M.L. Jain, J.
1. This is a petition for a writ of Quo Warranto under Article 226 of the Constitution directed mainly against respondent No. 4, Shri Bhairon Singh Shekhawat, at present the Chief Minister of Rajasthan. The petitioner prays for some other consequential reliefs as well. In the array of respondents, the petitioner also included the Governor of the State of Rajasthan,
2. The petitioner describes himself an elector registered in the Hawa Mahal Assembly Constituency of Jaipur and the General Secretary of the Pradesh Yuvak Congress Committee, Rajasthan. He alleges that the name of the respondent No. 4 stands entered in the electoral roll of the Kishanpole Assembly Constituency of Jaipur right from the year 1966 down to the year 1975-77. However, In the year 1974, he made an application on Feb. 18, 1974, before the Electoral Registration Officer of the Govindpura Constituency. District Bhopal, Madhya Pradesh, for inclusion of his name in the electoral roll of the said Constituency vide Ex. 5. In this application, which was made in the prescribed form under Rules 13 and 28 of the Registration of Electors Rules, 1960, he stated that 'my name may have been included in the electoral roll for the Kishanpale Assembly Constituency in Rajasthan State under the address mentioned below and if so, I request that the same may be excluded from the electoral roll.' Respondent No. 4 was accordingly entered in the electoral roll for the Assembly Constituency No. 239 Bhopal South for the year 1975 which was finally published on Aug. 16, 1976. On the basis of this registration in Madhya Pradesh, the petitioner contested the election to the Rajya Sabha from Madhya Pradesh and was elected thereto. However, respondent No. 4 came to be appointed the Chief Minister of the Government of Rajasthan on June 22, 1977, without being a member of the Rajasthan State Legislative Assembly. This office the respondent could not hold beyond a period of six months as required by Article 164(4) of the Constitution without having meanwhile become a member of the State Assembly. This period was due to expire in Dec. 1977. A bye-election was held in the Chabra Assembly Constituency of the State of Rajasthan in Nov. 1977. The name of the petitioner appears not to have been deleted from the Kishanpole Constituency and it appeared in the electoral roll of 1975 at serial number 242, Ex. 4. It is alleged that having been registered as an elector in a Constituency in Madhya Pradesh, his name could not have appeared in the electoral roll of any constituency in Rajasthan, in violation of Section 17 of the Representation of the People Act, 1950. Yet knowing fully well that he already stood registered as an elector in Madhya Pradesh, the respondent No. 4 contested the said bye-election as an elector in Rajasthan. An objection was raised against his nomination, that he could not be an elector in two places simultaneously. The Returning Officer rejected the objection holding that according to Section 36(7) of the Representation of the People Act, 1951, the electoral roll for the time being in force was conclusive evidence of his being an elector and, therefore, his nomination could not be rejected though a violation of Section 17 of the Representation of the People Act, 1950 had taken place. The petitioner alleges that the respondent No. 4 has played fraud on election law and election authorities by not informing them that he was duly registered elector in a constituency in Madhya Pradesh, and that without having his name deleted from the electoral roll of Bhopal, he took advantage of an illegal entry in the electoral roll of Kishanpole Constituency.
