Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For the Appellant: Manual T. Paikaday, Advocate.
  • For the Respondent: T. N. Subramania Iyer, Advocate.
Judges
  • Govinda Pillai, J.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • For the Appellant: Manual T. Paikaday, Advocate.
  • For the Respondent: T. N. Subramania Iyer, Advocate.
Judges
  • Govinda Pillai, J.
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, Sri A. Nesamony (Advocate and Member of the Legislative Assembly of Travancore-Cochin), petitioned the Court for a rule against the counter-petitioner, Sri T.M. Verghese (the Speaker of the Travancore-Cochin Legislative Assembly), to show cause why an information in the nature of quo warranto should not be filed to determine the authority under which he held the office of Speaker. The petitioner alleged that, although the counter-petitioner had been lawfully elected Speaker under the Travancore-Cochin Covenant and related Ordinances before 26 January 1950, the commencement of the Constitution of India (26-1-1950) left no constitutional provision (specifically in Article 385) that permitted automatic continuance of the Speaker in Part B States, and therefore the counter-petitioner had been occupying the Speaker's office without authority since that date and had exercised its powers on dates including 6-3-1950.

Procedurally, notice was given to the counter-petitioner and to the Advocate-General (for the State). The counter-petitioner's counsel accepted the facts pleaded in the petition and did not file a reply but advanced a preliminary objection on locus (standing). The Court heard the preliminary objection and, after considering arguments and statutory and constitutional provisions (and related adaptation orders and prior orders made by the President), overruled the preliminary objection, proceeded to the merits, and ultimately discharged the rule and dismissed the petition with costs (advocate's fee assessed at Rs. 100).

Legal Issues Presented

  1. Whether the petitioner (a member of the Travancore-Cochin Legislative Assembly) had the requisite interest or locus to maintain a petition seeking a rule to enquire, by way of quo warranto, into the authority by which the counter-petitioner occupied the office of Speaker.
  2. Whether, on and after the commencement of the Constitution of India (26-1-1950), the counter-petitioner continued to hold the office of Speaker of the Travancore-Cochin Legislative Assembly with lawful authority, in particular whether Article 385 (which governs Part B States) permitted the automatic continuance of the office of Speaker.
  3. How constitutional provisions (Articles 379, 382, 385, 372 and related orders like the Adaptation of Laws Order 1950 and presidential orders) and pre-constitutional enactments or instruments (the Travancore-Cochin Covenant and Ordinances 3 and 8 of 1124) bear upon the continuity of the legislative body and its officers in a Part B State.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner alleged that Article 385 of the Constitution (governing Part B States) did not provide for the ipso facto continuance of the person holding the office of Speaker immediately before the commencement of the Constitution; unlike Clause 3 of Article 382 in respect of Part A States, Article 385 contains no provision continuing the Speaker.
  • Accordingly, the petitioner contended that from 26-1-1950 the counter-petitioner had no constitutional right or authority to act as Speaker, and that the counter-petitioner’s continued occupation and exercise of the Speaker’s powers amounted to an illegal usurpation of a substantive public office.
  • The petitioner pleaded that he was a member of the Assembly and leader of a party therein, and thus had a vested interest in challenging the Speaker’s authority.

Counter-petitioner / State Arguments

  • A preliminary objection was raised that the petitioner lacked the requisite interest (locus) to maintain the rule; counsel relied on authorities (In re Abdul Rasul, 41 Cal 518; J.M. Sengupta v. H.E.A. Cotton, 51 Cal 874) and principles under Section 45 of the Specific Relief Act that a person claiming a writ of mandamus must be specially interested and must have made a demand that was refused before seeking relief.
  • The counter-petitioner (and Advocate-General) argued that insofar as officers existing before 26-1-1950 were concerned, they should be allowed to continue in office; therefore the Speaker, as an officer of the Legislature, would continue to hold office automatically even absent a specific provision in Article 385.
  • The Advocate-General relied on Article 375 (continuance of functions of judicial, executive and ministerial officers) as a general saving provision to support continuation of existing officers.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
In re Abdul Rasul, 41 Cal 518 Cited for the proposition that an applicant for a writ (in that context mandamus) must have a special interest and that mandamus requires a prior demand for performance and refusal. The Court observed this authority related to mandamus and held that the rulings invoked by the counter-petitioner on mandamus were not directly applicable to a private relator seeking an information in the nature of quo warranto. The Court therefore distinguished these authorities from the present case.
J.M. Sengupta v. H.E.A. Cotton, 51 Cal 874 Relied on similar principles under Section 45 of the Specific Relief Act concerning locus in mandamus proceedings. The Court treated this authority as addressing mandamus and noted that the requirements for mandamus differed from those for an information in the nature of quo warranto; the Court therefore found these rulings inapposite to deny the petitioner's competence to bring the present petition.
R. v. Carmarthen Corporation (1759) 2 Burr 869 Authority for the proposition that a private relator may apply for an information (quo warranto) affecting individual titles to office. The Court used this line of authority to show that a private relator (such as a member of the Assembly) may bring an information to question by what authority officeholders claim to act, thereby supporting the petitioner's competence to maintain a quo warranto-type inquiry.
R. v. White (1836) 5 Ad & E 613 Similar principle as to the availability of information by private relators against officeholders to inquire into authority. The Court treated this authority as supportive of the general rule that a private relator can seek an information in the nature of quo warranto and therefore distinguished the counter-petitioner's reliance on mandamus authorities.
R. v. Cassel (1916) 1 KB 595 Held that a private relator may apply for an information in matters concerning public government (e.g., calling upon a Privy Councillor to show authority for membership). The Court cited this decision to reinforce the point that quo warranto can be pursued by a private relator in matters affecting public office and used it to justify allowing the petitioner (an Assembly member) to seek inquiry into the Speaker's authority.

