Patna High Court
Bindeshwar Sah vs The Union Of India & Ors on 25 June, 2012
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3468 of 2009
===========================================================
Bindeshwar Sah, son of Sri Rambilash Sah, resident of Ward No.6, Nagar
Panchayat Dumra, P.S. Dumra, Dist. Sitamarhi (Bihar).
.... .... Petitioner
Versus
1. The Union of India, through its Secretary, Ministry of Parliamentary Affairs,
New Delhi.
2. The Secretary General, The House of People Parliamentary Annex, New Delhi.
3. The State of Bihar, through the Principal Secretary, Department of Legislative
Affairs, In-Patna (Bihar).
4. The Secretary, the Bihar Legislative Assembly, In-Patna (Bihar).
5. The Election Commission of India, through its Secretary, Nirvachan Sadan,
Ashoka Road, New Delhi.
6. Sri George Fernandise, S/o John. J. Fernandise, through the Secretary General,
the House of the People Parliament Street, New Delhi.
7. Sri Ram Bilash Paswan, the Minister of Chemical and Fertilizer, Govt. of India,
New Delhi.
8. Rabri Devi, W/o Sri Lalu Prasad, Leader of Opposition, Bihar Legislative
Assembly, Ane Marg, In-Patna (Bihar).
9. Shahid Ali Khan, the Minister, Science and Technology Deptt., Govt. of Bihar,
Patna-7, Polo Road, In Patna (Bihar).
.... .... Respondents
===========================================================
Appearance :
For the Petitioner : Mr. DILIP Kr. MISHRA, Adv.
For the State : Mr. Lalit Kishore, AAG-1
Mr. Prahalad Kr. Bhagat, AC to AAG-1
For the Union of India : Mr. Ashok Kr. Singh (S.C.C.G.)
For Election Commission : Mr. J.P. Karna, Sr. Adv.
===========================================================
CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV JUDGMENT
Date: 25-06-2012 Heard learned counsel for the parties.
2. In this writ application, the petitioner has prayed for the following relief:-
"1. That this application is being submitted to issue writ in the nature of quo-warranto or order or direction to the Respondent no.1 and 2 to remove the Respondent no.6 and 7 from the Membership of the House of the People Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 2 and further to the Respondent no.3 and 4 to remove the Respondent no.8 and 9 from the Membership of the Bihar Legislative Assembly and further to issue writ to the nature of mandamus to the Respondent no.1 to 4 respectively to recover fine for sits and votes by the Respondent no. 6, 7, 8 and 9 respectively in the House of the People and in the Bihar Legislative Assembly."
3. Learned counsel for the petitioner has submitted that the election of respondent nos. 6 & 7 as a Member of Lok Sabha (House of People) and that of respondent nos. 8 & 9 as Member of Bihar Vidhan Sabha (Bihar Legislative Assembly) was bad simply on the ground that they were not the elector of their respective parliamentary/assembly constituency to which they were elected. He has in this regard placed reliance on the judgment of the Apex Court in the case of K. Venkatachalam Vs. A. Swamickan & Anr. reported in AIR 1999 SC 1723, as also on the earlier judgments of the Apex Court in the case of S. Narayanaswami Vs G. Panneerselvam & Ors. reported in AIR 1972 SC 2284, in the case of G. Narayanaswami Vs. G. Pannersel Vam & Ors. reported in 1972(3) SCC 717, in the case of V.V. Giri Vs. D. Suri Dora & Ors. reported in AIR 1959 SC 1318 and in the case of Era Sezhiyan Vs. T.R. Balu & Ors. reported in AIR 1988 Madras 50.
