Madras High Court
A. Swamickan vs K. Venkatachalam And Anr. on 23 April, 1986
Equivalent citations: AIR1987MAD60, AIR 1987 MADRAS 60
JUDGMENT M.N. Chandurkar, C.J.
1. The question raised in this appeal though rather unusual is a very substantial one and -the question is whether even when the High Court is satisfied that a pers6n who does not possess the basic constitutional and statutory qualification for being elected as a member of the Legislative Assembly, the High Court is powerless to prevent him from performing his functions as a member of the Legislative Assembly only on the ground that no one has chosen to challenge his election to the Legislative assembly by filing an election petition under S. 80 of the Representation of the People Act, 1951 (hereinafter referred to as the Act).
2. General elections to the Legislative Assembly in Tamil Nadu took place in December, 1984. The respondent I filed his nomination paper for election as a Member of the Legislative Assembly from 159 Lalgudi Assembly Constituency. On 27-11-1984, the proposer has stated in the nomination paper that the first respondent's name has been entered at S. No. 120 in part 9 of the electoral roll for the Lalgudi Assembly Constituency. In all, there are four nomination papers filed and in all these papers while setting out the particulars of the first respondent as given in the electoral roll for the Lalgudi Assembly Constituency his serial number in the roll is given as 120. The first respondent has assented to all these nominations. These nomination forms are in form 2B under R. 4 of the Conduct of Elections Rules, 1961 (hereinafter referred to as the Rules). The first respondent has made a solemn declaration assenting to-, his nomination as an elector. Thus, the first respondent by assenting to his nomination as 'the above mentioned candidate' proceeded to stand for the election as an elector whose name is at serial number 120 in the electoral roll for the Lalgudi Assembly Constituency.
3. In the 1984 electoral roll for 159 Lalgudi Assembly Constituency, which is the relevant electoral roll serial numbers 118, 119 and 120 show the following names at door No. 38 in M. Kannanur village:
S1. No. 118 - Pethu S1. No. 119 - Sellammal (wife of pethu) SI. No. 120 - Venkatachalam (son of Pethu)
In the nomination paper the name of the respondent 1, was stated as,' Venkatachalam'. His father's name was stated as ' Pethu alias Krishnaswami'. The postal address was given as 'M.Kannanur, La1gudi taluk, Tiruchi dist.' His nomination paper was accepted. The original fife of the nomination paper shows that the respondent I was sponsored by the All India Congress Committee and the official symbol of 'hand' of the said party was allotted to him. At the election held, respondent I was elected as a member of the Legislative Assembly. The election of respondent I was not challenged by any voter or candidate by an election petition
4. On 22-11-1985 the petitioner, who was a candidate for the election but was defeated, however filed a petition under Art. 226 of the Constitution alleging that the name of the respondent I is not to be found as a voter in the electoral roll for the general elections for any Assembly constituency. This according to the petitioner, was apparently for the reason that he had left his native place Kannanur long back along with his wife after taking a job in Cholan Transport. Corporation at Tiruchi and was residing permanently at No. 5/D Mohana Vilas, Mambazha Salai, Srirangam, Trichi. Getting suspicious as to how the respondent I stood for the election without his name being included in any assembly constituency, the petitioner came to Court initially alleging that there was one person Venkatachalam by name, whose name in the electoral roll was at serial number 739 and who lived in 61-B, South Street, Malvoy village with his mother Meenakshi, who was the wife of Krishnaswami who is no more.The name of the said Venkatachalam's wife was said to be Vijaya whose name was at set number 740. The petitioner became doubt I because the name of the first respondent's wife was Jayanthi. The person by name Venkatachalam was an agriculturist who had .studied only up to III Standard, whereas the respondent I was a graduate. The name of the grandfather of Venkatachalam at serial number 739 was said to be Sepperumal Udayar, whereas the first respondent's. grandfather's name was Venkatachalam Nainar. Thus, alleging that the respondent No. I had misrepresented himself deliberately as Venkatachalam, son of Krishnaswami and electoral roll number 739, the petitioner came to this Court alleging that the first respondent had wilfully and fraudulently made a misrepresentation both in the nomination paper and during the scrutiny. The petitioner sought to buttress his case, firstly by filing an affidavit of Venkatachalam son of Krishnaswami Udayar residing at door No. 61-B South Street, Malvoy Village, whose electoral roll number was, 739 in Lalgudi Assembly constituency; secondly he produced the electoral list prepared for the panchayat elections wherein the names of the first respondent and his wife Jayanthi are shown at serial numbers 311 and 312, and the address. is shown as door No. 105-A in ward No. 1 of M. Kannanur. He also referred that the first respondent having shifted to Srirangam his name was found in the municipal electoral list in ward No. 28 at door No. 5/D, Mohana Vilas, Mambazha Salai, Srirangam, Tiruchi, at serial number 1494 in the municipal electoral list for Srirangam Municipality. He also referred to the electoral list for the panchayat elections to Malvoi village for 1978 in which at serial numbers 191, 192 and 193 the names of Krishnaswami son of Sepperumal, Meenakshi and Venkatachalam respectively are found and they are all shown as residing at door No. 61-B, South Street in Malvoi village.
