M. N. CHANDURKAR

Question raised in this appeal though rather unusual is a very substantial one and question is whether even when the High is satisfied that a person who does not the basic constitutional and statutory qualification for being elected as a of the Legislative Assembly, the High a powerless to prevent him from performing his functions as a member of the Legislative Assembly only on the ground that no one has chosen to challenge his election to the Legislative assembly by filing an election petition under S.80 of the Representation of the People Act, 1951 (hereinafter referred as the Act).

2. General elections to the Legislative Assembly in Tamil Nadu took place in December, 1984. The respondent 1 filed his nomination paper for election as a Member of the Legislative Assembly from 159 Lalgidi Assembly Constituency. On, 27-11-1984, the proposer has stated in the nomination paper that the first respondent's name has been entered at S. No. 120 in part 9 of the electoral roll for the Lalgudi Assembly Constituency. In all, there are four nomination papers filed and in all these papers while setting out the particulars of the first respondent as given in the electoral roll for the Lalgudi Assembly Constituency his serial number in the roll is given as 120. The first respondent has assented to all these nominations. These nomination forms are in form 2B under R.4 of the Conduct of Elections Rules, 1961 (hereinafter referred to as the Rules). The first respondent has made a solemn declaration assenting to his nomination as an elector. Thus, the first respondent by assenting to his nomination'as the above mentioned candidate' proceeded to stand for the election as an elector whose name is at serial number 120 in the electoral roll for the Lalgudi Assembly Constituency.

3. In the 1984 electoral roll for 159 Lalgudi Assembly Constituency; which is the relevant electoral roll serial numbers 118, 119 and 120 show the following names at door No. 38 in M. Kannanur village :

Sl. No. 118 - Pethu

Sl. No. 119 - Sellammal (wife of Pethu)

Sl. No. 120 - Venkatachalam (son of Pethu)

In the nomination paper the name of the respondent 1, was stated as'Venkatachalam'. His father's name was stated as'Pethu alias Krishnaswami'. The postal address was given as'M. Kannanur, Lalgudi taluk, Tiruchi dist.' His nomination paper was accepted. The original fire of the nomination paper shows that the respondent 1 was sponsored by the All India Congress Committee and the official symbol of'hand' of the said party was allotted to him. At the election held, respondent 1 was elected as a member of the Legislative Assembly. The election of respondent 1 was not challenged by any voter or candidate by election petition

4. On 22-11-1985 the petitioner, who was a candidate for the election but was defeated, ever filed a petition under Art.226 of the Constitution alleging that the name of the respondent l is not to be found as a voter in the electoral roll for the general elections for any Assembly constituency. This according to the petitioner, was apparently for the reason that he had left his native place Kannanur long back along with his wife after taking a job in Cholan Transport. Corporation at Tiruchi and was residing permanently, at No. S/D Mohana Vilas, Mambazha Salai, Srirangam, Trichi. Getting suspicious as to how the respondent 1 stood for the election without his name being included in any assembly constituency, the petitioner came to Court initially alleging that there was one person Venkatachalam by name, whose name in the electoral roll was at serial number 739 and who lived in 61-B, South Street, Malvoy village with his mother Meenakshi, who was the wife of Krishnaswami who is no more. The name of the said Venkatachalam's wife was said to be Vijaya whose name was at serial number 740. The petitioner became doubtful because the name of the first respondent's wife was Jayanthi. The person by name Venkatachalam was an agriculturist who had stu