4. Mr. Lalit Kishore, learned A.A.G. appearing for the State, on the other hand has submitted that the petitioner's reading Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 3 and understanding of law itself is not sound inasmuch as, a bare perusal of Article 84 and 173 of the Constitution of India read with mandate of law under Sections 4 & 5 of the Representation of People Act, 1951, (hereinafter to be referred to as '1951 Act) will make it abundantly clear that there is no requirement of law that as a Member of Lok Sabha or Vidhan Sabha must be an elector from that particular parliamentary/assembly constituency from which he is seeking his election. In this regard, learned AAG-1 has also clarified that whatever was observed by the Apex Court in the case of K. Venkatachalam (supra) has to be understood in the context of the facts of that case, inasmuch as, the ratio therein which has been laid down does not lay down an abstract proposition as has been sought to be canvassed by the learned counsel for the petitioner. In order to buttress his own stand, he has referred to the judgment of the Apex Court in the case of Rampakavi Rayappa Belagali Vs. B.D. Jatti & Ors. reported in 1970(3) SCC 147, Hari Prasad Mulshanker Trivedi Vs. V.B. Raju & Ors. reported in 1974(3) SCC 415, Election Commission of India & Anr. Vs. Dr. Manmohan Singh & Ors. reported in 2000(1)SCC 591, Union of India & Ors. Vs. Dudh Nath Prasad reported in 2000(2) SCC 20 and Shyamdeo Pd. Singh Vs. Nawal Kishore Yadav reported in 2000(8)SCC 46.
5. In the considered opinion of this Court, when the Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 4 petitioner has called in question the election of respondent nos. 6 & 7 primarily on the ground that the respondent no.6 was the resident of state of Karnataka and not an elector of Muzaffarpur Parliamentary Constituency and thus, his election as a candidate of the Janta Dal (U) Party in the Muzaffarpur Parliamentary Constituency or that the election of respondent no.7, a candidate of Lok Janshakti Party from Hajipur reserved constituency for Scheduled caste in the parliamentary general election held in the year 2004 to constitute 14th Loksabha to be bad on account of he was an elector of Khagaria parliamentary constituency the whole matter has to be viewed from the angle of requirement of law as laid down in the Constitution of India and 1951 Act. Since both the respondent nos. 6 & 7 were elected as Members of Lok Sabha, they had to essentially fulfill the requirement of Article 84 of the Constitution of India, which reads as follows:-
"84. Qualification for membership of Parliament- A person shall not be qualified to be chosen to fill a seat in Parliament unless he-
(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in teh House of the People, not less than twenty-five years of age; and Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 5
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament."
(Underlining for emphasis)
6. As would be apparent, the main attack of the petitioner against the election of Respondent no.6 and 7 as a member of Parliament, does not lie on any of the disqualification under Article 84(a) or (b) and in fact he has concentrated on the provision of Article 84(c) for its being read together with Section 4 of 1951 Act to contend that violation of any other law provided under Article 84(c) in the present case was infact the violation of the provision of Section 4 of the 1951 Act. In order to examine this aspect, it would be therefore also necessary to examine the provisions of Section 4 of the 1951 Act, which reads as follows:-
"4. Qualification for membership of the House of the People- A person shall not be qualified to be chosen to fill a seat in the House of the People unless-
(a) in the case of a seat reserved for the Schedules Castes in any State, he is a member of any of the Schedules Castes, whether of that State or of any other State, and is an elector for any Parliamentary constituency;
(b) in the case of a seat reserved for the Scheduled Tribes in any State (other than those in the autonomous districts Assam), he is a member of any of the Schedules Tribes, whether of that State or of any other State (excluding the tribal areas of Assam), and is an elector for any Parliamentary constituency;
(c) in the case of a seat reserved for the Schedules Tribes in the autonomous districts of Assam, he is a member of any of those Scheduled Tribues and s an elector for the Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 6 Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district.
(cc) in the case of the seat reserved for the Scheduled Tribes in the Union territory of the Lakshadweep, he is a member of any of those Scheduled Tribes and is an electro for the Parliamentary constituency of that Union territory; (ccc) in the case of the seat allotted to the State of Sikkim, he is an elector for the Parliamentary constituency for Sikkin;
(d) in the case of any other seat, he is an elector for any Parliamentary constituency."
(underlining for emphasis),
7. There is no doubt that the respondent no.6 was contesting for a general seat of parliament, inasmuch as, Muzaffarpur parliamentary constituency is not a reserved seat and, therefore, for that constituency, a person in terms of Section 4(d) of the Act had to be an elector from any parliamentary constituency and not necessarily from Muzaffarpur parliamentary constituency as is clear from the aforementioned underlined portion of Section 4(d) of the 1951 Act, extracted above. The Legislature in its own wisdom, when it has clearly provided that an elector of any parliamentary constituency can contest and become Member of the House of People (Lok Sabha), it would be difficult for this court to read the word 'any' by substituting it the word 'the'. In view of the above, there would be no difficulty in holding that the election of the respondent no.6 in the year 2004 was absolutely valid, inasmuch Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 7 as, even the petitioner admits that the respondent no.6 was an elector of Banglore parliamentary constituency.
