election within the
period of six months from the date of occurrence of the
vacancy would be relaxed in a case where the period an
incoming member would get, is less than one year.
26. According to Mr Bhangde, learned Senior Advocate, the
view of the ECI regarding calculation of the balance term
also receives support from some of the observations of made
by the Hon’ble Supreme Court in the case of Pramod
Laxman Gudadhe v Election Commission of India, reported
in 2019 (2) Mh LJ (SG) 546 (2018) 7 SLC 550 Referring to
the observations made in paragraph 18 of this case, Mr
Bhangde submits that the remainder of the term must be
calculated from the date of occurrence of the vacancy. This
has been opposed to by the learned Advocate for the
petitioner and the learned Advocates supporting the
petitioner They submit that there is no decision rendered nor
any conclusion made in this case as to the manner of
reckoning the remainder of the term.
27. On a Closer scrutiny of the judgment in the said case of
Pramod Laxman Gudadhe, supra, we find that there is no
categorical determination made by the Hon’ble Apex Court
that the remainder of the term means the balance term
determined from the date of the occurrence of the vacancy.
In paragraph 18, the Hon’ble Apex Court bas noted some of
the facts and on their basis, has observed that in that case
the remainder of the term was not less than one year. It has
been observed that factual score of that case showed that
the vacancy occurred when the resignation was accepted
by the Speaker of Lok Sabha on 14-12-2017, that it was
beyond any dispute that the next general election of the Lok
Sabha was in June, 2015, and then a conclusion was
reached in words, Therefore, the remainder of the term is
not less than one year.” It is significant to note here that in
that case, a casual vacancy had arisen for a Lok Sabha seat
on 14 12 2017 and, as seen, from the facts noted in
paragraph 5 of the judgment, the election to fill the vacancy
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Court had found that the effective period, which the new
member would get in that case was only up to March, 2019
It was in the context of these facts, the Hon’ble Apex Court
held that when the elections to Lok Sabha were slated to be
held in March, 2019, in any case, the remainder of the term
was not going to be less than one year further held that the
High Court was not correct to consider the application of
Code of Conduct to a period, which was part of the
remainder of the term, to say that the effective term was
less as RP Act, 1951 did not contemplate so it was also
observed that it was the period alone that should be the
governing factor subject to the pendency of the election
petition because that is not controlled by non obstante
clause It would be thus clear that the observations made by
the Hon’ble Apex Court are only in relation to these peculiar
facts noted in the judgment and they do not constitute the
principle that the remainder of the term is something which
must be reckoned from the date of occurrence of the
vacancy We express our respectful disagreement with the
learned Senior Advocate accordingly.”
27. Thus, this Court has considered whether Pramod Laxman
Gaudadhe(supra) lays down a binding precedent on the
interpretation of Clause (a) of proviso to Section 151-A, and has
categorically negated this submission, holding that the said
Judgment does not lay down any interpretation on the date
from which the period of one year is to be reckoned in Clause
(a) of the proviso. We are of the considered opinion that the
interpretation of this Court of what is decided in Pramod
Laxman Gaudadhe(supra) is itself a precedent and would
be binding on a Coordinate Bench of the same High Court. The
Judgment is certainly not per incurium since it has considered
in detail the observations of the Supreme Court in Pramod
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Laxman Gaudadhe (supra) and then held that the
observations in paragraph 18 thereof are not the ratio of the
Judgment but is a decision based on the peculiar facts. We are,
therefore, bound by the observations of this Court in
paragraph 27 of the Judgment of Sandeep Yashwantrao
Sarode(supra), wherein this Court has held that the Supreme
Court, in Pramod Laxman Gaudadhe(supra) has not given
any categorical determination that the remainder of the term
referred to in Clause (a) of proviso to Section 151-A means the
balance term determined from the date of the occurrence of
the vacancy.
