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R. Sivasankara Mehta Vs. Election Commission of India and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 135 of 1967
Judge
Reported inAIR1968Mad234
ActsConstitution of India - Article 192(1)
AppellantR. Sivasankara Mehta
RespondentElection Commission of India and anr.
Cases ReferredBrundavan v. Election Commission of India
Excerpt:
.....appeal has to..........that before giving any decision on any such question, the governor shall obtain the opinion of the election commission. on the assumption that the declaration of mr. mehta, as an insolvent made him subject to the disqualification mentioned above, the chairman of the madras legislative council made a reference to the governor for giving his decision on the point. the governor in turn addressed the election commission for giving his opinion as provided in art. 192(2) of the constitution.(3) the opinion of the election commissioner on the reference thus made to him by the government is embodied in the madras government gazette notification dated 14-12-1966, publishing the decision of the governor under art. 192(1) of the constitution. the election commission gave an opportunity to sri mehta.....
Judgment:

Ramakrishnan, J.

1. The Appellant in this writ appeal Sri R. Sivasankara Mehta was a Member of the Madras Legislative Council having been elected in April 1962 from the Madras District Local Authorities Constituency. His term would continue till April 1968. In the meanwhile on a petition filed by a creditor he was adjudication as insolvent on 26-4-1966. He filed an appeal on 29-4-1966 against the adjudication and this appeal was numbered as O. S. A. 43 of 1966. Pending the disposal of the appeal he applied for interim relief from the appellate court and three orders in succession were passed on 29-4-1966, 8-8-1966 and finally on 3-2-1967. It is not necessary to set out at length the gist of these orders. We have been taken through these interim orders passed by the Bench of this court dealing with the O. S. Appeal of which one of us was a member. The main conclusion that emerges from these order is that while certain reliefs were orders is that while certain reliefs were given to Sri Mehta, the adjudication as such was not suspended or stayed pending disposal of the O. S. Appeal.

(2) Art. 191(1)(c) of the Constitution says that a person shall be disqualified for being a member of the Legislative Council of a State, if he is an undischarged insolvent. Art 192(1) of the Constitution states that--

'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 Art. 191, the question shall be referred for the decision of the Governor and his decision shall be final.'

Art. 192(2) states that before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission. On the assumption that the declaration of Mr. Mehta, as an insolvent made him subject to the disqualification mentioned above, the Chairman of the Madras Legislative Council made a reference to the Governor for giving his decision on the point. The Governor in turn addressed the Election Commission for giving his opinion as provided in Art. 192(2) of the Constitution.

(3) The opinion of the Election Commissioner on the reference thus made to him by the Government is embodied in the Madras Government Gazette notification dated 14-12-1966, publishing the decision of the Governor under Art. 192(1) of the Constitution. The Election Commission gave an opportunity to Sri Mehta to present his view of the matter. In fact the appellant himself in para 6 of his affidavit in C. M. P. 11701 of 1966 has categorically admitted that, 'the Election Commission, India, has issued a Memorandum dated 12-10-1966 to me giving me an opportunity to present my views on the question raised either in writing or in person or by an authorised counsel and also to put in a written representation so as to reach the Commission on or before 1st November 1966 and also inter alia advising me that if I wanted a personal hearing I will be heard in the Commission's office at New Delhi on 2nd November 1966'.

After considering his objections, the Election Commission tendered the opinion that Sri Sivasankara Mehta had become subject to the disqualification in Art 191(1)(c) of the Constitution on and from 24-4-1966. Thereafter his seat was declared to be vacant as provided in Art 190(3) of the Constitution and the Election Commissioner took up proceedings for holding a fresh election and called for nomination papers for filling up the vacancy. The nomination papers have been also filed, and the election is due to be held on 22-4-1967.