3. The return of the election is Ex. 11 of Nov. 28, 1977, in which the Returning Officer declared that Shri Bhairon Singh Shekhawat of Civil Lines, Jaipur, has been elected to fill the seat for the Chhabra Vidhan Sabha Constituency. He must have further obtained a certificate from the Returning Officer stating that he has been elected 'to be a member' of the said constituency. According to Article 188 of the Constitution, he was required to make and subscribe oath as prescribed in the III Schedule before taking his seat in the Assembly. Meanwhile, on Nov. 16, 1977, the Secretary to the State Government had put up a memo to the Governor of Rajasthan submitting that in case of the persons who had not taken the prescribed oath on July 18, 1977, and those who may hereinafter be elected, the Chief Minister (i.e. respondent No. 4) recommends that Shri Laxman Singh, who had by then been elected as the Speaker, may be appointed as the person before whom the members of the Legislative Assembly shall in future make and subscribe oath or affirmation, as the case may be. The Governor, Shri Raghukul Tilak, on Nov. 17, 1977, approved the said recommendation. In pursuance of this approval, it appears that the Secretary to the Government in the Department of Parliamentary Affairs, issued an order on Nov. 23, 1977, a copy of which was sent to the Secretary, Legislative Assembly, and which was also published in the Rajasthan Gazette, Extraordinary of November 24, 1977. This order was issued in supersession of the notification dated July 13, 1977, by which Major Fateh Singh had been appointed under Article 188 of the Constitution. It further appears that this order was issued on the same lines on which such orders were issued in the year 1967 and in the year 1972 as shown by Ex. R/2 and R/3. This order does only say that the Governor has been pleased to appoint Shri Laxman Singh to be the person before whom the members of Legislative Assembly shall make oath or affirmation but significantly enough it omits to say that he shall be the person before whom the members shall also subscribe the oath. Shri Bhairon Singh Shekhawat made oath and also subscribed it before Shri Laxman Singh on Dec. 19, 1977. The contention in this regard is that there was no valid authority conferred on Shri Laxman Singh as far as subscription of the oath is concerned. Even the identity of Shri Laxman Singh was not shown in the said notification. The respondent has thus failed to acquire the membership of the State Assembly, in terms of Article 188 of the Constitution and he could no more continue to be a minister after the expiry of six months. He is thus an usurper of public office.
4. It is prayed that the respondent No. 4 be ousted from the office of an M. L. A. as well as of the Chief Minister and be restrained from continuing as such. It was also prayed that the notification Ex. 13 containing the appointment of Shri Laxman Singh under Article 188 be quashed. Since the respondent has occupied his seat and voted in the State Assembly without being its member, he has rendered himself liable to a penalty of Rs. 500/- per day as provided in Article 193 of the Constitution and the State Government, respondent No. 1, be directed to recover the penalty as a debt due to the State and further to prosecute him under Section 31 of the Representation of the People Act, 1950. It is further prayed that it be declared that the entry of the respondent No. 4 in the Kishanpole Assembly Constituency electoral roll was null and void and further that he, not being a lawful elector in Rajasthan, no constituency was available to him for election in that State and his election from the Chhabra Assembly Constituency was null and void.
5. The State Government entered caveat and filed their objections along with affidavits which were found defective and were subsequently amended. I need not reproduce in detail all what has been stated by the Government as it will be sufficient for the present purpose to state briefly the stand taken by the State Government. Their contention is that this court has no jurisdiction to entertain this petition and it should be rejected in limine. It is maintained that the Gazette notification is an unnecessary and redundant document and should be ignored because notification in the Gazette is not at all necessary for an appointment under Article 188 of the Constitution. What is actually material is the approval of the Governor recorded by him on Ex. R/l. The learned Advocate for the State maintained further that as far as the objection relating to an infraction of Section 17 of the Representation of the People Act, 1950, is concerned, it cannot be raised after a delay of three years after the name of the respondent appeared in the last and current electoral roll on the Kishanpole Constitution. It was further stated that the Constitution envisages that a person can be a member of two constituencies simultaneously and has to resign within prescribed time from one of those memberships if he does not want to lose both. That shows that a person can be registered as an elector simultaneously in two different constituencies, be they in the same State or in different ones. The State also contended that according to the amended Article 226 of the Constitution unless the petitioner alleges substantial injury or substantial failure of justice the jurisdiction of Article 226 cannot be invoked. It is further canvassed that Article 329 of the Constitution raises a complete bar against the exercise of such jurisdiction in respect of any matter relating to an election which can be challenged only by way of an election petition and two such petitions have already been filed against the respondent No. 4. As a matter of fact, the substance of the matter relates to wrongful acceptance of a nomination paper which is squarely covered by Section 100 of the Representation of the People Act, 1951. As regards the matter relating to oath, it was said that the appointment of Shri Laxman Singh was validly made by the Governor and the action taken in pursuance of the said order Ex. R/l cannot be invalidated on account of a clerical omission made by the Secretary of the Parliamentary Affairs while issuing an order under Article 166(2) of the Constitution. It was also contended that as soon as a person is declared elected, he becomes a member of the Assembly and the requirement of making and subscribing an oath may be completed at any time thereafter. Making and subscribing an oath is not a condition precedent for becoming a member of the Assembly. This is a condition only for taking a seat in the Assembly, the breach of which neither invalidates the proceedings nor does it disqualify the elected person from membership. It was on these grounds that it was urged that the writ petition deserves to be dismissed summarily.