28. We are fortified in our view that the observations in paragraph
26 of this Court in Sandeep Yashwantrao Sarode(supra)
are binding precedent and therefore binding on this Bench, by
the observations of the Supreme Court in the following case
law.
In Union of India and Others v/s Dhanwanti Devi
and Others 19 , the Supreme Court, considering a similar
argument, where the submission made was that the
observations in a Judgment did not operate as ratio decidendi
19
(1996) 6 SCC 44
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to be followed as a precedent since the same were per se per
incurium. The relevant passages of the Judgment are quoted
below:
“9. Before adverting to and considering whether
solatium and interest would be payable under the Act, at
the outset, we will dispose of the objection raised by Shri
Vaidyanathan that Hari Krishan Khosla case is not a
binding precedent nor does it operate as ratio decidendi
to be followed as a precedent and is per se per incuriam.
It is not everything said by a Judge while giving
judgment that constitutes a precedent. The only thing in
a Judge’s decision binding a party is the principle upon
which the case is decided and for this reason it is
important to analyse a decision and isolate from it the
ratio decidendi. According to the well-settled theory of
precedents, every decision contains three basic
postulates (1) findings of material facts, direct and
inferential. An inferential finding of facts is the inference
which the Judge draws from the direct, or perceptible
facts. (11) statements of the principles of law applicable
to the legal problems disclosed by the facts, and (1)
judgment based on the combined effect of the above. A
decision is only an authority for what it actually decides
What is of the essence in a decision is its ratio and not
every observation found therein nor what logically
follows from the various observations made in the
judgment. Every judgment must be read as applicable to
the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be b
found there is not intended to be exposition of the whole
law, but governed and qualified by the particular facts
of the case in which such expressions are to be found. It
would, therefore, be not profitable to extract a sentence
here and there from the judgment and to build upon it
because the essence of the decision is its ratio and not
every observation found therein. The enunciation of the
reason or principle on which a question before a court
has been decided is alone binding as a precedent. The
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it, but it is the abstract ratio decidendi, ascertained on a
consideration of the judgment in relation to the subject-
matter of the decision, which alone has the force of law
and which, when it is clear what it was, is binding It is
only the principle laid down in the judgment that is
binding law under Article 141 of the Constitution. A
deliberate judicial decision arrived at after hearing an
argument on a question which arises in the case or is put
in issue may constitute a precedent, no matter for what
reason, and the precedent by long recognition may
mature into rule of stare decisis. It is the rule deductible
from the application of law to the facts and
circumstances of the case which constitutes its ratio
decidendi.
10. Therefore, in order to understand and appreciate the
binding force of a decision it is always necessary to see
what were the facts in the case in which the decision was
given and what was the point which had to be decided.
No judgment can be read as if it is a statute. A word or a
clause or a sentence in the judgment cannot be regarded
as a full exposition of law cannot afford to be static and
therefore, Judges are to employ an intelligent technique
in the use of precedents. It would, therefore, be necessary
to see whether Hari Krishan Khosla case would form a
binding precedent. Therein, admittedly the question that
had arisen and was decided by the Bench of three Judges
was whether solatium and interest are payable to an
owner whose land was acquired under the provisions of
the Central Act? On consideration of the facts, the
relevant provisions in the Central Act and the previous
precedents bearing on the topic, the Court had held that
solatium 9 and interest are not a part of compensation.
It is a facet of the principle in the statute. The Central Act
omitted to provide for payment of solatium and interest
since preceding the acquisition the property was under
requisition during which period compensation was paid
to the owner. The position obtained and enjoyed by the
Government during the period of requisition continued
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without further h elaboration on entitlement to payment
of interest of an owner It is true that the decisions relied
on by Shri Vaidyanathan on the principle of payment of
interest as part of compensation in respect of land
acquired were brought to a the attention of this Court for
discussion. What would be its purport would be
considered a little later Suffice it to say for the present
that the finding that solatium and interest are not
payable for the lands acquired under the Central Act as
part of compensation is a binding precedent. Obviously.
therefore, this Court followed the ratio therein in Distt.
