1999 Supreme(SC) 556

1999(4) Supreme 333
Supreme Court of India
(From Madras High Court)
D.P. Wadhwa & N. Santosh Hegde, JJ.
K. Venkatachalam -Appellant
versus
A. Swamickan & Anr. -Respondents
Civil Appeal No. 1719 of 1986
Decided on 26-4-1999
Counsel for the Parties :
For the Appellant : Tripurari Ray, Advocate for Vineet Kumar, Advo­cate.
For the Respondent No. 1 : V. Bala­krishnamurthy, P. Kavilan, Advocates (V. Balachandran), Advocate (NP).
For the Respondent No. 2 : A. Mariarputham, Advocate.

Important Points
1. When poll or repoll process is on for election to the Parliament or Legislative Assembly, High Court cannot exercise its jurisdiction under Article 226 of the Constitution and remedy of the aggrieved party is under the Representation of People Act read with Article 329(b) of the Constitution.
2. Bar of Article 329(b) of the Constitution will not come into play when case falls under Articles 191 and 193 and whole of the election process is over.

Headnote:(i) Constitution of India-Arti­cles 226 and 329(b)-Writ petition ques­tion­ing election-Bar under Article 329(b)-When poll or re-poll process is on for election High Court cannot exercise its jurisdiction under Article 226. (Para 20)

       (ii) Representation of People Act, 1951-Sections 5, 191 and 193-Constitu­tion of India-Arti­cles 173, 226 and 329(b)-Writ petition to declare returned not qualified to be elected as MLA-Bar under Article when not attracted-Writ petition filed after one year of election - Ground that returned candi­date was not elector in electoral role of constitu­ency and fraudulently sworn affidavit impersonating himself using similarity in name of another person-Factum of impersonation not disputed-Returned candidate’s plea that writ petition not maintain­able in view of bar under Article 329(b) of Constitution - Not tenable - In circumstances like present case bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of election process is over.

       Held : When the poll or re-poll process is on for election to the Parliament or Legislative Assembly, High Court cannot exercise its jurisdiction under Article 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 one or more grounds specified in sub-section (1) of Sections 100 and 101 of the Act. (Para 20)

       There cannot be any dispute that there could be a challenge to the election of the appellant by filing an election petition on the ground of improper acceptance of his nomination inasmuch as the appellant was not an elector on the elec­toral roll of Lalgudi Assembly Constituency and for that matter also by any non-compliance with the provisions of the Constitution or of the Act. If an election petition had been filed under Section 81 of the Act High Court would have certainly declared the election of the appellant void. It was, therefore, submitted that respondent could not invoke the jurisdiction of the High Court under Article 226 of the Constitution in view of Article 329(b) of the Constitution read with Sections 81 and 100 of the Act and only an election petition was maintainable to challenge the election of the appellant. That right the respondent certainly had to challenge the election of the appellant. Election petition under Section 81 of the Act had to be filed within forty-five days from the date of election of the returned candidate, that is the appellant in the present case. This was not done. There is no provision under the Act that an election petition could be filed beyond the period of limitation prescribed under Section 81 of the Act. That being so the question arises if the respondent is without any remedy particularly when it is established that the appellant did not have the qualification to be elected to the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. (Para 20)

       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 disqualified. Yet he sits and votes as a member of the Legislative Assembly. He is liable to penalty of five hundred rupees in respect of each day on which he so sits or votes and that penalty is recoverable as debt due to the State. There has not been any adjudication under the Act and there is no other provision of the Constitution as to how penalty so incurred by the appellant has to be recovered as a debt due to the State. Appellant is liable to penalty nevertheless as he knows he is not qualified for membership of the Legislative Assembly and yet he acts contrary to law. The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Arti­cle 226 of the Constitution declaring that the appellant is not quali­fied to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. On the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as ‘Venkatachalam s/o Pethu’, taking advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud to the Constitution. (Paras 25 & 26)

       Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Con­sider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legis­lative Assembly and not exercise jurisdiction under Article 226 of the Constitution? (Para 27)

       We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a member of the Legislative Assembly. The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. (Para 28)

       (iii) Constitution of India-Article 329(b)-Bar to interference by courts in electoral matters-Bar will not come into play when case falls under Articles 191 and 193 and whole election process is over. (Para 27)