5. According to the petitioner, the first respondent was thus not qualified to be a member of the Tamil Nadu Legislative Assembly as he was not an elector in the electoral list for LaIgudi Legislative Assembly Constituency. He therefore prays a writ of declaration declaring that the first respondent is not qualified to be a member of The Tamil Nadu Legislative Assembly Constituency or in the alternative a writ of quo-warranto or any other writ appropriate direction in the nature of a writ directing the first respondent to show under what authority he is occupying the seat in the Tamil. Nadu Legislative Assembly as a member representing the 159 LaIgudi Assembly Constituency.
6. When the petition was taken up by the learned single Judge, he dismissed it on the ground that the petition was barred by Art.329(b) of the Constitution and if the petitioner's contention that the first respondent had committed fraud was wellfounded nothing prevented him from seeking the remedy under Cl. (d) of S. 100 of the Representation of the People Act, 195 1. The learned Judge took the view that mere allegation that the first respondent had committed fraud did not relieve the petitioner from the responsibility of moving under S. 100 of the Representation of the People Act, 1951.
7. The petitioner's petition having been dismissed, he has filed this appeal.
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 number 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 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 controverting the allegations made by the appellant. We also made it clear that though an objection on the nonmaintainability 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.
9A. We have sent for the original nomination papers. The nomination papers show that identity of the first respondent was given as a voter at serial number 120 and he was described as'Venkatachalam son of Pethu alias Krishnaswami. The petitioner then filed further affidavit to say the first respondent is not the person whose name is shown at serial 120 in the electoral roll for the Lalgudi Assembly Constituency. He states that he has gone through the entire electoral list of 159 Lalgudi Assembly Constituency pertaining to M. Kannanur and found that there was no other name as 'Venkatachalam son of Krishnaswami' excepting the one at door No. 61-B Malvoy village bearing electoral roll No. 739. He also states that he did not find any person in the voters list pertaining to M. Kannanur described as'Venkatachalam, son of Krishnaswami' in the said list, nor did he find any person described at'Venkatachalam son of Pethu alias Krishnaswami'. He also found that there was no person 'Pethu alias Krishnaswami' in the electoral list pertaining to M. Kannanur. He however found that one 'Venkatachalam, son of Pethu'living with his mother Sellammal and father Pethu at door No. 38, in M. Kannanur who belonged to Reddiar community was shown as a voter in the electoral roll for 159 Lalgudi Assembly Constituency.
9B. What therefore now transpires is that at serial No. 118 in the electoral roll for the Lalgudi Constituency the name shown is Pethu and not Pethu, alias Krishnaswami; at serial number 119 the name shown is Sellammal who is the wife of Pethu and the name shown at serial number 120 is Venkatachalam son of Pethu and not Pethu alias Krishnaswami. the address of these persons is at door No. 38 in ward No. 1. Similarly at door No. 38 ward No. I in the list of voters for the 1978 panchayat elections Pethu Reddiar, Sellammal - his wife, Venkatachalam - his son and Malarkodi - wife of Venkatachalam, are shown as serial numbers 104, 105, 106 and 107 respectively. The first three persons are again shown at door No. 38 of ward No. I M. Kannanur village in the 1984 panchayat electoral list. Malarkodi's name is not found because she had died earlier.
9C. The indisputable facts as they now appear today from the* electoral rolls are as follows :
(i) The first respondent Venkatachalam is the son of Krishnaswami and not the son Of Pethu.
(ii) The father and mother of Venkatachalam son of Pethu are alive and Malarkodi wife of Venkatachalam son of Pethu is dead.
(iii) They are all residents of door No. 38, West Street. Ward No. I in M. Kannanur village.
(iv) According to the entries in the Panchayat Electoral Roll of 1984, the first respondent and his wife Jayanthi are shown as residing at door No. 105. in Ward No. 1 at M. Kannanur.
(v) Both the parents of Venkatachalam, the first respondent. are dead.
(vi) His wife's name is Jayanthi and not Malarkodi and Jayanthi is Ave.
(vii) Venkatachalam (R-1) and his wife Jayanthi were at the time of the General Election residing at Srirangam.
(viii) Venkatachalam son of Pethu is a person different from-Venkatachalarn son (4 Krishnaswamy (First Respondent).
(ix) There is no voter in the Electoral Roll for 159 Lalgudi Assembly Constituency, Of the name Venkatachalam son of Krishnaswamy.