Judge case. The contention, therefore, that Hari Krishan
Khosla case cannot be treated as a binding precedent
since therein there is no ratio but a conclusion without
discussion, is not tenable and devoid of force. In that
view, it is not necessary to discuss in extenso the effect of
the decisions cited by Shri Vaidyanathan. Equally, the
contention of Shri Vaidyanathan that the ratio in Hari
Krishan Khosla case is in conflict with the ratio in
Satinder Singh case which was neither distinguished nor
overruled and that the decision of a coordinate Bench
cannot have the effect of overruling decision of another
coordinate Bench, cannot be given countenance. The
effect of the ratio in Satinder Singh case³ will be
considered a little later, suffice it to state that there is no
conflict in the ratio of these two cases if the facts in
Satinder Singh case are closely analysed and the
principle laid down therein is understood in its proper
perspective. Therefore, Hari Krishan Khosla case²
cannot be held to be per incuriam nor has it the effect of
overruling the ratio decidendi of Satinder Singh.”
29. Thus, as held in Union v/s. Dhanwanti (supra), to
understand and appreciate the binding force of a decision it is
necessary to see what were the facts in the case on which the
decision was taken; no Judgment can be read as a statute but
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must be read in context of the facts of the case. We are of the
considered opinion that this is precisely what this Court has
done in Sandeep Yashwantrao Sarode(supra), in
paragraph 26 and 27 thereof, where at it has considered the
specific facts, in the circumstances of which Pramod
Laxman Gaudadhe(supra) was decided by the Supreme
Court, and then gone on to hold that the observations in
paragraph 18 of the said Judgment does not categorically
determine the interpretation of Clause (a) of proviso to Section
151-A.
30. In National Insurance Company Limited v/s Pranay
Sethi and Others20, the Supreme Court was also considering
earlier decisions of that Court which dealt with the concept of
binding precedent. We find the relevant passages of that
Judgment relevant to the context of the present case.
(15) Presently, we may refer to certain decisions which deal with
the concept of binding precedent
16. In State of Bihar v Kalika Kuer, it has been held (SCC p. 454
para 10)
-10 an earlier decision may seem to be incorrect to a Bench
of a coordinate jurisdiction considering the question later, on the
ground that a possible aspect of the matter was not considered or
20
( 2017) 16 SCC 680
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not raised before the court or more aspects should have been gone
into by the court deciding the matter earlier hut it would not be a
reason to say that the decision was rendered(per incuriam and
liable to be ignored. The earlier judgment may seem to be not
correct yet it will have the binding effect on the later Bench of
coordinate jurisdiction.
The Court has further ruled (SCC p. 454, para 10)
10. Easy course of saying that earlier decision was rendered
per incuriam is not permissible and the matter will have to be
resolved only in two ways either to follow the earlier decision or
refer the matter to a larger Bench to examine the issue, in case it
is felt than earlier decision is not correct on merits
18. In this regard, we may refer to a passage from Jaisri Sahu
Rajdewan Dubey 28 (AIR p. 88. para 10)
“10 Law will be bereft of all its utility if it should be thrown into a
state of uncertainty by reason of conflicting decisions, and it is
therefore desirable that in case of difference of opinion, the
question should be authoritatively settled It sometimes happens
that an earlier decision29 given by a Bench is not brought to the
notice of a Bench30 hearing the same question, and a contrary
decision is given without reference to the earlier decision. The
question has also been discussed as to the correct procedure b to
be followed when two such conflicting decisions are placed before
a later Bench The practice in the Patna High Court appears to be
that in those cases, the earlier decision is followed and not the
later. In England the practice is, as noticed in the judgment in
Gundavarupu Seshamma v Kornepati Venkata Narasimharao³t
that the decision of a Court of Appeal is considered as a general
rule to be binding on it. There are exceptions to it, and one of them
is thus stated in Halsbury’s Laws of England, 3rd Edn. Vol. 22,
Para 1687. pp. 799-800
1687. the court is not bound to follow a decision of its own if given
per incuriam. A decision is given per incuriam when the court has
acted in ignorance of a previous decision of its own or of a court
of a coordinate jurisdiction which covered the case before it, or
when it has acted in ignorance of a decision of the House of Lords
In the former case it must decide which decision to follow, and in
the latter it is bound by the decision of the House of Lords
In Katragadda Virayva v. Katragadda Venkata Subbavya it has
been held by the Andhra High Court that under the circumstances
aforesaid the Bench is free to adopt that view which is in
accordance with justice and legal principles after taking into
consideration the views expressed in the two conflicting Benches,
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vide also the decision of the Nagpur High Court in DD. Bilimoria
v Central Bank of India33 The better course would be for the
Bench hearing the case to refer the matter to a Full Bench in view
of the conflicting authorities without taking upon itself to decide
whether it should follow the one Bench decision or the other We
have no doubt that when such situations arise, the Bench hearing
cases would refer the matter for the decision of a Full Court.
