Skip to content


Nand Lal Sharma Vs. Election Commission of India and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Petn. No. 266 of 1983
Judge
Reported inAIR1984Raj88; 1983()WLN109
ActsConstitution of India - Articles 192 and 226; Representation of the People Act, 1951 - Sections 146
AppellantNand Lal Sharma
RespondentElection Commission of India and anr.
Appellant Advocate Nand Lal Sharma, Adv.
Respondent Advocate N.L. Jain, Adv. General
DispositionPetition dismissed
Excerpt:
constitution of india - article 192 & representation of people act, 1951--section 146--election commission enjoys powers of civil court in matter of summoning witness, production of documents, examination of witness, issuing of commission etc.--documents not produced inspite of opportunity--held, no case for interference in exercise of extra-ordinary jurisdiction is made out.;the election commission has been given powers of a civil court in respect of the matters as mentioned above. these powers empower the election commission to summon the attendance of any person, require the discovery and production of any document, receive evidence on affidavits, requisition any public record and issue commissions for the examination of witnesses or documents.;the petitioner has been given full..........as they were holding office of profit. the governor referred the matter for opinion of the election commission as required under article 192(2) of the constitution. according to the petitioner, the election commission made an open inquiry in the capacity of a civil court under section 146 of the representation of the people act, 1951 (hereinafter referred to as 'the act'). the grievance of the petitioner now is that the election commission should have given finding on all the issues raised by the petitioner and the final decision taken by the election commission should have been pronounced in the open court and the order pronounced by the election commission cannot be kept as a secret document. the petitioner appeared in person and contended before this court that the governor.....
Judgment:
ORDER

N.M. Kasliwal

1. The case of the petitioner is that he submitted an application on 1st March, 1982, before Hon'ble the Governor of Rajasthan against 40 members of the Legislative Assembly of Rajasthan that they were disqualified, for membership as they were holding office of profit. The Governor referred the matter for opinion of the election commission as required under Article 192(2) of the Constitution. According to the petitioner, the Election Commission made an open inquiry in the capacity of a Civil Court under Section 146 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'). The grievance of the petitioner now is that the Election Commission should have given finding on all the issues raised by the petitioner and the final decision taken by the Election Commission should have been pronounced in the open Court and the order pronounced by the Election Commission cannot be kept as a secret document. The petitioner appeared in person and contended before this Court that the Governor after obtaining the opinion of the Election Commission and before acting according to such opinion should have given an opportunity of hearing to the petitioner. It is also coo-tended that the Governor should be allowed to be impleaded as a party in the present writ petition. Main emphasis has been laid on Section 146 of the Act, according to which the Election Commission is deemed to be a Civil Court while making an inquiry under the aforesaid provision in order to tender its opinion to the Governor under Article 192 of the Constitution. It is contended that when the Election Commission makes an inquiry under the aforesaid provision as a Civil Court, it was incumbent upon it to decide all the issues and to pronounce the order in the open Court.

2. On the other hand, it was submitted by the learned, Advocate General that the opinion dated 8th February, 1983, given by the Election Commission has been duly published in Rajasthan Gazette, Extraordinary, dated March 17, 1983, and the order passed by the Governor on March 5, 1983, has also been published in the same gazette. It is contended that the Governor of Rajasthan had sought the opinion of the Election Commission whether 40 sitting members of Legislative Assembly of Rajasthan had become subject to a disqualification for continuing as such members on the ground that each of them was holding an office of profit as alleged in the petition presented to him by Shri Nand Lal Sharma of Bassi, Jaipur District, petitioner. The Election Commission had asked the contending parties to file written statements, rejoinders, supporting affidavits and documents. The petitioner appeared personally and the opposite parties through Shri N. L. Jain Advocate General, assisted by S/Shri M. I. Khan and Kamlakar Sharma, Advocates and arguments were heard on 27th December, 1982. Thereafter, the Election Commission came to the conclusion that following three main issues emerged for determination:

1. Are the offices to which the opposite parties have been nominated, appointed, offices of profit under the Government of Rajasthan within the meaning of Article 191(1)(a) of the Constitution.?

2. Are the opposite parties entitled to protection from disqualification under the Rajasthan Legislative Assembly Members (Removal of Disqualification) Act, 1956 (Act No. 7 of 1957)?