6. Lengthy arguments were made before me on either side spread over several days upon the questions which can be stated in short as follows :---
(i) whether the respondent No. 4 could not be an elector in two places at the same time and he concealed the fact that he is an elector in Madhya Pradesh and further he could not be and was not an elector in Rajasthan and therefore was not entitled to contest the bye-election of the Chhabra Assembly Constituency ?
(ii) whether the subscription of the oath made before Shri Laxman Singh is invalid and even if it were so, the membership of the respondent No. 4 of the Rajasthan Legislative Assembly does not depend upon subscription of his oath under Article 188 of the Constitution?
7. Before I proceed to decide these questions, I may first dispose of the preliminary points raised by the State.
8. It was urged on behalf of the State that under the amended Article 226 of the Constitution a person cannot invoke the jurisdiction of the High Court under Article 226, unless he shows that there has been substantial injury or substantial failure of justice for which no other remedy is available The petitioner has failed to allege anything of the kind. Even otherwise as held in Kalyanmal Jaisani v. State of Rajasthan (AIR 1972 Raj 234) a person, who has no personal interest in the subject matter of the writ petition, or who has not been prejudicially affected by an impugned notification, cannot invoke the extraordinary jurisdiction of the Court. In Prabhudutt Sharma v. State of Rajasthan, ILR (1970) 20 Raj 759 : (1971 Lab IC 556), it was held that the conditions for the issue of a writ of quo warranto are four: (i) the office alleged to have been usurped must be held under the State or has been created by a Statute; (ii) it should be an office of a substantive character; (iii) its duties must be of 3 public nature; and (iv) it should have been usurped by some person. Even when these requirements ore fulfilled, it is in the discretion of the Court to refuse or to grant the writ after taking into consideration the circumstances of the petition and the consequences which would follow, if it is allowed. In other words, it should be in the public interest to grant the writ. In Kumari Chandra Kala v. Laloo Ram, 1968 Raj LW 418, a writ of quo warranto against a Pradhan of a Panchayat Samiti was refused even though the oath was not administered by a proper person. It was observed that the Constitution has not treated not taking of an oath as a disqualification resulting in the unseating of the member and absolute failure to take an oath has to be distinguished from some technical error in taking an oath. I have considered it and it is obvious that no writ of quo warranto or for that matter any other writ or direction can be issued unless the petitioner shows that substantial injury or substantial failure of justice has been caused as long as Article 226 stands amended, but it further appears to me that if the Chief Minister is bolding office without lawful authority, and in breach of the Constitutional provision, having not acquired valid membership within six months of Ms appointment as the Chief Minister without being a member of the Legislative Assembly, a substantial injury is carised to every member of the public and a citizen of the State which the petitioner certainly is. I agree, inclined as I am at present to think that if a person in the position of the Chief Minister occupies his office unlawfully, then a case of substantial injury to the petitioner is prima facie and per se made out, even though he is not able to show any specific interest or prejudice affecting him individually. Therefore, this Court has the necessary jurisdiction to examine whether a writ of quo warranto should be granted in this case or not.