19. Though the aforesaid was articulated in the context of the
High Court, yet this Court has been following the same as is
revealed from the aforestated pronouncements including that of
the Constitution Bench and, therefore, we entirely agree with the
said view because it is the precise warrant of respecting a
precedent which is the fundamental norm of judicial discipline
20. In the context, we may fruitfully note what has been stated in
Pradip Chandra Parija v. Pramod Chandra Patnaik In the said
case, the Constitution Bench was dealing with a situation where
the two-Judge Bench35 disagreeing with the three-Judge Bench36
decision directed the matter to be placed before a larger Bench of
five Judges of this Court. In that scenario, the Constitution Bench
stated (SCC p. 4. para 6)
6 In our view, judicial discipline and propriety demands that
a Bench of two learned Judges should follow a decision of a Bench
of three learned Judges, But if a Bench of two learned Judges
concludes that an earlier judgment of three learned Judges is so
very incorrest that in no Circumstances can it be followed, the
proper course for it to adopt is to refer the matter before it to a
Bench of three learned Judges setting out. as has been done here,
the reasons why it could not agree with the earlier judgment.
21 In Chandra Prakash v. State of U P37, another Constitution
Bench dealing with the concept of precedents stated thus (SCC p
245, para 22)
“22 The doctrine of binding precedent is of utmost importance
in the administration of our judicial system It promotes certainty
and consistency in judicial decisions Judicial consistency
promotes confidence in the system, therefore, there is this need
for consistency in the enunciation of legal principles in the
decisions of this Court. It is in the above context, this Court in
Raghubir Singh 38 held that a pronouncement of law by a
Division Bench of this Court is binding on a Division Bench of the
same or smaller number of Judges….
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Be it noted, Chandra Prakash³¹ concurred with the view
expressed in Raghubir Singh 38 and Pradip Chandra Parija34
28. In this context, we may also refer to Sundeep Kumar Bafna v.
State of Maharashtra 45 which correctly lays down the principle
that discipline demanded by a precedent or the disqualification
or diminution of a decision on the application of the per incuriam
rule is of great importance, since without it, certainty of law,
consistency of rulings and comity of courts would become a costly
casualty. A decision or judgment can be per incuriam any
provision in a statute, rule or regulation, which was not brought
to the notice of the court. A decision or judgment can also be per
incuriam if it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a co-equal or larger Bench.
There can be no scintilla of doubt that an earlier decision of co-
equal Bench binds the Bench of same strength, Though the
judgment in Rajesh case was delivered on a later date, it had not
apprised itself of the law stated in Reshma Kumari¹ but had been
guided by Santosh Devin We have no hesitation that it is not a
binding precedent on the co-equal Bench.
