TaxTMI 
TaxTMI 
1999 (4) TMI 606
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....tion challenging the election of the appellant on the ground that it was not maintainable under Article 226 of the Constitution in view of bar contained in Clause (b) of Article 329 of the Constitution. General elections to the Legislative Assembly in Tamil Nadu were held in December, 1984 and both VenkatacIalam, the appellant and Swamickan, respondent were the candidates. In the result declared Venkatachalam was elected. A year after the date of election of Venkatachalam, petition under Article 226 of the Constitution was filed by Swamickan for a declaration that Venkatachalam was not qualified to be member of the Tamil Nadu Legislative Assembly representing Lalgudi Assembly Constituency since he was not elector in the electoral roll of Lalgudi Assembly Constituency for the general elections in. question. He also prayed alternatively for writ of quo warranto directing Venkatachalam to show under what authority he was occupying the seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi Assembly Constituency. Swamickan did not a present any petition calling in question the election of Venkatachalam under Section 81 of the Act. He alleged that Venkatachalam imper....
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....d 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 section 16 of the Representation of the People Act, 1950(43 of 1950). Article 173 provides for qualifications for membership of the State Legislature. It is as under :- "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 out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, riot less than twenty-five years of age and, in the 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." Under Clause (3) of Article 190 a member vacates his seat in the Legislature if he becomes subject to any disqualification under Clauses (1) an....
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....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." "193. Penalty for sitting and voting before making oath or affirmation under Article 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 Article 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;" Section 5 of the Act then provides for further qualifications for membership o....
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....d as, or to withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at an election. Under Section 80 of the Act no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Election petition can be presented under Section 81 of the Act calling in question any election on one or more of the grounds specified in Section 100 or Section 101 of the Act and that petition can be filed by a candidate at such election or any elector within 45 days from the date of election of the returned candidate. Section 101 gives the grounds on which a candidates other than the returned candidate may be declared to have been elected. Section 123 defines corrupt practices. Both these Sections 101 and 123 of the Act are not relevant for our purposes. Sections 81 and 100 (in relevant part) are as under:- "81. Presentation of petitions.-(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earli....
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....l be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." Oaths to which a candidate subscribes before and after his election are given in the Third Schedule of the Constitution and these are :- "A. Form of oath or affirmation to be made by a candidate for election to the Legislature of a State : "I, A.B; having been nominated as a candidate to fill a seat in the Legislative Assembly (or Legislative Council), do swear in the name of god/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India." "B. Form of oath or affirmation to be made by a member of the Legislature of a State : "I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the ....
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....e noticed that the language used in that Article and in Section 80 of the Act was almost identical, with this difference only that the Article is preceded by the words `notwithstanding anything in this Constitution'. The Court then said that those words were quite apt to exclude the jurisdiction of the High Court to deal with any matter, which may arise while the elections were in progress. This Court arrived at the following Conclusions :- "(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 significance should be attached to anything which does hot affect the "election", and if any irregularities are committed while it is in progress and they belon....
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....has got to declare his election to be void. Under section 98 of the Act this is one of the orders which the Election Tribunal is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole of with regard to the returned candidate, we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non- compliance with the provisions of the Constitution in the holding of the election and as such sub-section (2)(c) of section 100 of the Act applies." In Brundaban Nayak case AIR (196 5) SC 1892, the question be fore this Court was the interpretation of Article 192 of the Constitution. The appellant was elected to the Legislative Assembly of Orissa and had been appointed as a Minister in the Council of Ministers in the State. P. Biswal, respondent No. 2 applied to the Governor alleging that appellant had incurred a disqualification subsequent to his election under Article l9l(l)(e) of the Constitution read with Section 7 of the Act. Under the instructions of the Governor of the State the Chief Secretary f....
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....ion. This Court dismissed the appeal. In Mohinder Singh Gilt case AIR (1978) SC 851, the Election Commissioner had ordered re-poll after cancelling the whole poll as there were disturbances inasmuch as poll ballot papers were destroyed and the ballot documents from one segment of the constituency were also taken away. The poll proceeded as ordained almost to the very last stages, but the completion of the counting was aborted due to mob violence allegedly mobilised at the instance of the third respondent whom the appellant said was losing and the appellant himself winning by a margin of nearly 2000 votes. One of the questions raised before this Court was: "Is Article 329(b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini viz., the notification by the President calling for the election and the declaration of the result by the returning officer? Is Article 226 also covered by this embargo and, if so, is Section 100 broad enough to accommodate every kind of objection, constitutional, legal or factual, which may have the result of invalidation of an election and the declaration of the petitio....