9D. These facts make it abundant1v clear that when in the nomination paper t6e first respondent described himself as 'Venkatachalam son of Pethu alias Krishnaswamy' whose serial number in the electoral roll was 120, the first respondent was not that person at all. The proposers in the nomination as well as the first respondent knew full well that the first respondent was not'Venkatachalam son of Pethu'whose name was -it serial number 120. Thus, the first respondent contested the election as a person whose name was shown at serial number 120. Knowing full well that he is not that person, the first respondent and his proposers have therefore taken advantage of the fact that in the electoral roll there was an entry in respect of a person whose first name happened to be the same as that of the first respondent. Not only this. with a view to show that the first respondent was the Venkatachalam who was shown at serial number 120, the first respondent and his proposers adopted the dubious device of giving falsely an alias name to Pethur by mentioning the name Pethu as 'Pethur alias Krishnaswami'. There is therefore no manner of doubt that it is now establihsed as a fact that the first respondent was not at all enrolled as a voter in the electoral roll for the Lalgudi Legislative Assembly Constituency. Such a finding is inevitable more so when the first respondent has deliberately chosen to be silent and refuses to show us that he was registered as a voter in any other constituency. Indeed, it is impossible for him to show this because he is now bound by what he has disclosed in the nomination paper. We must therefore proceed in this appeal on the footing that the first respondent has deliberately and to his knowledge falsely. represented himself to be a voter enrolled in the electoral roll for the Lalgudi Assembly constituency when in fact he was not so. In view of these established facts, it was contended by Mr. Raghavan that properly construed, Art. 329 does not prevent the High Court from exercising its jurisdiction and declaring that the first respondent had got himself fraudulently elected when he did not possess the basic qualifications contemplated by Art. 173(c) read with S. 5 of the Act. This is a case, according to Mr. Raghavan. Of want of basic qualifications and therefore notwithstanding the fact that an election petition has not been filed. this Court should not find itself helpless and permit a person who has stood for election fraudulently to continue to hold an important public office of a Member of the Legislative Assembly.
10. Mr. V. P. Raman, appearing on behalf of the first respondent has, however.vehemently contended that he was proceeding to argue the matter without admitting or denying the facts and according to him ex en assuming that the facts as stated b~ the petitioner were correct, the petitioner had not made out a case as to warrant interference. According to the learned counsel the first respondent had been declared duly elected; there was no evidence to show that any particular voter has been misled and there is also no evidence to show that a voter would not have voted for the first respondent. if he had known that the first respondent is not qualified to stand for the election. The learned counsel contended that the petitioner was a. candidate himself and it is argued that he was' present at the time of scrutiny. In any case, according to the learned counsel the petitioner should have filed-an election petition. No such election petition having been filed, this Court cannot now interfere in view of the provisions of Art. 329(b) of the Constitution. Alternatively, it is argued that the first respondent is duly qualified under Art. 173. According to the learned counsel it is not the case of the petitioner that the first respondent does not satisfy the requirements of Cls. (a) and (b) of Art. 173 i.e., it is not the petitioner's case that the first respondent is not a citizen of India or that he is less than 25 years of age. The learned counsel therefore contended that the first respondent was qualified to be registered as a voter, and if he was qualified to be registered as a voter, then his nomination paper could not have been rejected. Finally, it is argued that since he has been declared elected and he has an authority evidencing his election, a writ of quo-warranto cannot be issued.
11. Before we go to the provisions of Art. 329(b) of the Constitution, it is necessary for us to refer to the 'relevant provisions of the Constitution and the Act. Art. 173 prescribes qualification for membership of the State Legislature. This Article 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 an oath or affirmation according to the form set put 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 case of a seat in the Legislative 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."
The effect of Art. 173 therefore is that it prescribes qualifications for a person to be chosen to fill a seat in the legislature of a State. Clauses (a) and (b) thus prescribe two qualifications. The first is that the person who wants to be chosen to 'fill a seat in the Legislature of a State must be a citizen of India and he must make and subscribe before some person authorised in that behalf by the Election Commission, an oath or affirmation, according to the form set out for that purpose in the Third Schedule. The relevant form of oath or affirmation to be made by a candidate to a Legislature of a State is Form VII-A in the Third Schedule. The oath or affirmation is that the candidate will bear true faith and allegiance to the Constitution of India as by law established and that he will uphold the sovereignty and integrity of India. The second qualification is with regard to the age. In the case of the legislative Assembly a candidate should not be less than 25 years of age and in the case of a seat in the Legislative Council, he should not be less than thirty years of age. Clause (c) of Art. 173 speaks of 'such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.' Clause (c) of the Art. 173 therefore requires that other qualifications that may be prescribed by the Parliament should also be possessed by a person who wants to stand for an election for a seat in the Legislature of a State. This qualification is to be found in S. 5 of the Act. The relevant part of S. 5 in so far as we are concerned reads as follows :
"5. Qualifications for membership of aows :
"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) and (b) ...........................................
(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. 371A, 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."
We are not concerned with the proviso in Cl. (c). But the main part of Cl. (c) of S. 5 read with Art. 173(C) clearly provided that one of the qualifications for standing f1r an election for a seat in the Legislative Assembly is that the said person must be an elector for any assembly constituency in that State. The word 'elector' has been defined in S. 2(e) of the Act as follows :
"elector" in relation to a constituency means 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 S. 16 of the Representation of the People Act, 1950."