3. What is the effect of the dismissal of the Civil Writ Petition filed before the Rajasthan High Court by the petitioner on the same grounds.

3. The Election Commission then has given detailed order for giving its opin- ion on the abovementioned issues. In the order it has been finally observed as under:

'Having regard to my above conclusions, I am of the opinion and accordingly hold that none of the opposite par-tics has incurred any disqualification under Article 191(1)(a) of the Constitution and hereby tender my opinion to the above effect to the Governor of Rajas-than.'

4. The Governor after considering the opinion of the Election Commission of India agreed with the view taken by the Election Commission and passed a detailed order on March 5, 1983. It is contended by the learned Advocate General that both the above orders dated 8th February, 1983, passed by the Election Commission of India and dated 5th March, 1983, passed by the Governor had been duly published in the Rajasthan Gazette, Extraordinary, dated March 17, 1983 and it sufficiently complies with the provisions of Section 146 of the Act as well as Article 192 of the Constitution.

5. I have given my thoughtful consideration to the arguments advanced by both the parties and have perused the record.

6. Rajasthan Gazette extraordinary dated March 17, 1983 has been placed on record, which contains both the orders dated 8th February, 1983 passed by the Election Commission as well as the order dated March 5, 1983, passed by the Governor of Rajasthan. Article 192 of the Constitution reads as under:

'192. Deision on questions as to disqualifications of members:-- (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.' According to the above provision if any question arises regarding disqualifications of a member of a house of the Legislature of a State as contained in clause (1) at Article 191, such question is required to be referred for the decision of the Governor and his decision shall be final. Under clause (2) of Article 192 before giving any decision on any such question, the Governor is required to obtain the opinion of the Election Commission and shall act according to such opinion. Thus, the only duty cast upon the Governor under Article 192(2) is that before giving any decision on such question, he must obtain the opinion of the Election Commission. Under Clause (2) of Article 192, the words used are 'shall act according to such opinion.' The Governor of Rajasthan had sought the opinion of the Election Commission by asking a reference in this case and full opportunity of filing documents and hearing was given to the parties including the petitioner Nand Lal Sharma. The Election Commission in its order dated 8th February, 1983, has given detailed reasons for forming its opinion and thereafter the Governor has acted on such opinion.

I see no valid ground or justification in the grievances made by the petitioner, that the order should have been pronounced by the Election Commission in the open court, when such opinion has already been published in the Gazette. Publication in the Gazette is a notice not only to the petitioner but to all concerned. After publication in the gazette there does not remain any secrecy in such opinion and there hardly remains any justification in the objection raised by the petitioner that such opinion has been kept as a secret document. There no requirement of any law that an opportunity of hearing should have been given to the petitioner by the Governor of Rajasthan before acting on the opinion of the Election Commission. In my view there is no necessity for the Governor to give detailed reasons again as Article 192(2) of the Constitution itself makes it incumbent upon the Governor to act according to such opinion as given by the Election Commission. Under clause (1) of Article 192 it has been clearly laid down that the decision of the Governor shall be final. There can be no doubt that while exercising powers under Section 146 of the Act, the Election Commission is deemed to be a Civil Court. Under Section 146(1) of the Act the Election Commission for the purpose of such inquiry, has been given the powers of a Civil Court in respect of the following matters; namely,

(1) summoning and enforcing the attendance of any person and examining him on oath;

(2) requiring the discovery and production of any document or other material object producible as evidence; (3) receiving evidence on affidavits;

(4) requisitioning any public record or a copy thereof from any court or office;

(5) issuing commissions for the examination of witnesses or documents.

The above provision clearly goes to show that the Election Commission has been given powers of a Civil Court in respect of the matters as mentioned above. These powers empower the Election Commission to summon the attendance of any person, require the discovery and production of any document, receive evidence on affidavits, requisition any public record and issue commissions for the examination of witnesses or documents. It is not the case of the petitioner that the Election Commission failed to perform its duty in respect of any of the matters mentioned, above. The petitioner has been given full opportunity of producing documents and have been heard by the Election Commission and thus petitioner has failed to make out any case for interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

7. In the result, I find no force in this writ petition. It is dismissed accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //