Kerala High Court
Noble Mathew vs Jose.K.Mani on 12 June, 2018
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE ACTING CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 18TH DAY OF JULY 2018 / 27TH ASHADHA, 1940
WP(C).No. 24041 of 2018
PETITIONER(S):
NOBLE MATHEW,
ADVOCATE, AGED 55, S/O.LATE MATHEW,
MANNAMPLACKAL HOUSE, CHIRAKKADAVU P.O.,
KOTTAYAM DISTRICT, PIN-686 520,
OFFICIAL ADDRESS, H.NO.520, KHCAA CHAMBER COMPLEX,
NEAR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.
BY ADV.SRI.SIVAN MADATHIL
RESPONDENT(S):
1. JOSE.K.MANI,
S/O.K.M.MANI, KARINGOZHACKAL HOUSE,
VELLAPAD P.O., PALA, KOTTAYAM DISTRICT, PIN-686 575,
OFFICIAL ADDRESS C-1, A-BLOCK, M.A.FLATS,
B.K.S.MARG, NEW DELHI-110 001.
2. HON: CHAIRMAN, (RAJYA SABHA),
PARLIAMENT OF INDIA, CHAIRMAN'S OFFICE,
NEW DELHI-110 001
3. ELECTION COMMISSION OF INDIA,
NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110 001.
REP. BY ITS SECRETARY.
4. UNION OF INDIA,
REP. BY ITS SECRETARY, POLITICAL AND PARLIAMENTARY
AFFAIRS, SANSAD BHAVAN, PARLIAMENT HOUSE, NEW DELHI-110 001.
5. CHIEF ELECTORAL OFFICER (KERALA STATE),
KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695 033.
R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA
R BY GOVERNMENT PLEADER SRI. TEK CHAND
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-07-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 24041 of 2018 (S)
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE REPRESENTATION DATED 12.06.2018
SUBMITTED BY THE COUNSEL FOR THE PETITIONER TO THE 3RD AND 5TH
RESPONDENTS.
EXHIBIT P2: TRUE COPY OF THE REPRESENTATION DATED 12.06.2018
SUBMITTED BY THE COUNSEL FOR THE PETITIONER TO THE 2ND AND 4TH
RESPONDENTS.
EXHIBIT P3: TRUE COPY OF THE COMMUNICATION DATED 13.06.2018 ISSUED FROM THE
3RD RESPONDENTS OFFICE TO THE PETITIONER'S COUNSEL.
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
prp/
HRISHIKESH ROY, AG.C.J.
&
A.K. JAYASANKARAN NAMBIAR, J.
-------------------------------
W.P.(C).NO.24041 OF 2018 (S)
-----------------------------------
Dated this the 18th day of July, 2018
JUDGMENT
Hrishikesh Roy, Ag.C.J. The petitioner, who is a lawyer practicing in this Court, has filed this Public Interest Litigation with a prayer for preventing the 1 st respondent Jose K. Mani, who is scheduled to take oath on 18.7.2018 as member of the Rajyasabha. The petitioner projects that the 1st respondent was elected from the Kottayam Loksabha Constituency on 1.6.2016 and his tenure as a Loksabha member will continue until 1.6.2019. The counsel accordingly submits that if the 1 st respondent takes oath as member of the Rajyasabha, it will amount to vacating his Loksabha seat as provided under Article 101 of the Constitution of India. Furthermore, since the balance tenure of Loksabha is less than one year, there is no obligation under Section 151A of the Representation of the People Act, 1951 , to hold the bye-election for the Kottayam Constituency, and in that event, the people of Kottayam will remain unrepresented and this will affect their democratic and other rights.
2. Sri. Sivan Madathil as the counsel for the petitioner refers to the provisions of Article 101(3) of the Constitution of India and the first proviso thereto, which deals with the resignation of a member of Parliament on receiving membership of the other House, to project that in the event the Speaker does W.P.(C).No.24041/2018 2 not accept the resignation of the concerned member of the Parliament, he has to continue as a member of the Loksabha to argue that similar interpretation has to be placed in respect of Article 101(3)(a) as well.
3. The petitioner contends that the 1st respondent, while he was the member of the Loksabha, has filed his nomination for his election as member of the Rajyasabha and since there was no opposing candidate, he was declared to be elected as member of the Rajyasabha and oath is to be administered today by the Chairman of the Rajyasabha. Projecting this, the counsel submits that the 1 st respondent is yet to resign from his membership of Loksabha and therefore it amounts to dual membership of the two Houses of Parliament and this is constitutionally impermissible.
4. We have heard Sri. Sivan Madathil, the learned counsel for the petitioner, Sri. N. Nagaresh, the learned Assistant Solicitor General of India for the 4th respondent as also Sri. Tek Chand, the learned Government Pleader for the official respondent.
5. The Article 101 of the Constitution of India provides that no person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law, for the vacation by a person, who is chosen to be a member of both Houses of his seat, in one House or the other. Such provision is also W.P.(C).No.24041/2018 3 seen in Section 69 of the Representation of the People Act, 1951 which provides that if a person who is already a member of the House of the People and has taken his seat in such House, is chosen as a member of the Council of States, his seat in the House of the People shall, on the date on which he is so chosen, become vacant. The provision for disqualification of members under Article 101(3) is also on similar lines.
6. When we notice the proviso to Article 101(3) of the Constitution of India, it is clear that the said proviso relates to sub clause (b) of Article 101(3) relating to voluntary resignation of membership of one House, which however is not the situation in the present case and therefore those provisions will have no application in the instant case.
7. In a situation where there is no voluntary resignation of membership of the House following election to the other House, the Article 101(3) itself provides that upon such election, the concerned seat shall become vacant. This is also stated in Section 69 of the Representation of the People Act, 1951 . In view of such express provision in the Constitution as also in the Representation of the People Act, the contention advanced by the petitioner, on the 1 st respondent holding dual membership of the two Houses, cannot at all be sustained, and the same is accordingly rejected.
W.P.(C).No.24041/2018 4
8. We might also add herein that the Article 101(3) read with Section 151A of the Representation of the People Act, takes care of the contingencies for not holding a bye-election in the event of vacancies occurring, and when such vacancy is for less than one year, there is no obligation to hold a bye-election. Even for vacancies in excess of one year, the Election Commission can make an exception, after consultation with the Central Government to desist form holding the bye-election. Therefore there is adequate answer in the Constitution as also in the Representation of the People Act of contingencies, when a particular Loksabha constituency may go unrepresented in the Parliament. Therefore, the contention made by the petitioner to the effect that the people of Kottayam must not go unrepresented, under the Laws of the country, cannot be accepted in view of the express statutory provisions under Section 151A read with Article 101(3) of the Constitution.
In view of the foregoing discussion, we consider the writ petition to be one without merit, and the same is accordingly dismissed.
Sd/-
HRISHIKESH ROY ACTING CHIEF JUSTICE Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE prp/18/7/18