Reading the definition of 'elector' in S. 2(e) of the Act with the provisions of S. 5(c) of the Act along with the provisions of Art. 173(C) of the Constitution, it is clear that unless a person is an elector for any Assembly Constituency, that is to say, unless in relation to a constituency his name, is entered in the electoral roll of that constituency for the time being in force and he is not subject to any disqualification mentioned in S. 16 of the Representation of the People Act, 1950, a person cannot stand for an election to fill a seat in the Legislative Assembly of a State. The qualifications prescribed in S. 5 of the Act have to be read in Cl. (c) of Art. 173 and a person who does not possess the qualifications prescribed in S. 5 is debarred from standing at an election to fill a seat in the Legislative Assembly of a State. It is therefore no answer to say that as there was nothing to show that the first respondent was not entitled to be registered as an elector, he cannot be said to be disqualified. The qualification prescribed by S. 5 of the Act must be read into Art. 173(C) and must therefore be considered as a qualification contemplated by the Constitution itself. It is also necessary at this stage to refer to the provisions of Art. 193 of the Constitution. This Article reads as follows :
"193. Penalty for sitting and voting before making oath or affirmation under Art. 188 or when not qualified or when disqualified. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Art. 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the ' Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State."
A careful reading of Art. 193 will show that it is undoubtedly a penal provision. The penalty contemplated by Art. 193 is attracted under four circumstances. Firstly, it is attracted where a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Art. 188 which means that before taking a seat he has not made or subscribed an oath or affirmation according to the form set out for the purpose in the Third Schedule before the Governor or some other person appointed in that behalf by him. Secondly, the penalty under Art. 193 is attracted when a person sits or votes as a member of the Legislative Assembly or the Legislative Council of the State when he knows that he is not qualified. Thirdly, similar penalty is attracted when the person sits or votes in the Legislative Assembly or Council of a State when he knows that he is disqualified for a membership thereof. Lastly, such penalty is attracted when the said person is prohibited from sitting or voting as a member of the Legislative Assembly by the provisions of any law made by Parliament or the Legislature of the State. The penalty is five hundred rupees in respect of each day on-which such person sits or votes. This penalty can be recovered as a debt due to the State. Art. 193 therefore clearly contemplates that a person who is not qualified to sit as a member of the legislative Assembly or he is disqualified for membership of the Assembly, sits and votes as a member in such a case the Constitution makes such a person liable to penalty. We shall refer again to this Article when we come to consider the bar under Art. 329(b) of the Constitution.
12. Now. the argument of the learned counsel for the first respondent is that assuming that the facts are correct, has the petitioner made out a case as to warrant an interference ? There can be no doubt that if the case of the first respondent falls within the provision in Art. 193 of the Constitution, then, the first respondent is not entitled to sit or vote as a member of the Legislative Assembly especially when he knows that he knows that he is not qualified for membership of the Legislative Assembly under Art. 173(C) of the Constitution read with S. 5 of the Act. Art. 193 expressly uses the phraseology "if a person sits or votes as a member of the Legislative Assembly when he knows that he is not qualified Obviously, when Art. 193 refers to a person no ' t being qualified, as distinguished from a person being disqualified, for membership, Art. 193 contemplates the possession of the qualifications prescribed under Art. 173(C) of the Constitution. Section 5 of the Act has the marginal heading "Qualifications for membership of Legislative Assembly." Section 6 of the Act refers to qualifications for membership of a Legislative Council. Article 193 therefore clearly contemplates (a) case where a person sits or votes as a member of the Legislative Assembly or the Legislative Council of State, inter alia, even though he is not qualified, or even if he is disqualified for membership thereof. Construed in its proper perspective, Art. 193 is an important provision which takes note of the fact that notwithstanding the election of a person as a Member of the Legislative Assembly or of the Legislative Council of a State, he can be a person who is not qualified or was disqualified for membership of the Legislative Assembly or the Legislative Council of a State. Art. 193 therefore operates notwithstanding the election of a person as a member of the Legislative Assembly or member of the Legislative Council of a State. Art. 193 itself does not refer to any specified authority who is entrusted with the function or power to determine a person sitting or voting as a member of the Legislative Assembly or a member of the Legislative Council of a State, when he knows that he is not qualified or. he is disqualified for a membership thereof. But the fact, however, remains that A person who has no manner of right to sit as a member of the Legislative Assembly because he is either not qualified for membership or is disqualified for membership does so in express breach of the provisions of Art. 173 of the Constitution and in violation of the provisions of Art.193.Though Art. 193 of the Constitution does not expressly make any provision for the person ceasing to sit or vote as a member of the Legislative Assembly or the Legislative Council of the State, it is implicit in the scheme of Art. 193 that if initially the person was not qualified for membership of either the Legislative Assembly or the Legislative .Council of a State, during the continuance of such want of qualification or disqualification he must cease to sit or vote as a member of the Legislative Assembly or the Legislative Council of a State, as the case may be. In a given case it may be possible that whether (sic) a person h i elected sits or votes without complying with the requirements of Art. 188, such person may be absolved from the consequence set out in Art. 193 if he makes and subscribes an oath or affirmation as contemplated by Art. 188.
