Back
2019 Supreme(Mad) 1495
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. Parthiban, J.
P. Veldurai, Ex. M.L.A. - Appellant
Versus
Tamil Nadu Legislative Assembly Secretariat, Rep. by its Secretary, Chennai & Others - Respondent
W.P. No. 30102 of 2011 & M.P. No. 1 of 2011
Decided On : 26-02-2019
For the Petitioner:P.L. Narayanan, Advocate.
For the Respondents: S.R. Rajagopal, AAG, assisted by J. Pothiraj, Spl. G.P.
Headnote:
Constitution of India - Article 226 - RP Act – Section 9-A - Representation of Peoples Act, 1951 - Records on file - Declared as illegal null and void - Petitioner was a former Member of Legislative Assembly representing Indian National congress and was elected to Tamil Nadu Legislative Assembly during Legislative Assembly Elections held during notification was issued for Tamil Nadu Legislative Assembly Election which was scheduled to be held - Nominations commenced and last date for filing of nomination was scrutiny was slated petitioner representing Indian National Congress filed his nomination - Along with petitioner other persons had also filed their nominations – Held, In view of above narrative and on a combined consideration of provisions of RP Act, 1951 and Article 193 of Constitution and decisions of Allahabad High Court in case and Hobble Supreme Court in Rams case this Court is of considered view that Member of House himself ought not to have questioned order seeking refund of emoluments paid to him - To question the order as if he was a government employee on a salary and having been dismissed from service and seeking to protect salaries paid to him for services rendered does not augur well for the status and reputation of those seeking to become a member of House a constitutional position to serve cause of people - For aforementioned reasons this Court does not see merit in this case - Member of House has a duty to refund emoluments received by him as he has been visited with consequence of disqualification which has become final - As held by Patna High Court in Rita case an employee after removal cannot seek to enforce a mandamus to seek emoluments equally it falls within logic to suggest that a Member of House cannot refuse to refund emoluments when he has been disqualified - Retention of emoluments with a Member of House now disqualified may not behave well for stature and reputation of those who enter electoral field to serve cause of people – Petition dismissed
JUDGMENT :
(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying this Court to issue a writ of certiorari to call for the records on the file of the 1st respondent in Letter No.8032/2011-2, TNLAS (T.A.III) dated 22.8.2001 and quash the same.)
1. The present writ petition has been filed for issuance of a writ of certiorari to call for the records on the file of the 1st respondent in Letter No.8032/2011-2, TNLAS (T.A.III) dated 22.8.2001 and quash the same.
2. The facts and circumstances necessitating the filing of the present writ petition are as hereunder :-
The petitioner was a former Member of the Legislative Assembly (for short 'MLA') representing the Indian National congress and was elected to the Tamil Nadu Legislative Assembly during the 13th Legislative Assembly Elections held during the year 2006. On 3.3.06, notification was issued for the 13th Tamil Nadu Legislative Assembly Election, which was scheduled to be held on 8.5.06. Nominations commenced from 13.4.06 and the last date for filing of nomination was 20.4.06. The scrutiny was slated on 21.4.06. The petitioner, representing the Indian National Congress, filed his nomination on 17.4.06. Along with the petitioner, 8 other persons had also filed their nominations.
3. The petitioner, at the relevant point of time was a registered contractor with the Highways Department, Government of Tamil Nadu. Since he had chosen to contest the Assembly Election, his continuance as a registered contractor with the Government of Tamil Nadu would entail disqualification under the provisions of the Representation of Peoples Act, 1951 (for short 'RP Act'), he submitted a representation to the Superintending Engineer, Public Works Department, Project Circle, Madurai, to remove his name from the list of registered contractors maintained by him and terminate his contract forthwith. Based on the request of the petitioner, the Superintending Engineer removed the name of the petitioner from the list of registered contractors by his letter dated 12.4.06. However, on 17.4.06, the Superintending engineer addressed another letter to the petitioner advising him to take steps to cancel all pending works from the respective Division, wherever contract was in force.
4. On the basis of the advice given by the Superintending Engineer, the petitioner addressed a letter to the Divisional Engineer, Nagercoil, on 17.4.06, to terminate his contract in respect of the work, which came under the control of the said Divisional Engineer as that work alone was in progress at that point of time. The petitioner had also identified the alternative contractor to do the balance work as required under G.O. Ms. No.4682 dated 16.11.1951 and the alternative contractor, identified by the petitioner, also accepted to complete the work originally contracted to the petitioner. Ultimately, the contract of the petitioner came to be terminated and the same was also ratified by the Superintending engineer on 26.04.06.
5. While the matter stood thus, one of the candidates, who filed nomination along with the petitioner had filed an objection regarding the qualification of the petitioner on the ground that he was a Government contractor. However, the objection was overruled by the 2nd respondent. In the meanwhile, the petitioner got elected as a member of the 13th Legislative Assembly from Cheranmadevi Assembly Constituency in the election held on 8.5.06 and the results were declared on 11.5.06. Thereafter, he served as MLA from 2006 and completed his term for a period of five years till 2011.
6. One of the defeated candidates in the constituency, where the petitioner was elected eventually, had filed an election petition, E.P. No.2/06 before this Court seeking to set aside the election of the petitioner on the ground that he suffered disqualification u/s 9-A of the RP Act. The ground on which the petition was filed inter alia that the contract of the petitioner was not terminated as per G.O. Ms. No.4682 date