8. Similarly, as with regard to the challenge to the election of respondent no.7, there is no doubt that for him the qualification had to be found out in the reserved seat for scheduled caste and again Section 4(a) of the 1951 Act would by itself be complete answer to the submission of the learned counsel for the petitioner. In the writ application it has been admitted that the respondent no.7 was elected as a Member of Lok Sabha from Hazipur parliamentary, a reserved constituency for scheduled caste, while he was registered as an elector in Khagaria parliamentary constituency. The moment, the petitioner does not assail the factum of respondent no.7 belonging to a scheduled caste and his also being an elector from Khagaria constituency, it would be futile for him to contend that his election was bad merely because he was not an Elector in Hazipur parliamentary reserved constituency, inasmuch as, there is no requirement under Section 4 of 1951 Act read with Article 84 of the Constitution of India that one must be an elector of a particular parliamentary constituency in which he is seeking election. Section 4(a) of the 1951 Act clearly lays down that the candidate must be elector of any parliamentary constituency.
9. At this place, it would also be relevant to note the facts Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 8 relating to the election of respondent nos. 8 and 9, inasmuch as, the line of attack of the petitioner is common for all four of them wherein the plea has been taken that since all four of them were not an elector in their respective parliamentary/assembly constituency, their election was bad. In this regard, it has been the case of the petitioner that though the respondent no.8 was elected from Raghopur assembly constituency but she was actually an elector only in Patna assembly constituency. As with regard to the respondent no.9, the attack of the petitioner is that though he was an elector in Major Ganj assembly constituency he had got elected from Pupri assembly constituency.
10. Alike Article 84 of the Constitution of India laying down qualification for membership of Parliament, Article 173 of the Constitution of India lays down qualification for membership of the State Legislature, which reads as follows:-
"173. Qualification for membership of the State Legislature.
- A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he -
(a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and in the case of a seat in the Legislative Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 9 Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament."
(underlining for emphasis)
11. Section 5 of the 1951 Act lays down qualification for membership of Legislative Assembly providing interalia:-
"5. Qualifications for membership of a Legislative Assembly.- A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless -
(a) in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector or any Assembly constituency in that State;
(b) in the case of a seat reserved for an autonomous district of Assam, he is a member of a Scheduled Tribe of any atonomous district and is an elector for the Assembly constituency in which such seat or any other seat is reserved for that district; and
(c) in the case of any other seat, he is an elector for any Assembly constituency in that State :
Provided that for the period referred to in Cl. (2) of Art. 371- A, a person shall not be qualified to be chosen to fill any seat allocated to the Tuensang district in the Legislative Assembly of Nagaland unless he is a member of the regional council referred to in that Article."
12. Here again, the submission of the learned counsel for the petitioner in terms of Article 173 of the Constitution of India read with Section 5 (c) of the 1951 Act is that a person in order to eligible to be elected as a Member of Legislative Assembly must be an elector of that particular constituency in which he or she seeking Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 10 his or his election and the moment one does not fulfill this qualification of being elector of that particular assembly Constituency, his or her election has to be held to be bad. In the considered opinion of this Court, the plain construction of Section 5(c) of the 1951 Act does not brook any two interpretations, inasmuch as, in Section 5(c) again there is a clear indication that he has to be an Elector from "any assembly constituency in that State". It is not in doubt that the respondent nos. 8 & 9 are the Elector in the State of Bihar as is also admitted by the petitioner in paragraph no.4 of the writ application, which for the sake of clarity, is quoted hereinbelow:-
"4. That the Respondent No.-6 being a citizen of India of the State of Karnataka and non elector of the Muzaffarpur Parliamentary Constituency was a candidate of Janta Dal (U) in the Muzaffarpur Parliamentary constituency in Parliamentary General election 2004 to constitute 14th Lok Sabha and he was elected from that very constituency as well as he was an elector in a Parliamentary constituency of the State of Karnataka and he was always contested the election and elected from a Parliamentary constituency of the State of Bihar and he was Union Minister.