The argument raised on behalf of the Election
Commission that this Court in Sandeep Yashwantrao
Sarode(supra) is per incurium the observations made in
Pramod Laxman Gaudadhe (supra) must be rejected in
the light of the observations made in aforementioned
Judgment of the Supreme Court, more particularly in the light
of the observations that an earlier decision of a co-equal Bench
binds the Bench of the same strength. We therefore reiterate
that the precedent laid down on the interpretation of the
provisions of Clause (a) of proviso to Section 151-A by a
Coordinate Bench of this Court in Sandeep Yashwantrao
Sarode(supra) is binding on us and must be followed by us in
its application to the facts and challenge in the present
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Petition. In the light of what we have held in the preceding
paragraphs, we answer Question A above, holding that the
Judgment rendered in Sandeep Yashwantrao
Sarode(supra) is a binding precedent and therefore the view
taken therein binds this Coordinate Bench.
31. We are also of the opinion that the Judgment of this Court in
Sandeep Yashwantrao Sarode(supra) is not rendered sub
silentio since the particular point of law involved, i.e. the
interpretation of Clause (a) of proviso to Section 151-A was
considered from every possible angle, including by considering
the Judgment of Pramod Laxman Gaudadhe (supra) and
holding that the same did not apply on facts and that the same
is not a ratio and precedent for the interpretation of Clause (a)
of proviso to Section 151-A. Further, as held in State of
Madhya Pradesh v/s. Dewadas (supra), the Reports of the
Law Commission or for that matter of the Committee for
Electoral Reforms cannot be considered for the purpose of
interpreting the aforementioned provision or to conclude the
intention of Parliament whilst legislating Section 151-A, more
so since what was legislated by Parliament, is in fact contrary
to the recommendation of the Report. We are fortified in our
view by the observations of the Supreme Court in State of
Madhya Pradesh v/s. Dewadas (supra) which are
reproduced below:
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WP-235-2026, wp-237-2026 & mca-186-2026“7. In Narendrasingh case, the State Government being
desirous of preferring an appeal against acquittal under
sub-section (1) of Section 378, made an application for
grant of leave under sub-section (3) and the proposed
memorandum of appeal was annexed thereto. An appli-
cation was filed on behalf of the State Government stat-
ing that the prayer for grant of leave under sub-section
(3) be treated as a part of the appeal itself and not sepa-
rately. It was further prayed that the case, which had
originally been registered as a Miscellaneous Criminal
Case relating to the grant of leave, should be registered
as a ‘Criminal Appeal. The matter was, therefore, placed
before a Division Bench. The learned Judges of the High
Court referred to the report of the Law Commission and
observed that the legislative object in re-enacting the
provisions of Section 417 of the old Code with the addition
of the new provision contained in sub-section (3) of Sec-
tion 378 of the Code, was that there had to be a further
scrutiny of a State appeal by the court even prior to the
stage of admission, requiring the court to consider at the
very outset whether the appeal should be entertained or
not. It was only after the appeal was entertained with the
‘leave’ of the Court that it had to be heard for admission
and it may be dismissed summarily without notice to the
other side. It was further observed that the legislature
brought about the change while accepting the recom-
mendation of the Law Commission to retain the power of
the High Court to dismiss State appeals summarily with-
out notice to the respondents.
..
..
11.There is no warrant for the view expressed by the High
Court in Nerendrasingh case that the legislative object in
re-enacting the provisions of Section 417 of the old Code
with the addition of the new provision contained in sub-
section (3) of Section 378 of the Code, was that there was
to be a preliminary scrutiny of a State appeal by the
court even prior to the stage of admission, requiring the
court to consider at the very outset whether the appeal
should be entertained or not, and that it was only after
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the appeal was entertained with the leave of the court
that it was to be beard for admission under sub-section
(1) of Section 384 read with sub-section (1) of Section 385
of the Code. The High Court appears to rest its decision
mare on the Report of the Law Commissions than the ac-
tual language of sub-section (3) of Section 378 of the
Code, in coming to the conclusion that sub-section (3)
contemplated two stages Sub-section (3) of Section 378
is not susceptible of any such construction. The Law
Commission in its 48th Report had observed
While one may grant that cases of unmerited acquittal
do arise in practice, there must be some limit as to the
nature of cases in which the right should be available.