13. In Election Commission, India v. Saka Venkata Rao, , the Supreme Court was dealing with the question As to whether the disqualifications referred to in Art. 1900) contemplated both pre-existing and supervening disqualifications. Though the Supreme Court took the view that Arts. 190(3) and 192(1) were applicable only to disqualifications to which a member becomes subject after he is elected as such and that neither the Government nor the Commission had jurisdiction to enquire into the elected member's disqualification which arose long before his election, the Supreme Court held that the'scope of Art. 193 was different, as will be clear from the following observations :
"Art. 191, which lays down the same set of disqualifications for election as well as for continuing as member, and Art. 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifications; but it does not necessarily follow that Arts. 190(3) and 1920) must also be taken to cover both." The decision of the Supreme Court in Saka Venkata Rao's case is therefore an authority for the proposition that Art. 193 also deals with want of qualification and disqualification which existed even before the election. We have, therefore, no doubt that the first respondent is disabled from sitting or voting as a member of the legislative assembly since he lacks the basic qualifications prescribed in Art. 173(c) of the Constitution read with S. 5 of the Act. In our view, by representing that he was "son of Pethu @ Krishnaswami" he could well be said to have impersonated the real person who was registered as a voter in the electoral ro.11 for the Lalgudi Assembly Constituency. at serial No. 120. This having come to the notice of this Court, the Court will be failing in its duty if it allows a person who could 6'Qt have been elected to the Legislative Assembly, to function as a member of. the Assembly. To say the least, the first respondent has committed a fraud on the Constitution when, even though he did not fulfil the qualifications as laid down by the Constitution, he posed to be person who so satisfied the qualifications laid down by the Constitution read with S. 5 of the Act. This is, therefore, pre-eminently a case where a declaration must be given that the first respondent was not and is not entitled to perform the functions as a member of the Legislative Assembly and to sit and vote in the Legislative Assembly as a member thereof. The fact that the first respondent has been elected by a large number of votes or that no voter has come forward to say that he has been misled, does not vest the first respondent with the basic qualifications when (which ?) he lacks.
14. The learned counsel appearing on behalf of the first respondent has however vehemently argued that having regard to the provisions of Art. 329(b) of the Constitution the only remedy for the petitioner, to have the first respondent unseated was by way of an election petition, and that since no election, petition had been filed, the petitioner was not entitled to any relief. He has mainly relied on three decisions of the Supreme Court, viz., N. P. Ponnuswami v. Returning Officer, Namakkal, ; Mohinder Singh Gill v. Chief Election Commr., and Krishna Ballabh Prasad Singh v. SubDivisional Officer, Hilsa, . Mr. Raghavan also relied on the decisions of Ponnuswami's case and Mohinder Singh's case and according to him the bar created by Art. 329(b) was a limited bar which operated only till results of the election are declared. The learned counsel argued that though it is true that an election petition could have been filed challenging the election of the first respondent, it having now been established that the first respondent did not possess the basic qualifications as contemplated by Art. 173(c) read with S. 5 of the Act, this Court, in exercise of its jurisdiction under Art. 226 of the Constitution, is not prevented from setting aside the election of the first respondent.
15. As is well-known, is Ponnuswami's case , what was challenged was an order of the Returning Officer rejecting a nomination paper. The High Court had dismissed the writ petition under Art. 226 of the Constitution on the ground that-it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Art. 329(b) of the Constitution. The argument before the Supreme Court was that the jurisdiction of the High Court under Art. 226 was not affected by Art. 329(b). Mr. Raghavan placed reliance on the observations made by the Supreme Court in paragraphs 12 and 13 of the judgment. In para 12, the Supreme Court observed that -
"..........It will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being byan election petition to be presented after the election is over and THERE IS NO REMEDY PROVIDED AT ANY INTERMEDIATE STAGE".
(Emphasis ours).
In para 13, the Supreme Court dealt with the argument that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Art. 226 of the Constitution. Observing that this argument was completely shut out by reading the Act along with Art. 329(b) and referring to the opening words of Art. 329(b) "notwithstanding anything in this Constitution", Fazl Ali, J. observed -
"I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress".
Mr. Raghavan, therefore, contended that the ratio of the decision in Ponnuswami's case was that while the election is in progress the High Court cannot interfere under Art. 226 of the Constitution having regard to the provisions of Art. 329(b) of the Constitution. The Supreme Court summed up the conclusions in Ponnuswami's case as follows in para 16 :-
"(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time-schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no signification should be attached to anything which does not affect the "Election" and if any irregularities are committed while it is in progress and they belong to the category or class, which under the law by which elections are governed, would have the effect of vitiating the "Election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any Court while the election is in progress."