9. The next objection is whether the membership of an Assembly is an office so as to attract the basic condition necessary for the issue of a writ of quo warranto. In Satish Chander Sharma v. University of Rajasthan, AIR 1970 Raj 184, membership of the University Syndicate was held to be a public office. In Dr. Deorao Laxman v. Keshav Laxman, AIR 1958 Bom 314 it was observed that the word 'office' has been judicially construed in several different senses and in each case, a meaning has been assigned to it having regard to the language used in the enactments and its objects. In Smt. Kanta Kathuria v. Manak Chand Surana AIR 1970 SC 694, the Supreme Court remarked that the word 'office' has its various meanings, depending upon its context. Now, the Constitution uses the word 'seat' in Article 188 and does not use the word 'office' as it does in other Articles. Thus the Constitution has maintained a distinction between the words 'seat' and 'office'. In Sections 147, 151 and 154 of the Representation of the People Act, 1951, with reference to the Council of States and a Legislative Council, the words used are 'term of office of a member', but in Sections 149 and 150 thereof, which deal with House of the People and Legislative Assembly, the words 'seat of a member' have been employed. A 'seat' is something different from an 'office'. The membership of the Assembly, to my mind, cannot therefore, be equated with an office. But that will be no ground for holding that this writ petition is not maintainable. Ali Mohammed Tariq v. Election Commission of India, AIR 1968 J and K 46 went so far as to hold that a writ of quo warranto can certainly be issued against a member of Parliament asking him to explain how he can claim to exercise the functions of such a member. Moreover, here, what is in question is not the membership of the assembly but the office of a Chief Minister and against him a writ of quo warranto can certainly lie. It is a public office of substantial character created by the basic statute alleged to have been usurped by the respondent No. 4.
10. It was next urged that no writ can lie against the Governor as he enjoys immunity under Article 316 of the Constitution as was held in Ram Rakh Vyas v. Union of India, 1977 Raj LW 65 : (AIR 1977 Raj 243). Even if the writ were not maintainable against the Governor as such, the writ cannot fail on that ground as it survives against the other respondents.
11. Yet one more objection raised was that along with Shri Shekhawat, Respondent No. 4 one more M. L. A. named Bal Krishan Thanvi, returned from Phalodi, was also administered oath by Shri Laxman Singh in pursuance of the impugned order and unless he is made a party, the question of subscription of oath before an unauthorized person cannot be finally decided. The election of Shri Thanvi is not under challenge and thus, he is neither a proper nor a necessary party and the writ petition can be decided even without joining him as a party. I, therefore, overrule this objection.
12. Now, reverting to the first question, according to Section 17 of the Representation of the People Act, 1950, no person is entitled to be registered in the electoral roll for more than one constituency. There is no doubt that respondent No. 4 stands registered in two constituencies, one in Madhya Pradesh and the other in Rajasthan. Learned counsel for the State submitted that what the petitioner, in substance, contends is that on account of illegal registration of the name of the respondent No. 4 in Kishanpole Constituency, his election from the Chhabra Constituency is null and void, but Article 329(b) of the Constitution provides that an election can be called in question only by means of an election petition and as held in Mohinder Singh Gill v. Chief Election Commr., New Delhi, (1978) 1 SCC 405 : (AIR 1978 SC 851), it is a blanket ban on all manners of questions which may have impact on the ultimate result of the election arising between the two temporal terminii, namely, a notification by the President calling for the election and the declaration of the result by the returning officer and pushes out Article 226 of the Constitution. The learned Counsel for the petitioner, on the other hand, contends that the remedy of the election petition is available only to an elector in the constituency in which the election took place vide Section 81 of the Representation of the People Act, 1951, and since the petitioner is not such an elector he cannot avail of an election petition. Besides, registration as an elector is a pre-election matter and therefore, the petition is not hit by the provisions of Article 329(b). He mainly relies upon Atma Siugh v. State of Rajasthan, 1967 Raj LW 275 : (AIR 1967 Raj 239) (FB). The relevant passage runs as follows,--
'The process of election starts by issuing of a notification calling upon a constituency to elect a member or members. Before such a notification can be issued, a number of preliminary steps have to be taken under the law. The law has laid down the manner in which these things are to be done. There may arise cases in which the authorities have failed to perform their functions in accordance with law in doing these things. Sometimes the transgression of law may be inexcusable and of such a serious nature that a court may be persuaded to take the view that the bedrock to hold election is missing. In such circumstance, a citizen may apply to this Court under Article 226 of the Constitution for issuing of mandamus or any other appropriate writ directing the State Government to perform these things in accordance with law and the High Court in an appropriate case may, in its discretion, issue such a writ or direction restraining the Government to hold election. Suppose nobody comes forward at that stage and the elections are held. Even then, a citizen may file a petition under Article 226 of the Constitution not only for a declaration that the State Government has not acted in accordance with law in doing of the aforesaid things and that what has been done is null and void but also for a further declaration that the election that had taken place be also held null and void. The High Court may take into account the circumstance that the petitioner could have come earlier before the elections for relief in this Court under Article, 226 of the Constitution and he has failed to do so but it may find that the infirmity in taking these proper steps is of such consequence that no elections could have taken place and it may in its discretion then quash the preliminary steps taken in these pre-election matters and may as a consequence also set aside the election. What the Court could do before the election, it can also do after the elections'.
