Judgement

GAJENDRAGADKAR, C.J.I.: The principal question which this appeal by special have raises for our decision relates to the construction of Article 192 of the Constitution. The sais question arises in this way. The appellant Brundaban Nayak was elected to the Legislative Assembly of . Orissa from the Hinjili constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State. On August 18, 1964, respondent No. 2, P. Biswal, applies to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Article 191(1)(e) of the Constitution read with Section of the Representation of the People Act, 1951(No.43 of 1951) (hereinafter called the Act. In his application, respondent No. 2 made several allegations in support of his contention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly. On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint to respondent No. 1, the Election Commission of India, under the instructions of the Governor. In this communication the Chief Secretary stated that a question had arisen under Article 19(1) of the Constitution whether the member in question had been subject to the disqualification alleged by respondent No. 2, and so, he requested respondent No. 1 in the name of the Governor to make such enquiries as it thinks fit and give its opinion for communication to the Governor to enable him to give a decision on the question raised.

2. On November 17, 1964, respondent No. 1 served a notice on the appellant forwarding to him a copy of the letter received by it from respondent No. 2 dated the 4th November, 1964. The notice intimated to the appellant that respondent No, I proposed to enquire in the matter before giving its opinion on the Governor s reference, and, therefore, called upon him to submit on or before the 5th December, 1964, his reply with supporting affidavits and documents, if any. The appellant was also told that the parties would be heard in person or through authorised counsel at 10-30 a.m. on the 8th December, 1964, in the office of respondent No. 1 in New Delhi.

3. On December 1, 1964, the appellant sent a telegram to respondent No. 1 requesting it to adjourn the hearing of the matter. On the same day, he also addressed a registered letter to respondent No. 1 making the same request. Respondent No. 2 objected to the request made by the appellant for adjourning the hearing of the complaint. On December 8, 1964, respondent No. 1 took up this matter for consideration, Respondent No. 2 appeared by his counsel Mr. Chatterjee, but the appellant was absent. Respondent No. 1 took the view that an enquiry of the nature contemplated by Art. 192(2) must be conducted as expeditiously as possible, and so, it was necessary that whatever his other commitments may be, the appellant should arrange to submit at least his statement in reply to the allegations made by respondent No. 2, even if he required some more time for filing affidavits and/or documents in support of his statement. Even so, respondent No. 1 gave the appellant time until the 2nd January, 1965, 1030 am, when it ordered that the matter would be heard.

4. On January 2, 1965, the appellant appeared by his counsel Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee. On this occasion. Mr. Patnaik raised the question about the maintainability of the proceedings before respondent No. 1 and its competence to hold the enquiry. Mr. Chatterjee repelled Mr. Patnaik s contention. Respondent No. 1 overruled Mr. Patnaik s contention and recorded its conclusion that it was competent to hold the enquiry under Art. 192 (2). Mr. Patnaik then asked for adjournment and made it clear that he was making the motion for adjuournment without submitting to the jurisdiction of respondent No. I. In view of the attitude adopted by Mr. Patnaik, respondent No. 1