The language in which these conclusions are stated seems to emphasise the fact that if any irregularities are committed while the election is In progress and these irregularities have the effect of vitiating the election and enable the person affected to call the election in question, they should be brought up before a special tribunal and not be made the subject of a dispute before any Court while the election is in progress. However, in para 19 the Supreme Court seems to have left the question with regard to the powers of the High Court under Arts. 226 and 227 of the Constitution, open. It was observed as follows :
"It should be mentioned here that the question as to what the powers of the High Court under Arts. 226 and 227 and of this Court under Art. 136 of the Constitution may be, is one that will have to be decided on a proper occasion."
Ponnuswami's case , therefore, did not deal with the question as to whether if any election petition is not filed, then can the right of the elected person be in any way affected because of non-compliance with the basic provisions relating to qualification, by an order under Art. 226 of the Constitution.
16. In Durga Shankar Mehta v. Raghuraj Singh, , the main question was. whether appeal by special leave under Art. 136 of the Constitution would lie to the Supreme Court against an order of the Election Tribunal in an election petition filed under S. 80 of the Act. The argument in that case was that in view of the provisions of Art. 329(b) of the Constitution, since no election could be called in question except by an election petition presented in accordance with the provisions of Part XV of the Constitution which dealt with'Elections' and since under S. 105 of the Act every order of the Tribunal made under the Act was final and conclusive, the order of the Election Tribunal could not be challenged even under Art. 136 of the Constitution. While rejecting this contention and holding that there was no prohibition of the exercise of its powers by the Supreme Court in proper cases under Art. 136 of the Constitution against the decision or determination of an Election Tribunal, which Re all other judicial tribunals came within the purview of Art. 136, the Supreme Court observed as follows :
"The 'non-obstante' clause with which Art. 329 of the Constitution begins and upon which the respondent's counsel lays so much stress debars us, as it debars any other Court in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the election Tribunal alone that can decide such disputes, and the proceeding has to be initiated by.4n election petition and in such manner as ma~ be provided by a Statute. But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised."There is no doubt that these observations indicate that a dispute with regard to election can be decided only by the Election Tribunal - Now an election petition lies to the High Court - and that no Court can entertain a suit or proceeding calling in question an election to the Parliament or the State Legislature.
17. The scope of Art. 329(b) of the Constitution was once again considered by the'Supreme Court in Mohinder Singh Gill v. Chief Election Commr., . What was challenged in that case was a notification issued by the Election Commission of India cancelling the poll already taken in a constituency since the poll taken had been vitiated as a result of violent disturbance, destruction of certain ballot papers of some of the Assembly segments of the Parliamentary Constituency in the course of violence with the result that it was not possible to complete the counting of the votes in the constituency and a declaration of the result could not be made with any degree of uncertainity (certainty). The Appellant who was a candidate. challenged the notification made by the Election Commission in the exercise of its powers under Art. 324 of the Constitution, S. 153 of the Representation of the People Act, 1951 and "all other powers enabling it so to do" cancelling the poll. This notification was challenged under Art. 226 of the Constitution of India. The High Court held that it had no jurisdiction to entertain the writ petition but never-the-less proceeded to decide the merits of the issues raised exercising the jurisdiction which exclusively belonged to the Election Commission. Reference was made in Paragraph 25 to the judgment in Ponnuswami's case and then it was observed as follows :
"There is non obstante clause in Art. 329 and, therefore, Art. 226 stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed at but left unexplored in Ponnuswami, ."
In para 26, the conclusions summarised by the Supreme Court in Ponnuswami's case have been reproduced and in the second conclusion which we have also earlier reproduced, the observation made by the Supreme Court that the irregularities committed while an election is in progress "should be brought up before a special tribunal by means of an election petition and not made the subject of a dispute before any Court while the election is in progress" was also quoted with special emphasis. on the words "while the election is in progress " Reiterating the earlier decision in Ponnuswami's case, , it was observed in para 26-
"The reason for postponement of election Constitution." litigation to the post-election stage is that elections shall not unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the course of judgment".
Then, in para 27, the following observations were made : -
"Thus far everything is clear. No litigative enterprise in the High Court or other Court should be allowed to hold up the on-going electoral process because the parliamentary representative for the constituency should be chosen promptly. Article 329 therefore covers "electoral matters. " "
The Supreme Court, then, referred to two types of challenges viz., one which relates to proceedings which interfere with the progress of the election, and the second which accelerates the completion of the election and acts in furtherance of an election. The question which the Supreme Court posed in Mohinder Singh*s case AIR 1978 SC 85 i was, in the light of the decision in Ponnuswami's case whether the order for re-poll of the Chief Election Commissioner was "any thing done towards the completion of the election proceedings before the High Court facilitated the election process or halted its progress. This, according to the Supreme Court, gave rise to the further question as to whether the relief sought in the writ petition amounted to'calling in question the election', which, in turn, revolved round the point as to whether the cancellation of the poll and the re-ordering of fresh poll was "part of election" and challenging it, was "calling it in question." The Supreme Court set out two principles on which the plenary bar of Art. 329(b) rested. These principles were :-
"(1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion.