He also places reliance upon the Chief Commr. of Ajmer v. Radhey Shyam Dani, AIR 1957 SC 304, where the electoral roll of the Municipality not being in conformity with the provisions of Section 30(2) of the Ajmer Merwara Municipalities Regulations, 1925, it was held that it could not form the basis of any valid elections to be held to the Ajmer Municipal Committee. In Surendrasinhaji v. U. M. Bhatta, Chief Electoral Officer, Ahmedabad AIR 1969 Guj 292, it was held that delimitation of constituencies or preparation, revision or amendment of the electoral roll, is not a stage in the process of any particular elections but is an anterior stage and the jurisdiction of the High Court under Article 226 is not ousted. It was also urged that no objection could be raised by the petitioner against the registration of the respondent under the Registration of Electors Rules, 1960, because, as per Rules 13 (2) and Form 7, such an objection can be made only by the person whose name is already included in that roll, while the petitioner belongs to a different constituency. The remedy of appeal will also therefore not be available to the petitioner. The petitioner came to know of double registration only after the petitioner/ respondent came forward to contest the bye-election. The petitioner, therefore, contends that his only remedy is in such a case by way of this writ petition. In Ali Mohammed Tariq v. Election Commission of India. (AIR 1968 J and K 46) (Supra), it was held that Court can declare the office to be vacant in case it comes to the conclusion that his seat has become vacant due to operation of law.
13. The learned counsel for the State replied that in view of the Supreme Court's decision in Mohinder Singh Gill's case (supra), the matter stands concluded and the election of a member can be challenged only in accordance with the law under Article 329 of the Constitution. If there is no remedy available after an election has taken place to challenge it on the ground that there was some defect in registration of electors or in respect of any other pre-election matter, it does not mean that the petitioner can resort to Article 226 of the Constitution. If the petitioner wanted to dispute the double registration of respondent No. 4, then he should have filed a writ petition before the election. In Nripendra Bahadur Singh v. Jai Ram, AIR 1977 SC 1992, it was held that the finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had, on that score, not been corrected before the last hour of making nominations. After that dead-line, the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of consideration of disqualification under Section 16 of the 1950 Act. In Rudhey Shyam Dani's case (AIR 1957 SC 304) (supra), the electoral roll was questioned long before the election Look place and the other rulings relied upon by the petitioner have lost their validity after Mohinder Singh Gill's case (supra). It was further urged that as held in Shanti Swaroop v. Abdul Rehman, AIR 1965 Madh Pra 55, the provisions of Section 17 of the Representation of the People Act, 1950, are directory and even if they are not observed in a particular case, it cannot be said that the nomination of any person, whose name appears in the electoral rolls of two constituencies, is void or that there was any non-compliance with the provisions of the Constitution or the Representation of the People Act, 1951. Where the elector applies for inclusion of his name in another constituency, the electoral registration officer of the first constituency has to pass an order under Section 23 of that Act about removal of the name from the electoral roll of that constituency and such removal is not an automatic consequence of the entry of the name in the electoral roll of the other constituency, and the failure of the electoral registration office of the first constituency to remove the name of the applicant from the electoral roll of that constituency does not make the entry invalid or liable to be called in question otherwise than by way of an appeal under Section 24 of the Act. Reliance was also placed, in this connection, upon B. M. Ramaswamy v. B. M. Krishnamurthy AIR 1963 SC 458. Venkatachalam Chettiar v Meiyappan (1967) 29 Ele LR 336 (Mad) also, it was held that the provisions of Section 17 of the Representation of the People Act, 1951 are directory and if the name of the respondent was entered in the electoral roll of two constituencies, it did not render the acceptance of his nomination or his election, invalid. Double registration was not viewed as a disqualification. If it were so, then the Parliament would have incorporated the provisions in Section 17 as a limb of Section 16 Double registration whether under Section 17 or 18, is not per se, illegal and does not deprive the person so registered of his right as a voter to cast his vote or as elector to stand for election as a candidate. This case also answers the contention that the respondent has been able to win an election by practice of some concealment or fraud. It was held that if it is found at some incidental inquiry, the returned candidate has given a piece of false testimony, there may be room to penalise him in independent proceedings, but there is no authority to show that such false testimony, even if given, can be linked up either with the acceptance of the nomination paper or the election for treating it as defect in the nomination paper or disqualification to stand for election. In Keshao Prasad v. A D Mani 1961 Doabia's Ele Cas 133, it was observed that Section 17 does not impose a bar on a person for standing for election for any constituency if his name has been erroneously entered in the electoral roll for more than one constituency.
14. I have considered over the matter and it appears to me that as laid down under Article 329(b) of the Constitution, an election can be challenged only by way of an election petition. I agree that Atma Singh's case (AIR 1967 Raj 239) (FB) (supra) has lost its validity after Mohinder Singh Gill's case (AIR 1978 SG 851) (supra). I also agree with the argument of the learned counsel for the respondent State that an election is not a constitutional or a common law right and the petitioner can avail of only the remedies which were available to him under the law. Rather, the Constitution itself bars all remedies except the ones provided by Parliament however short of complete satisfaction to the aggrieved persons they may be. If the petitioner cannot challenge the electoral roll or if he cannot file an election petition, not being an elector in the Constituency of Chhabra, that itself cannot leave him scope to challenge the election by way of a writ petition. To permit a person to do so will be to violate the provisions of Article 329(b) of the Constitution. There is no doubt that after the declaration made by the respondent before the Electoral Officer Bhopal, his name should have been deleted from the Kishanpole Constituency, but if his name has not been so deleted, and continues to remain on the electoral roll of the Kishaupole Constituency, and meanwhile the petitioner changes his Ordinary residence, then, he is required to do nothing in the matter of his registration in the Kishanpole Constituency as his name already stands in the electoral list. Any way, all these are matters which can properly be gone into by the Election Court. And as held in Bhairulal Chunilal v. State of Bombay, AIR 1954 Bom 116, the writ of quo warranto is not issued as a matter of right. When there are statutory provisions dealing with the conduct of an election, the writ of quo warranto is displaced and an election can only be challenged in the manner laid down by the statute, question No. 1 therefore, is decided against the petitioner.
15. As to the second point, the learned Government Advocate contended at the outset that this Court has no jurisdiction to go into the matter how the Legislative Assembly conducts its business and Articles 188 to 193 of the Constitution fall under the heading 'Conduct of Business'. Reliance was placed in this connection on M. S. M. Sharma v. Dr. Shree Krishna Sinha, AIR 1960 SC 1186. The validity of the proceedings inside the Legislative Assembly of a State cannot be called in question on the allegation that the procedure laid down by the law had not been strictly followed. No court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business. It is true that in the matter of conduct of the business, the courts are precluded from examining the validity of any procedure, but at the same time, it will be a tall claim to make that the Legislature is empowered to commit breach of any provisions of the Constitution, without any interference by the Courts or law. Moreover, conduct of business follows the oath. The learned counsel for the petitioner pointed out that unlike in U. K. the oath in India can be administered outside the Assembly Chamber and even when the House is not in session. In Thankamma v. Hon'ble the Speaker, Legislative Assembly, Travancore-Cochin State, AIR 1952 Trav-Co 166, it was correctly held that the administration of the oath is not a function exercised by the Speaker in his official capacity in the conduct of the business of the house. He could be appointed to administer oath just as any other person could be so appointed. Oath allowed the members to sit in the Assembly and take part in the conduct of the business of the Assembly. So it is only a condition precedent to entitle the members to sit in the Assembly and conduct its business. It is not an item in the conduct of business protected by Article 212. I, therefore, reject this objection.
16. Article 188 of the Constitution lays down that every member of the Legislative Assembly shall, before taking his seat, make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation, according to the form set out for the purpose in the third Schedule. This Article, clearly casts a duty on the Governor, to either himself administer oath or to appoint a person in that behalf for the purpose. This power should have been, exercised by the Governor himself and it is not a function of the nature to which Article 166(2) of the Constitution, has any application. As a matter of fact, that is a practice which the President of India follows and himself signs the order of appointment under the analogous Article 99. However, I notice from the record produced by the State Government that an appointment under Article 188 of the Constitution made by Governor is authenticated in the manner provided under Clause (2) of Article 166, That practice, to me, appears to be not in accordance with the provisions of the Constitution., but at the same time, it has prevailed at least in this State right from the year 1952 down to the year 1977. It will not be proper for this Court, at such a distance of time, to hold that any action taken in virtue of such practice is void. I would, however, like to say that in future proper constitutional procedure should be followed in this respect. Now, there is no doubt that the order issued by the Secretary, Parliamentary Affairs, that Shri Laxman Singh was appointed under Article 188 of the Constitution, was defective in the sense that it omitted to authorize Shri Laxman Singh to be the person before whom the member could subscribe his oath There is no doubt further that if a person sits or votes as a member of the Legislative Assembly, without having complied with the requirement of Article 188, be is liable to a penalty of Rs. 500/- per day to be recoverable as a debt due to the State. The learned counsel for the State urged that the prescription of this penalty clearly shows that the question of membership does not depend upon the taking or not taking the oath. It was strenuously contended by him that as soon as a person is declared elected to fill a seat in the constituency vide Form 21 and gets the certificate from the Returning Officer in the form No, 22 appended to the Conduct of Election Rules, 1961, he becomes a member of the Assembly. The learned Counsel for the petitioner on the other hand, submits that the Returning Officer only declares, the result and the Certificate only shows that the respondent has been duly elected by the Constituency 'to be' a member of the Legislative Assembly. It was urged that the words 'to be' means that membership can be acquired only after the requirements of Article 188 of the Constitution have been complied with. Reliance was placed, in this connection, upon Shabbir v. State AIR 1965 All 97. According to Article 219 of the Constitution, a person appointed to be a Judge of the High Court shall, before he enters upon his office, make and subscribe before the Governor or some other person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. It was urged that until a judge takes oath, he is a judge designate and does not become a judge until he takes oath. He enters upon his office only when he takes the prescribed oath or affirmation. It was, therefore, pointed out that when the Returning Officer only certifies that respondent No. 4 has been elected to be a member, it simply means that he cannot become a member until he takes his seat in, the Assembly and such seat he cannot take until he makes and subscribes the prescribed oath or affirmation in the manner and before a person as laid down by the Constitution. In the Allahabad Case (supra), it was even held that no general authorization is possible (as was done in this case) because the Governor has to apply his mind and decide whether he would like the oath to be made and subscribed before him or would appoint someone else to do so each time when an appointment is announced. There is no gainsaying that the provisions of oath are meant to be complied with and a person is not entitled to sit and vote unless he takes the oath of his office. I am, therefore, of the view that by mere declaration of result or certificate of election, a person does not become a member of the Assembly. In spite of all this, if he sits and votes as a member, he is a mere person (and not a member) liable to penalty. Therefore, the question that survives is whether the order Ex. R/l fulfils the Constitutional requirement and whether the omission of the Secretary to carry out in full the order made by Governor can defeat the Governor's order.