The Respondent No.-7 being a citizen of India of the State of Bihar and Scheduled Casts of the State of Bihar was candidate of Lok Janshakti Party from the Parliamentary constituency Hajipur reserved for the Scheduled casts in the State of Bihar in Parliamentary general election 2004 and he was and he is not an elector in the Hajipur Parliamentary constituency but he is an elector in the Khagaria Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 11 Parliamentary constituency and he is Union Minister and he never elected from the Parliamentary constituency where he is an elector.
The Respondent no.8 being a citizen of India of the State of Bihar and elector in the Patna Assembly Constituency and non elector of the Legislative Assembly constituency Raghopur was a candidate of R.J.D. from the Raghopur Assembly constituency in 2005 Assembly General Election and she was elected there from and the respondent no.9 was an elector in majorganj assembly constituency was a candidate of Jantadal (U.) from Pupri Assembly Constituency in 2005 Assembly Election and he was elected there from and is a Minister in the Govt. of Bihar.
In the aforesaid facts it is most respectfully submitted tht the Respondent no.-6 the Citizen of India of the State of Karnataka and non elector of the Muzaffarpur Parliamentary constituency is elected as a member of the House of the People. The Respondent no.-7 being a citizen of India of the state of Bihar and the Scheduled Casts of the State of Bihar and the Scheduled Casts of the State of Bihar is elected from the Hajipur Parliamentary Constituency reserved for the Scheduled Casts of the State of Bihar living in the Hajipur Parliamentary Constituency and the Respondent no.-8 being a Citizen of India of the State of Bihar is elected from the Raghopur Assembly Constitue3ncy which was for the citizen of India living in the Raghopur Assembly Constituency of the State of Bihar and the Respondent no.-9 is elected from Pupri Assembly Constituency which was for the citizen of India living in Pupri Constituency."
(underlining for emphasis)
13. In view of the aforementioned pleadings and the plain and simple provision of Article 84 read with Section 4(a) and (d) of Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 12 the 1951 Act as well as Article 173 read with Section 5(c) of the 1951 Act there does not remain any iota of doubt that respondent nos. 6, 7, 8 & 9 did not incur any disqualification merely because they were not recorded as an elector in the respective parliamentary/assembly constituency from which they got elected in 2004 Parliamentary General Election and 2005 State of Bihar General Election.
14. Learned counsel for the petitioner, however, has heavily relied on paragraph no.25 of the judgment of the Apex Court in the case of K. Venketechalam (supra) to contend that if a person was not an elector in the electoral roll of a particular parliamentary/assembly constituency, he could not be elected as a M.P. or M.L.A. from that constituency. In the considered opinion of this Court, whatever has been recorded by the Apex Court in paragraph no.25 of the judgment in the case of K. Venketchalam (supra) has to be noted in the context of the facts of that case, inasmuch as, the law therein has been only laid down by holding that the candidate namely Mr. K. Venketchalam was not at all an elector for any assembly constituency in the State of Tamilnadu and had in fact impersonated as an elector having the same name but having different parentage for projecting himself to be an elector of Lalgudi assembly constituency. In fact, this aspect of the matter Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 13 becomes more clear in the corresponding judgment of the Madras High Court reported in the case of A. Swamickan Vs. K. Venkatachalam & Anr. reported in AIR 1987 Madras 60 from which the appeal was carried to the Apex Court in the case of K. Venketchalam (supra). It is in the high court judgment that this factual aspect of the matter has been clarified in detail wherein it was recorded as follows:-
"8. When the matter was listed for admission and we were prima facie satisfied that though the name of the first respondent was Venkatachalam he was not the person whose name was found in the electoral roll for the Lalgudi Assembly Constituency, we issued a notice of motion to the first respondent. We wanted to be sure as to whether the allegations made by the petitioner that the first respondent is not that Venkatachalam whose name is to be found in the electoral roll of Lalgudi Assembly Constituency at serial 739. Therefore, when the first respondent appeared in response to the notice of motion, we asked the learned counsel appearing for him, just to tell us at what serial number in the electoral roll for the Lalgudi Assembly Constituency or for any other assembly constituency the name of the first respondent was to be found. We were, however told by the learned counsel that there is no occasion for the first respondent to disclose anything to the Court and in any case the first respondent wants to take the stand that this Court is prevented from going into the question of validity of his election in view of Art. 329 (b) of the Constitution. the first respondent was thus reluctant even to give us information which would have been the simplest way of answering the charge made against him and in view of the identity of Venkatachalam at S. No. 739 in the electoral roll being different from that of the first respondent, we were prima facie satisfied that the name of Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 14 the first respondent was not to be found in the electoral roll for the Lalgudi Assembly Constituency and we admitted the appeal While admitting the appeal, we made it clear that 'if the first respondent so chooses he is at liberty to file an affidavit controvert the allegations made by the appellant. We also made it clear that though an objection on the non- maintainability of the writ petition in view of the provisions of Art. 329(b) of the Constitution was raised we considered that since the question raised was a matter of public importance and related to the purity of public life, the question of jurisdiction could be argued at the time of hearing of the appeal. We also made it clear that we are not inclined to hear the appeal piecemeal therefore if the first respondent desired to file an affidavit it may be done within three weeks.
9. The first respondent however chose not to file any affidavit at all. All that was necessary for him was to make a simple statement telling us at what serial number in the electoral roll for the Lalgudi Assembly Constituency his name was to be found. Even this he has declined to do."
15. Thus, from reading of the facts of the case of K. Venketchalam (supra), it would be clear that the returned candidate, namely, K. Venketchalam did not dispute before the High Court as with regard to his being elector in any assembly constituency in the State of Tamilnadu. It was in this background that the following findings were recorded by the Apex Court in the paragraph no.25 in the case of K. Venketchalam (supra).
"25. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector from Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 15 that constituency could represent the constituency? He lacked the basic qualification under clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislative Assembly of Tamil Nadu. His election however, was not challenged by filing an election petition under Section 81 of the Act. Appellant knows he is disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law."
16. Thus there would be no difficulty in distinguishing the judgment of the Apex Court in the case of K. Venketchalam (supra), inasmuch as, there the returned candidate was not at all an elector in any assembly constituency of the State of Tamilnadu and that is how the Apex Court had upheld the judgment of the Madras High Court holding him to be disqualified in terms of Article 173 read with Section 5(d) of the 1951 Act. Here however the case is absolutely different, inasmuch as, the petitioner himself has admitted that the respondent nos. 6, 7, 8 & 9 were recorded as elector in a different parliamentary/assembly constituency other Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 16 than in which they had contested the elected and were declared as returned candidates. Thus, in their case, the disqualification as projected by the learned counsel for the petitioner only on the ground of their being not the electors of the particular constituency from which they were declared as returned candidates cannot be made applicable in view of a very clear provision of law under Section 4(a) and (d) as also Section 5(c) of the 1951 Act. In fact, this aspect of the matter has been directly answered by the Apex Curt in the case of B. D. Jatti (supra) wherein a similar attack of Mr. Jatti, the returned candidate of being not an elector from Jamkhandi constituency and thus ineligible for contesting the aforementioned assembly constituency had been negatived by the Apex Court in the following words:-
"6. ------ The word "elector" is defined by Section 2(1)(c) to mean in relation to a constituency a person whose name is entered in the Electoral Roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Act of 1950. Chapter III of the Act contains disqualifications for Membership of Parliament and State Legislatures. According to Section 7(b) "disqualified" means disqualified for being chosen as and for being a Member of either House of Parliament or of the Legislative Assembly, etc. Sections 8 to 11 give the disqualifications on conviction for certain offences for commission of corrupt practices and other matters which need not be noticed. The position under the Act, therefore, is that in order to stand for election to a Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 17 legislative assembly of a State a person must be an elector for any assembly constituency in that State and he must not be subject to any of the disqualifications mentioned in Section 16 of the Act of 1950 or the disqualifications given in Chapter III of the Act.-------"
(underlining for emphasis)
17. In the light of the above, the judgment of the Apex Court in the case of B. D. Jatti (supra), the judgment of the Apex Court in the case of K. Venketchalam (supra) of a two Judges bench which had not even noticed much less considered the earlier view in the case of B.D. Jatti (supra) has to be kept confined to the special facts of that case as discussed above.
18. To that extent, the reliance placed on the following passages by the learned AAG on the judgment of the Apex Court in the case of State of U.P. and Anr. Vs. Synthetics and Chemicals Ltd. And Anr. reported in 1991(4)SCC 139 is also apt and appropriate wherein the settled principle of precedents and the concept of sub-silentio has been explained in the following terms:-
"41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 18 court or present to its mind." (Salmond on Jurisprudence 12th Edn., p.153). In Lancaster Motor Company (London) Ltd. V. Bremith Ltd. The Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. The bench held that, 'precedents sub-silentio and without argument are of no moment'. The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union Territory of Pondicherry it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."
19. As a matter of fact the view taken by the Apex Court in the case of B.D. Jatti (supra) was also relied and approved in the case of V.B. Raju (supra) wherein it was held as follows:-
"20. In P.R. Belagali v. B.D. Jatti, the question was about the validity of the election of B.D. Jatti to the legislature of the State in question from Jamkhandi constituency and one of the contentions was that as he was not an ordinary resident Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 19 in Jamkhandi constituency, he was not an elector in that constituency and, therefore, the election was void. Grover, J., delivering the judgment of this Court observed that in order to stand for election to the legislative assembly of a State, a person must be an elector in any assembly constituency in that State, and he must not be subject to any of the disqualifications mentioned in Section 16 of the 1950 Act or the disqualifications given in Chapter III of the Act. He also observed that the condition of being ordinarily resident in a constituency for the purpose of registration has nothing to do with the disqualification for registration which are prescribed by Section 16 of the 1950 Act and which alone are relevant to the definition of the word 'elector' occurring in Section 2(1)(e) of the Act.------"
(underlining for emphasis)
20. In the light of the aforementioned discussions, this Court is not required to examine the other judgments cited by the learned counsel for the petitioner, inasmuch as, in none of them, the question as canvassed by him have been directly or indirectly answered. In fact, in the case of V.V.Giri (supra), the Apex Court was considering the effect of Section 33(2) of the 1951 Act and had held that unless a member of scheduled tribe makes the required declaration, he will not be entitled to claim election to the reserved seat but it does not follow that if a schedule tribe candidate makes the said declaration, he forfeits his right to contest for the general seat.
21. Yet again, in the case of G. Narayanaswami Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 20 (supra), whatever was observed was as with regard to the qualification of a member of legislative council of a State who is not required to be a member or the electorate. The concept of 'elector' however, cannot be mingled with the electorate, inasmuch as, under Article 171 of the Constitution, it is the zone of electorate which has to be represented in the Legislative Council of a State whereas the elector of the State in terms of Section 5 is the qualifying factor from being becoming the member of the Legislative Assembly.In that view of the matter, the meaning of the word 'electorate' explained in the case of G. Narayanaswami (supra) by the Apex Court will have no bearing on the issue of validity of election of the respondent nos. 6, 7, 8 & 9 who were elected as members of Loksabha (House of Parliament) or Vidhan Sabha (Assembly).
22. Since this Court has decided the issue on merit, it is not necessary to into the question of maintainability of the writ application on the ground of alternative remedy of assailing such election only by filing election petition in terms of Section 80 of the 1951 Act. This much however has to be observed that after the respondent nos. 6 & 7 having been elected as Member of Parliament in 2004 had virtually completed their five years tenure of M.P., this writ application came to be filed in 2009 questioning their election held way back in the year 2004. Even in the case of respondent nos.
Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 21 8 & 9 their assembly election were held in the year 2005 and it was virtually at the end of their five years tenure as M.L.A. that the petitioner, an advocate of this Court, had become wiser to raise the question of their being ineligible to contest the election on account of their being not elector of their respective constituency. It thus becomes clear it was infact an attempt incognito to dissuade them from contesting the next election which was due in the case of Parliament in the year 2009 and in the case of Bihar Assembly in the year 2010.
23. Having regard to the aforesaid scenario, this writ application in fact right from inception was not only infructuous but also thoroughly misconceived but in view of the far-reaching effect that such issues raised herein may have, this Court has chosen to answer all the submissions of the learned counsel for the petitioner.