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.... statutes, language permitting, the conclusion is irresistible, even though the argument contra may have emotional impact and ingenious appeal, that the catch-ail jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a re-poll. Whether, in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect wilt be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be ....
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....rant of the certificate of election in Form 22 to the petitioner was meaningless. We are of opinion that the process of election came to an end only after the declaration in Form 21C was made and the consequential formalities were completed. The bar of Clause (b) of Article 329 of the Constitution came into operation only thereafter and an election petition alone was maintainable. The writ petition cannot be entertained." In Election Commission of India v. Shivaji and others, AIR (1988) SC 61, this Court had again occasion to consider the jurisdiction of the High Court under Article 226 vis-a-vis Article 329(b) of the Constitution. It also referred to its earlier decision in Punnuswami case [1952] SCR 218 and Mohinder Singh Gill case [1978] 2 SCR 272. In all these cases there is a common message that when the poll or re-poll process is on for election to the Parliament or Legislative Assembly, High Court cannot exercise its jurisdiction under 226 of the Constitution and that remedy of the aggrieved parties is under the Act read with Article 329(b) of the Constitution. The Act provides for challenge to an election by filing the election petition under Section 81 on on....
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.... a term of seven years rigorous Imprisonment in the year 1942. He was released on the occasion of celebration of the Independence Day on August 15, 1947. In June, 1952 there was to be a by-election to a reserved seat in the Kakinada constituency in Madras Legislative Assembly and the respondent, desiring to offer himself as a candidate but finding himself disqualified under the Act, as five years had not elapsed from his release, applied to the Election Commission on April 2, 1 952 for exemption so as to enable him to contest the election. The respondent did not receive any reply till May 5, 1952, the last date of filing nominations. He filed his nomination on that day. No exception was taken to it either by the Returning Officer or any other candidate. Election was held on June 14, 1952 and the respondent was declared elected on June 16, 1952 and the result of the election was duly published in the Gazette on June 1 9, 1952. Respondent, thereafter took his seat as member of the Assembly on June 27,1952, Meanwhile the Election Commission rejected the respondents application for exemption and communicated such rejection to the respondent by its letter dated May 13, 1952, which it is....
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.... accepted. The Attorney General admitted that if the word "is" were substituted for "becomes" or "has become", it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used." Finally, this Court said that Articles 190(3) and 192(1) are applicable only to disqualifications to which a member becomes subject after he is elected as such, and that neither the Governor nor the Election Commission has jurisdiction to inquire into the respondent's disqualification which arose long before his election. It may be noted that in this case an argument was raised by the Attorney- General that Articles 190 to 193 should be read together and that Article 190(3) and Article 192(1) would include within its scope pre-existing disqualifications as well. This argument was negatived by this Court when it said :- "The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications Of Members," viz., Article 190 to 193, should be read together, and as Articles 191 and 193 clearly cover both pre-existing and supervening disqualifications, Articles 190 and 192 should also be similarly understood as rel....
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....s a member. This Court was examining the issue if action under Article 192 could be taken when the respondent Venkata Rao had already incurred disqualification prior to his nomination for being elected to the Madras Legislative Assembly and that after his release from the conviction prescribed for him to file his nomination was yet hot over. This Court, therefore, held that action under article 192 could not be taken against Venkata Rao. In the present case the appellant was not an elector in the electoral roll of Lalgudi Assembly Constituency. He, therefore, could not be elected as a member from that constituency. How could a person who is not an elector, from that constituency could represent the constituency? He lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Act which mandated that a person to be elected from an Assembly constituency has to be elector of that constituency. The appellant in the present case is certainly disqualified for being a member of the Legislative Assembly of Tamil Nadu. His election, however, was not challenged by filing an election petition under Section 81 of the Act, Appellant knows he is....