17. The learned counsel for the State maintains that the function under Article 188 of the Constitution is an executive function and as held in Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181, an executive decision, when it affects an outsider or is required to be officially notified or be communicated, it should normally be expressed in the form mentioned in Article 166(1) of the Constitution but an omission to make an authentication of the executive decision in the form mentioned in Article 166, does not make the decision itself illegal, for the provisions of that Article are merely directory and not mandatory. Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself and does not render the executive action a nullity. Reliance, in this connection, was also placed on the State of Rajasthan v. Sripal Jain AIR 1963 SC 1323, which laid down that any defect of form in the order by the Government would not necessarily make it illegal and the only consequence of the order, not being in proper form as required by Article 166 is that the burden is thrown on the Government to show that the order was in fact passed by it.
18. It appears, after consideration, that on the recommendations of the Chief Minister, the Governor has appointed Shri Laxman Singh, who was the Speaker of the Assembly, as the person before whom the persons elected to the Assembly were to make and subscribe the prescribed oath or affirmation. Therefore the subscription of the oath made before Shri Laxman Singh is a valid act and cannot become incomplete or illegal because the order authenticated by the Secretary of the Government under Article 166 of the Constitution omitted some words out of it, so long as the Governor purported to have given the Speaker an authority both for administering oath and for allowing subscription thereof before him. I further agree with the learned counsel for the State that making of an oath or affirmation is not complete until it is subscribed by the person making oath or affirmation, as likewise, subscribing an oath will not be complete unless oath is orally taken. Therefore, the appointment of the Speaker as a person before whom an oath can be made, includes in its sweep by necessary implication his appointment as a person before whom oath shall also have to be subscribed. Subscribing of an oath inheres in making of an oath. Making an oath implies subscribing it. It is not possible to accept the contention that after making an oath in the prescribed form, the member concerned should have approached the Governor with a request that since he has not authorised any person before whom oath can be subscribed, the member should be permitted to do so before the Governor himself. No such dichotomy in making of an oath and subscribing an oath is conceivable. I, therefore, hold that there has been sufficient compliance with the requirement of Article 188 of the Constitution and the respondent No. 4 has validly acquired a seat in the Assembly and its resultant membership, so as to enable him to continue in the office of the Chief Minister beyond a period of six months. I may also add that the act of continuance in the office of the Chief Minister by respondent No. 4 cannot amount to usurpation of office because it seems to me that usurpation involves an act for which there is not initial or basic justification; it is not like an act of assuming some jurisdiction where there is none. Nor does such continuance cease to be valid, because the Secretary to the Government failed to issue tin order in accordance with the approval accorded by the Governor. It is no fault of the member taking the seat that the order of appointment was not strictly in accordance with the letter of the Constitution. I may also dispose of the argument that the order of the Government Ex. R/l is itself not valid on the ground that it was made at the recommendation of a person, who himself was required to make an oath. To accept this argument will be to deny to the Governor the benefit of the advice of the Chief Minister whose appointment for six months even without being a member, was a constitutionally permissible appointment and which advice, the Chief Minister was constitutionally bound to render and the Governor to accept, I, therefore, see no force in the second point made by the petitioner.
19. In that view of the matter, there can be no question of directing the State Government to levy and recover the penalty as provided under Article 193 of the Constitution. Does the writ petition still survive for the comparatively unimportant question whether the name of the petitioner should be struck off the electoral rolls of the Kishanpole Constituency I do not think that any case is made out for removing the name of the respondent No. 4 from the electoral roll of the Kishanpole Constituency as long as there is no allegation and proof that the petitioner does not ordinarily reside in that constituency. It will however, certainly be for the concerned electoral registration officer of the State of Madhya Pradesh to consider whether the name of the respondent No. 4 should no more appear in the electoral rolls of that State.
20. The prayer for prosecution under Section 31 of the Representation of the People Act, 1950, is wholly misconceived because such a prosecution is permissible only if the respondent had made a false declaration in connection with the preparation, revision or correction of or the inclusion or exclusion of any entry in an electoral roll. The appearance of his name in the Kishanpole electoral roll was not based upon any declaration made by the respondent No. 4.
21. I, therefore, find that the writ petition has no force and it is hereby dismissed in limine.