(4) In the meantime, Sri Mehta filed a writ petition No. 910 of 1967 under Art. 226 of the Constitution from which this appeal has been filed. To this petition he impleaded the Election Commission as the first impleaded the Election Commission as the first respondent and the Collector of Madras and Returning Officer as the second respondent. The petitioner alleged that since the adjudication itself is pending appeal no finality has attached to the adjudication and therefore it is wrong to hold that he has become disqualified. He relied upon the interim orders passed from time to time in the O. S. Appeal. But Sri Kailasam J. who heard the writ petition concluded that these interim orders did not have the effect of suspending the adjudication and that Sri Mehta did have the disqualification mentioned in Art. 191(1)(c) of the Constitution and he dismissed the writ petition. Sri Mehta has filed this writ appeal before this court.

(5) At the time of the hearing of the appeal two broad questions emerged on a consideration of the relevant provisions of the Constitution as applied to the facts of the present case. The first question depends upon the scope of Art. 192(1) of the Constitution which states that the decision of the governor on the question of disqualification of a sitting member shall be final. The second question deals with the scope of Art. 192(2) of the Constitution which states that in giving his decision, the Governor shall act according to the opinion of the Election Commission. Our attention has been drawn to the decision of the Supreme Court in Jyoti Prakash Mitter v. Chief Justice, Calcutta High Court, : [1965]2SCR53 which dealt with Art. 217(3) of the Constitution relating to the age of High Court Judges, which provides that if a question arises as to the age of a High Court Judges, it shall be decided by the President and the decision of the President shall be final. The Supreme Court in the above report in para 20 has clearly laid it down:--

'This provision vests the jurisdiction to determine the question about the Judge's age exclusively in the President, and so it follows that in the presence of this provision, no court can claim jurisdiction to deal with the said question.'

It would follow on the same analogy, that the jurisdiction conferred under Art. 192(1) of the Constitution on the Governor to deal with a question arising under Art. 191(1) is an exclusive one and it is not open to this court in writ proceedings to exercise jurisdiction to deal with that question.

(6) The second point which arises for our consideration relates to the scope of Art. 192(2) of the Constitution. The Supreme Court in a recent decision reported in Brundavan v. Election Commission of India, : [1965]3SCR53 has stated at page 1896 that the question of the type contemplated by Art. 192(1) shall be decided by the Governor and the Governor alone. The Supreme Court held in para 16 of the report that the opinion of the Election Commission under Art. 192(2) is in substance decisive and when the Governor forwards a complaint to the Election Commission, it is for the Election commission to proceed to try the complaint before giving its opinion. This view of the Supreme Court was derived from the terms of Art. 192(2) of the Constitution that the Governor 'shall act, according to such opinion.' In that case, which went up before the Supreme Court, the Election Commission had given the notice to the sitting member, called upon him to show cause, held the enquiry and forwarded its opinion to the Governor. The Election Commission in the present case too, has admittedly followed as identical procedure. Learned counsel Sri V.P. Raman appearing for the appellant concedes that an opportunity had been given by the Election Commission to the appellant to show cause against the alleged disqualification. In view of the decision of the decision of the Supreme Court just now cited there is no question therefore of the Governor before giving his decision, giving a further opportunity to the appellant to show cause. The only enquiry that can held in such a case is by the Election Commission. That is the only occasion when the appellant can claim an opportunity to show cause. Admittedly that has been afforded in this case by the Election Commission to the appellant.

(7) Summing up, we are of opinion that the jurisdiction to decide the question of disqualification under Art. 191(1) vests exclusively in the Governor and no court has got jurisdiction to go into it, whether in writ proceedings or otherwise. Next, a sitting member gets the opportunity to put forward his objection to alleged disqualification at an enquiry which is to be held by the Election Commission before the latter forwards its opinion under Art. 192(2) to the Governor. When such an opportunity has been afforded by the Election Commission and the Election Commission has come to a decision on the disqualification and surveyed his opinion about it to the Governor and the Governor has acted upon that opinion and disqualified the member there can be no more occasion for the court to question the decision, either on account of its merits or on account of the member not having been given proper opportunity to show cause, if in fact, as has happened in this case, the Election Commission has given the necessary opportunity.

(8) For the aforesaid reasons, we are of opinion that this writ appeal has to fail. The appeal is dismissed. No order as to costs.

9. Appeal dismissed.


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