(2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Dealing with the case before it, the Supreme Court took the view that the High Court under Art. 226 could not consider the correctness, legality or otherwise of the direction for cancellation integrated with repoll, because the prima facie purpose of such re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a re-poll and that whether, in fact or law, the order was validly made within the powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. The Supreme Court held that the writ petition challenging the cancellation coupled with repoll amounted to 'calling in question' a step in election and was therefore barred by Art. 329(b). It was also pointed out in para 34 that "knowing the supreme significance of speedy elections in our system the framers of the Constitution have, by- implication, postponed all election disputes to election petitions and tribunals". In para 91 of the judgment, the Supreme Court set out the propositions as follows : -
"1(a) Art. 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result."
(b) Election, in this context, has a very wide connotation commencing from the presidential notification calling upon the electorate to elect and culminating in the final declaration of the returned candidate.
2(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts. administrative or other depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of. such provision's but where such law is silent Art. 324 is a reservoir of power to act for the avowed purpose of, not divorced from. pushing forward a free and fair election with expedition. Secondly. the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair-play-in-action in a most important area of the constitutional order, viz., elections. Fairness does import an obligation to see that no wrong-doer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but inflexible practicability. Whether it has been complied with is left open for the Tribunal's adjudication.
3. The conspectus of provisions bearing on the subject of elections clearly express the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post-election stage and procedure as predicated in Art. 329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commissioner or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law."
After having laid down these propositions, the Supreme Court stated that the bar of Art. 329(b) is as wide as the door of S. 100 read with S. 98 and that (sic) the writ petition could be given in an election petition. The propositions laid down by the Supreme Court undoubtedly show that all disputes with regard to election at the pre-election stage have to be postponed for consideration to the postelection stage and that the Election Tribunal under the Act had enough powers to give relief to an injured candidate if he made out a case. It may be pointed out that Ponnuswami's case and Mohinder Singh's case were all cases which were concerned with a challenge made under Art. 226 of the Constitution of India to an action, in one case by the Returning Officer and in the other case, by the Election Commissioner, before the process of election was completed. There is no direct authority for the proposition that remedy under Art. 226 of the Constitution of India will be barred in each case. The indication is however to the contrary. A certain area is left open for exercising powers under Art. 226 in Ponnuswami's case . Without delineating that area, the fact that such an area does exist and in special situations, invoking Art. 226 cannot be ruled out, is reiterated in Mohinder Singh's case in the observations in para 25 which we have quoted above.
18. It appears to us that at least one such area amenable to the jurisdiction under Art. 226 of the Constitution of India (is) expressly available under Art. 193 of the Constitution of India. It is implicit in Art. 193 that it will be attracted even in a case where a person has been declared elected as a member of the Legislative Assembly or the Legislative Council of a State. It is also implicit in Art. 193 that it can be given effect to without calling in quest-on the election. Indeed, Art. 193 presupposes that a person has been elected to be the member of the Legislative Assembly or the Legislative Council of a State. This is the only assumption on which the provision under Art. 195 can be given effect to when a penalty is provided when a person who, sits or votes as a member of the Legislative Assembly is not qualified. Art. 193 therefore in express terms permits an enquiry to be made with regard-to whether a person who sits or votes as a member of the Legislative Assembly is qualified or not. The provisions of Art. 329(b) and Art. 193 could have -to be harmonized because both these provisions co-exist and relate to validity of an election. When the founding fathers included Art. 193 in the Constitution and also later included Art. 329(b) we must necessarily assume ' that the intention was that notwithstanding the election of a person as a member of a Legislative Assembly and notwithstanding the specific bar under Art. 329(b) preventing the election from being challenged except by an election petition, an enquiry was still permissible in a proceeding -other than an election petition as to whether the elected candidate had the necessary qualifications prescribed by Art. 173(c) of the Constitution because the absence of such qualifications made the elected member liable to penalty. The only way to harmonise both these provisions is to hold that any proceeding taken to give effect to Art. 193 for a declaration that a person is not qualified for membership of the Legislative Assembly did not under the Constitution amount to calling in question an election as contemplated by Art. 329(b) of the Constitution of India. Therefore, the fact that a declaration in Form 21-C of the Rules has been granted cannot be constituted as a bar when a declaration is sought from this Court that the person is not qualified as contemplated by Art. 173 to be elected as a member of a State Legislative Assembly.