And, keeping in view the general rule in most common
law countries not to allow an unrestricted right of appeal
against acquittals, it recommended
With these considerations in view, we recommend that
appeals against acquittals under Section 417, even at the
instance of the Central Government or r the State Go
Government, should be allowed only if the High Court
grants special leave
It may be pointed out that even now the High Court can
summarily dismiss an appeal against an acquittal, or for
that matter, any criminal appeal. (Section 422, Criminal
Procedure Code)
Therefore, the amendment which are recommending will
not be so radical a departure as may appear at the first
sight. It will place the State and the private complainant
on equal footing Besides this, we ought to add that under
Section 422 of the Code, it is at present competent to the
appellate court to dismiss the appeal both of the State
and of the complainant against acquittal at the prelimi-
nary hearing.
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The recommendations of the Law Commission were not,
however, fully carried into effect. Sub-section (3) of Sec-
tion 378 of the Code was introduced by Parliament to
create a statutory restriction against entertainment of
an appeal filed by the State Government or the Central
Government under sub-section (1) or sub-section (2) of
Section 378 from an order of acquittal passed in a case
instituted otherwise than upon complaint. At the same
time, Parliament re-enacted sub-sections (3) and (4) of
Section 417 as sub-sections (4) and (5) of Section 378,
which deal with an order of acquittal -passed in any case
instituted upon a complaint. The result of this has been
that there is a difference in the procedure regulating en-
tertainment of State appeals against acquittals under
sub-section (1) or sub-section (2) of Section 378 and ap-
peals against acquittals filed by a complainant under
sub-section (5) of Section 378. On a comparison of the
language employed in sub-section (3) and sub-section
(4) of Section 378, it is clear that the legislature has cho-
sen to treat State appeals in a manner different from ap-
peals by a complainant in the matter of preferring ap-
peals against acquittals. In the case of an appeal from an
order of acquittal passed in a case instituted otherwise
than upon complaint preferred by the State Government
or the Central Government under sub-section (1) or sub-
section (2) of Section 378, the Code does not contemplate
the making of an application for leave under sub-section
(3) thereof, while the making of an application under
sub-section (4) of Section 378 is a condition precedent for
the grant of ‘special leave’ to a complainant under sub-
section (5). The difference in language used in sub-sec-
tion (3) and sub-section (4) of Section 978 manifests the
legislative intent to preserve a distinction between the
two classes of appeals by prescribing two different pro-
cedures in the matter of entertainment of appeals
against acquittals. It, therefore, follows that the State
Government or the Central Government may, while pre-
ferring an appeal against acquittal under sub-section (1)
or sub-section (2) of Section 378, incorporate a prayer in
the memorandum of appeal for grant of leave under sub-
section (3) thereof, or make a separate application for
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grant of leave under sub-section (3) of Section 378, but
the making of such an application is not a condition prec-
edent for a State appeal. In the State of Rajasthan v.
