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1967 Supreme(Mad) 182
Madras High Court
SRINIVASAN,RAMAKRISHNAN
R.Sivasankara Mehta - Appellant
Versus
Election Commission of India represented by the Chief of Electoral Officer, Madras - Respondent
Decided On : 04/21/1967
V.P. Raman for K.A. Panchapakesan and S.R. Srinivasan, for Appellant; Advocate General for Government Pleader, for Respondent.
The decision of the Governor on the question of disqualification of a member of the Legislative Council under Art. 192(1) of the Constitution is final and cannot be reviewed by the court.
Headnote:
CONSTITUTIONAL LAW - DISQUALIFICATION OF MEMBER OF LEGISLATIVE COUNCIL - ADJUDICATION AS INSOLVENT - SCOPE OF ART. 192(1) AND (2) OF THE CONSTITUTION - DECISION OF GOVERNOR FINAL - OPINION OF ELECTION COMMISSION DECISIVE - OPPORTUNITY TO SHOW CAUSE TO BE GIVEN BY ELECTION COMMISSION.
Fact of the Case:
The appellant, a member of the Madras Legislative Council, was adjudicated as insolvent on 26-4-1966. He filed an appeal against the adjudication and obtained interim relief from the appellate court. The Chairman of the Madras Legislative Council referred the question of disqualification of the appellant to the Governor under Art. 192(1) of the Constitution. The Governor, after obtaining the opinion of the Election Commission, declared the appellant's seat vacant under Art. 190(3) of the Constitution.
Finding of the Court:
The court held 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. The court further held that 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.
Issues: 1. Whether the court has jurisdiction to review the decision of the Governor on the question of disqualification of a member of the Legislative Council under Art. 192(1) of the Constitution? 2. Whether the appellant was given a proper opportunity to show cause against the alleged disqualification?
Ratio Decidendi: 1. The court held 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. The court relied on the decision of the Supreme Court in Jyoti Prakash Mitter v. Chief Justice. Calcutta High Court, AIR 1965 SC 961, which held that the jurisdiction conferred under Art. 217(3) of the Constitution on the President to deal with a question arising under Art. 217(1) is an exclusive one and it is not open to the court in writ proceedings to exercise jurisdiction to deal with that question. 2. The court held that 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. The court relied on the decision of the Supreme Court in Brundavan v. Election Commission of India, AIR 1965 SC 1892, which held 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.
Final Decision: The court dismissed the writ appeal.
RAMAKRISHNAN, J. :- 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 adjudicated 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 orders is that while certain reliefs were given to Sri Mehta, the adjudication as such was not suspended or staved 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 ejections, 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 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 rel