19. Undoubtedly, Mr. V. P. Raman has relied on the decision of the Supreme Court in Krishna Ballabh Prasad Singh v, Sub-Divnl. Officer, Hilsa, . That was a case in which though a certificate of election in Form 22 under R. 66 was granted to the petitioner, declaration in Form 21-C was not prepared as required under R. 64. The Returning Officer, however, on discovering that the ballot papers of one booth had not been counted, took those votes into account and issued a notice cancelling the election of the petitioner declaring the 4th respondent to be the successful candidate. A declaration in Form 21-C was then prepared declaring the 4th respondent to be the elected candidate and a fresh certificate in Form 22 was issued. A petition came to be filed by the petitioner under Art. 226 of the Constitution of India challenging the declaration made in favour of the 4th respondent. As a result of a difference between the two Judges of the Division Bench with regard to the maintainability of the writ petition the matter was referred to the third Judge who agreed with the view taken by one of the Judges of the Division Bench that the writ petition must fail because of the bar imposed by Art. 329(b) of the Constitution and that an election petition was the proper remedy. What was contended in appeal before the Supreme Court by the petitioner was that the process of the election was completed as soon as the counting of votes was concluded and a certificate of election in Form 22 was granted to the petitioner certifying that he had been elected and therefore no question arose of the petitioner filing an election petition. Rejecting the arguments the Supreme Court took the view that the declaration envisaged by the law that a candidate has been elected is the declaration in Form 21-C or Form 21D, the former being made in a general election and the latter when the election is held to fill a casual vacancy. Taking the view that there having been no declaration in Form 21-C and that the grant of the certificate of election in Form 22 to the petitioner was meaningless, the Supreme Court observed as follows :-
"We are of opinion that the process of election came to an end only after the declaration in Form 21-C was made and the consequential formalities were completed. The bar of Cl. (b) of Art. 329 of the Constitution came into operation only thereafter and an election petition alone was maintainable. The writ petition cannot be entertained."
Relying on this decision, Mr. V. P. Raman, contended that election petition was the only remedy for the petitioner. As we have already pointed out, the present case is one of the extra-ordinary cases in which having regard to the provisions of Art. 193 the declaration which is sought need not be preceded by. setting aside the election.
20. The contention which is raised by Mr. V. P. Raman, that no voter has come forward to say that he has been misled and that with open eyes voters have voted for him should be enough for the first respondent to say that this petition should be dismissed. His further contention is that it is'nobody's case that the first respondent is not qualified to have his name included in the electoral roll. According to him, if the first respondent was qualified to be registered as a voter and he did not possess any disqualifications his nomination paper could not have been rejected and he must therefore be held to have been rightly elected. The express mandate of the Constitution in Art. 193 cannot he overlooked and notwithstanding the margin of votes by which a person may be elected, if he did not have the qualifications as contemplated by the Constitution, the provisions of Art. 193 must be given effect to. Secondly, as already pointed out, merely being qualified to be registered as a voter is not a qualification as contemplated by Art. 173(c) to enable a person to stand for election as a member of the Legislative Assembly. The contentions which are canvassed before us are therefore without any merit.
21. Arts. 191, 192 and 193 constitute a set of provisions intended to ensure that a person who is either is qualified to be a Member of the Legislative Assembly or the Legislative Council, does not sit as a Member thereof and does not function as a representative of the voters. Both Arts. 192 and 193 do not however provide for any particular mode or manner in which the provisions of these Articles can be invoked. In so far as the initiation of proceedings to give effect to the provisions of Art. 193 is concerned, it seems to stand on the same footing as Art. 192 which also does not make any reference as to who can initiate a proceeding to give effect to the provisions of Art. 192 read with Art. 191, though Art. 192 specifies the Governor as the authority to decide whether a Member of the House of Legislature has become subject to any of the disqualifications referred to in Art. 191(1). The Supreme Court in Brundaban v. Election Commission, has taken the view that any citizen can make a complaint to the Governor alleging that the Member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art. 191(1) and should therefore vacate his seat. Similarly, in our view, any citizen can make a complaint that the Member of the Legislative Assembly does not possess the qualifications contemplated by the Constitution and therefore a declaration to that effect should be given for the purposes of Art. 193 of the Constitution. A Member of the Legislative Assembly is a public functionary and even if a rival candidate who has been defeated at the election brings to the notice of this Court that such a public functionary does not have the basic qualifications which are required under the Constitution to enable him to occupy the office of a public functionary and if on facts found, this grievance is found to be correct, the Court would be failing in its duty in declining to give effect to the provisions of Art. 193 merely on the ground that a person who has failed at the election has brought the material facts to the notice of this Court and that he had not chosen to avail of the statuto6 remedy of challenging the election.
22. After giving the matter our anxious consideration, we are satisfied that this is a case in which this Court must feel obliged to exercise the jurisdiction under Art. 226 of the Constitution and give a declaration that the first respondent is not qualified to sit as a Member of the Legislative Assembly as he does not possess the basic qualification prescribed under Art. 173(c) of the Constitution read with S. 5 of the Act. On the finding recorded by us, it is clear that he has in his nomination form. impersonated the person known as "Venkatachalam son of Pethu" taking advantage of the fact that such, person bears the first name of the first respondent. Accordingly, we allow the petition and grant a declaration that the first respondent is not entitled to sit in the Tamil Nadu Legislative Assembly as he lacks the qualifications prescribed under Art. 173(c) of the Constitution read with S. 5 of the Act. As a necessary consequence, the first respondent is restrained from functioning as a Member of the Tamil Nadu Legislative Assembly. The first respondent shall pay the costs of the petition. Counsel's fee is fixed at Rs. 1,000.
Leave to appeal rejected.
23. Order accordingly.