Ramdeen“, this Court dealt with a case where the Raja-
sthan High Court granted the State Government leave to
appeal under sub-section (3) of Section 378 of the Code,
but dismissed the appeal filed there-after on the ground
that it had not been filed within 90 days from the judg-
ment appealed from and was therefore barred by limita-
tion under Article 114 of the Limitation Act, 1963. The ap-
plication for grant of leave under sub-section (3) con-
tained all the requisites of a memorandum of appeal and
had been filed within 90 days from the date of order of
acquittal but was not accompanied by a petition of ap-
peal. It was held that an appeal under sub-section (1) of
Section 378 was an integral part of an application for
leave to appeal under sub-section (3). Accordingly, the
order passed by the High Court dismissing the appeal as
barred by limitation was set aside. In dealing with the
question, it was observed: (SCC p. 633, para 8)
Under the law it will be perfectly in order if a composite
application is made giving the necessary facts and cir-
cumstances of the case along with the grounds which
may be urged in the appeal with a prayer for leave to
entertain the appeal. It is not necessary, as a matter of
law, that an application for leave to entertain the appeal
should be lodged first and only after grant of leave by the
High Court an appeal may be preferred against the or-
der of acquittal. If such a procedure is adopted, as above,
it is likely, as it has happened in this case, the appeal may
be time-barred if the High Court takes more than 90
days for disposal of the application for leave. The possi-
bility that the High Court may always in such cases con-
done the delay on application filed before it does not, in
law, solve the legal issue. The right conferred by Section
378(1), CrPC, upon the State to prefer an appeal against
acquittal will be jeopardised if such a procedure is
adopted, for in certain cases it may so happen that the
High Court may refuse to exercise its discretion to con-
done the delay. The right conferred under the section
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cannot be put in peril by an interpretation of Section 378,
CrPC which is likely to affect adversely or even perhaps
to destroy that right.
The view expressed by the High Court in Narendrasingh
case being in conflict with the decision of this Court in
Ramdeen case must be overruled.”
32. This brings us to the second Question for determination, i.e.
Whether, in the light of the submissions advanced on behalf of
the Election Commission of India, a case has been made out
for reference of the view taken in Sandeep Yashwantrao
Sarode (supra) to a larger bench of this Court?
33. Having held that Sandeep Yashwantrao Sarode(supra) is
a precedent binding on us, we would only have to examine
whether the submission of the Election Commission that this
is a fit case to exercise our powers under Rule 8 Chapter I of
the Bombay High Court Appellate Side Rules, to have the issue
involved herein to be answered more conveniently by a larger
Bench.
At the outset, we must observe that this is not a case where
there are two conflicting decisions of Coordinate Benches of
the Bombay High Court. All decisions of the Bombay High
Court on the interpretation of Clause (a) of proviso to Section
151-A are consistent. Sandeep Yashwantrao
Sarode(supra) also examines the submission that the view
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taken by the Supreme Court in Pramod Laxman Gaudadhe
(supra) is a binding ratio, and rejects that submission by
holding that the view taken by the Supreme Court in Pramod
Laxman Gaudadhe (supra) does not constitute a
determination made by the Apex Court on the interpretation
of Clause (a) of proviso to Section 151-A. Therefore, there is
hardly any case made out for a reference to a larger Bench of
this issue.
34. The provisions of Rule 8 of Chapter I of the Bombay High
Court Appellate Side Rules provides that if it appears to any
Judge that a matter more advantageously heard by a Bench of
two or more Judges, who may report to that effect to the Chief
Justice who shall make such order as he thinks fit. This is not
a case where there is a conflicting decision, as was the case in
Mohammad Farhan Shaik (supra), cited by the Election
Commission before us, since we see no conflicting view taken
by our High Court on the point. We therefore reject the
argument that a case has been made out to exercise powers
under Rule 8 of Chapter I of the Appellate Side Rules for
making a reference to a larger Bench in view of there being no
conflict in the Judgments, worth their reference.
35. The third point for determination is whether the impugned
Notification dated 15.03.2026 and 16.03.2026 to hold bye-
elections to fill the vacancy for the 21- Ponda Assembly
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Constituency of the State of Goa, calls for any interference in
writ jurisdiction of this Court?
36. Certain dates need to be taken note of for effectively deciding
this point. The elections to the Legislative Assembly of the
State of Goa were held on 14.02.2022 and its results were
declared on 10.03.2022. Late Ravi Naik was declared as the
winning candidate of 21-Ponda Constituency. Oath was
administered to him and 38 other MLAs on 15.03.2022 which
is the date on which the term of the Assembly commenced.
The term being for five years, the term of the current Assembly
ends on 14.03.2027.