24. Having thus dealt with the main line of the attack of the petitioner based only on the stray observations of the Apex Court in the case of K. Venketchalam (supra), this Court before parting with must observe that when the petitioner himself claims to be a practicing advocate in this Court, he had to file this writ application with utmost caution and after making due research as was held by the Apex Court in the case of S. P. Anand, Indore Vs. H.D. Deve Gowda & Ors. reported in 1996(6)SCC 734.
Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 22 "18. Before we part, we cannot help mentioning that on issues of constitutional law, litigants who can lay no claim to have expert knowledge in that field should refrain from filing petitions, which if we may say so, are often drafted in a casual and cavalier fashion giving an extempore appearance not having had even a second look. This is the impression that one gets on reading the present petition. It is of utmost importance that those who invoke this Court's jurisdiction seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed. Such a litigant must not succumb to spasmodic sentiments and behave like a knight- errant roaming at will in pursuit of issues providing publicity. He must remember that as a person seeking to espouse a public cause, he owes it to the public as well as to the court that he does not rush to court without undertaking a research, even if he is qualified or competent to raise the issue. Besides, it must be remembered that a good cause can be lost if petitions are filed on half-baked information without proper research or by persons who are not qualified and competent to raise such issues as the rejection of such a petition may affect third party rights. Lastly, it must also be borne in mind that no one has a right to the waiver of the locus standi rule and the court should permit it only when it is satisfied that the carriage of proceedings is in the competent hands of a person who is genuinely concerned in public interest and is not moved by other extraneous considerations. So also the court must be careful to ensure that the process of the court is not sought to be abused by a person who desires to persist with his point of view, almost carrying it to the point of obstinacy, by filing a series of petitions refusing to accept the Court's earlier decisions as concluding the point. We say this because when we drew the attention of the petitioner to earlier decisions of this Court, Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 23 he brushed them aside, without so much as showing willingness to deal with them and without giving them a second look, as having become stale and irrelevant by passage of time and challenged their correctness on the specious plea that they needed reconsideration. Except for saying that they needed reconsideration he had no answer to the correctness of the decisions. Such a casual approach to considered decisions of this Court even by a person well- versed in law would not be countenanced. Instead, as pointed out earlier, he referred to decisions having no bearing on the question, like the decisions on cow slaughter cases, freedom of speech and expression, uniform civil code, etc.; we need say no more except to point out that indiscriminate use of this important lever of public interest litigation would blunt the lever itself."
25. This Court does not need to remind the petitioner, an advocate, of the noble profession to which he belongs. The counsel is endowed with noble duties. He has not only duly towards his client but also to his colleague. He also owes duty to not only the court but also towards society. The Apex Court in the case of Hari Shankar Rastogi Vs. Giridhari Sharma reported in AIR 1978 SC 1019 had held that the BAR is an extension of system of Justice and lawyer is an officer of the court. He is master of an expertise but more than that kindful to the court and governed by high ethics. The success of judicial system often depends on the services of the legal profession. This Court therefore would not like to say anthing more but would only remind the petitioner, himself a Lawyer and Patna High Court CWJC No.3468 of 2009 dt.25-06-2012 24 his counsel what was said by Hon'ble Justice KrishnaIyer (as his Lordship then was) in the case of BAR Council Vs. M.V. Dabholkar reported in AIR 1975 SC 2092 by way of a word of caution for the legal Profession:-
"....... The Bar is not a private guild, like that of 'barbers, butchers and candlestick-makers' but, by bold contrast, a public institution committed to public justice and pro bono public service. The grant of a monopoly licence to practice law is based on three assumptions:(1) There is a socially useful function for the lawyer to perform.(2) The lawyer is a professional person who will perform that function, and (3) His performance as a professional person is regulated by himself and more formally, by the profession as a whole."
26. In the light of the aforesaid discussions, this Court must hold that the petitioner, an advocate of this Court, has filed a wholly frivolous and misconceived writ petition only for seeking a cheap popularity with a oblique and questionable motive.
27. In the result, this writ application must fail and is, accordingly, dismissed. There would be, however, no order as to costs.
(Mihir Kumar Jha, J) Patna High Court, Dated the 25th of June, 2012 A.F.R./Rishi