Shri Ravi Naik passed away on 15.10.2025 rendering his
seat to be vacant on that date. The Election Commission issued
the impugned Notification for conducting bye-election to the
21-Ponda Constituency on 15.03.2026, which was published in
the Gazette on 16.03.2026.
37. The last date for taking nominations of candidates was
declared on 23.03.2026, the date for scrutiny of withdrawal of
candidatures was set down on 24.03.2026 and date by which
withdrawal of candidatures was to be recorded was
26.03.2026. The date of polling has been fixed on 09.04.2026,
the date of counting of votes 04.05.2026. Thus, the date by
which a newly elected MLA would be declared would be
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04.05.2026, though he would be perhaps sworn in on some
date thereafter.
Two other dates for calculating the period of one year for
the purpose of Clause (a) of proviso to Section 151-A are
relevant; the end of the term of the outgoing MLA, late Ravi
Naik, if counted from the date of his taking oath (15.03.2022)
is 14.03.2027. For the purpose of the main provision of Section
151-A, the period of six months within which the elections are
required to be held, to comply with the mandate is by
06.05.2026. The term of the Goa Legislative Assembly expires
on 14.03.2027. We also note that it is not the case of the
Election Commission that it has obtained a certificate seeking
to postpone the elections and depart from the mandate of the
six months under these provisions, in terms of Clause (b) of
proviso to Section 151-A.
38. Applying the interpretation that this Court has arrived at on
the provisions of Clause (a) of proviso to Section 151-A in
Sandeep Yashwantrao Sarode(supra), and considering
that the date on which the result of the upcoming election
would be announced on 04.05.2026, we observe that the
remainder of the period reckoned from this date till
14.03.2027 (when the term of the Assembly expires) is just
about nine months. The impugned Notification dated
16.03.2026 is therefore issued in contravention of the bar
under Clause (a) of proviso to Section 151-A. The said
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Notification issued by the Election Commission of India is
therefore arbitrary, issued contrary to Clause (a) of proviso to
Section 151-A and is therefore liable to be quashed and set
aside. Consequently, we pass the following Order:
ORDER
A. We declare that the impugned Notification dated 16.03.2026
issued by the Election Commission of India is contrary to the
provisions of Clause (a) of proviso to Section 151-A.
Considering that the remainder of the period left for the
person who might have been elected in the bye-elections to
the 21-Ponda Constituency, to represent the Constituency in
the Assembly is less than one year, the said Notification is
therefore arbitrary, and issued contrary to Clause (a) of
proviso to Section 151-A of the Representation of the People’s
Act. Consequently, we quash and set aside the impugned
Notification dated 16.03.2026.
B. We make Rule absolute in terms of prayer clause (A) of Writ
Petition No.235 of 2026 and prayer clause (a) in Writ
Petition No.237 of 2026.
C. In view of the disposal of the Writ Petitions No.235 of 2026
and Writ Petition No.237of 2026 and since we have heard the
Learned Counsel for the Intervener in Miscellaneous CivilPage 52 of 53
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application and the same stands disposed of.
39. After pronouncement of our Judgment, Learned Senior
Advocate Shri Rivankar for the Election Commission prays for
stay of the Judgment. He submits that the Election
Commission has recorded casting of 171 postal ballots and
other ballots apart from which elaborate arrangements have
been made for conducting elections which are to take place on
09.04.2026, i.e. tomorrow.
40. Considering that we have declared the impugned Notification
to be contrary to the provisions of Clause (a) of the proviso to
section 151-A of the RP Act, we do not consider the prayer for
stay to be tenable. The consequence of the declaration issued
by us that the impugned Notification is contrary to Clause (a)
of proviso to Section 151-A, must follow since the bye-elections
are now declared to be a nullity. We therefore reject the
application for stay of the Judgment.
AMIT S. JAMSANDEKAR, J. VALMIKI MENEZES, J.
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