Court's Reasoning and Analysis

The Court proceeded in two main analytical stages: first it considered the preliminary objection on locus and the distinction between mandamus and quo warranto; second it addressed the substantive constitutional and statutory provisions bearing on the continuation of the Speaker's office in a Part B State.

On locus and remedy: The Court accepted that the authorities relied upon by the counter-petitioner (decisions under Section 45 of the Specific Relief Act concerning mandamus) established that mandamus applicants must have a legal right to the performance sought and must normally have made demand and been refused. However, the Court emphasized that an information in the nature of quo warranto is a different remedy and that private relators have historically been permitted to apply by information to inquire by what authority persons claim or occupy public or corporate offices. The Court cited R. v. Carmarthen Corporation, R. v. White and R. v. Cassel to support the proposition that a private relator — and specifically a member of the Assembly — may challenge the Speaker's title to office. Because the counter-petitioner's counsel accepted the facts pleaded in the petition, the Court held that the petitioner, as a member of the Assembly who bona fide believed the Speaker to be without authority, had sufficient competence to bring the petition and therefore overruled the preliminary objection.

On the merits: The Court examined the text and purpose of the Constitution (notably Articles 379, 382 and 385), the historical foundations of the pre-constitutional legislative bodies (the Government of India Act, 1935 and the Indian Independence Act, 1947), and the distinct legal position of Part B States (native/princely States) that were not constituted under the 1935 or 1947 Acts. The Court noted that Articles 379 and 382 contained explicit continuation provisions for the Constituent Assembly/provisional Parliament and for legislatures in Part A States (including express savings for the office of Speaker in some contexts), whereas Article 385 (governing Part B States) used different wording and did not contain a specific clause continuing the office of Speaker.

The Court analyzed the underlying instruments relevant to Travancore-Cochin: the Covenant of 29-5-1949 (which created a Legislature for the United State and provided for members to become members of the new Assembly), and Ordinances (Ordinance No. 3 of 1124 and Ordinance No. 8 of 1124) that provided for the election and status of the Speaker and the continuation of the Assembly pending further legislation. It accepted the petition's admission that the counter-petitioner had been validly elected Speaker under those ordinances and validly held office up to 26-1-1950.

The Court then turned to Article 372(1) and the Adaptation of Laws Order, 1950 (specifically the definition of "existing State laws" and the saving and adaptation provisions). The Adaptation Order preserved existing State laws in Part B States (subject to adaptations) and provided (in the supplementary provisions) that powers vested in persons or authorities immediately before the appointed day would continue to be vested unless otherwise provided. Because the legislation and ordinances that created the Travancore-Cochin Assembly and provided for the Speaker were not swept away by the repeal of the 1935/1947 Acts (which had principally affected Part A bodies), the Court read the constitutional framework and adaptation orders to allow the continuation of the existing State law and, with it, the legislative assembly and its Speaker.

The Court rejected the Advocate-General's reliance on Article 375 as inapplicable, noting that Article 375 referred to courts and officers of the judicial, executive and ministerial departments and did not explicitly include legislative officers. The Court also observed that the framing of the Constitution and subsequent Removal of Difficulties Order No. 11 of 1950 showed that the Speaker was to be regarded as an officer of the Legislature and that there were provisions indicating a Speaker could continue to hold office in particular circumstances (for example, until the next Assembly began to function), supporting the view that the absence of an express continuance clause in Article 385 did not ipso facto terminate the Speaker's office.

On this textual, historical and purposive basis, the Court concluded that the absence of an express provision in Article 385 for the continuance of the Speaker's office in Part B States did not, in the present circumstances, deprive the counter-petitioner of lawful authority to continue in office. The Court therefore found no ground to sustain the rule and discharged it.

Holding and Implications

Holding:

The rule is discharged and the petition is dismissed.

The Court ordered costs and assessed the advocate's fee at Rs. 100.

Implications:

  • Direct effect on the parties: The counter-petitioner was permitted to continue in office as Speaker; the petition challenging his authority was dismissed and the rule seeking a quo warranto inquiry was discharged. The petitioner’s challenge therefore failed in this proceeding.
  • Broader implications: The opinion resolves the specific dispute by reference to the text of the Constitution, the historical origin of the Travancore-Cochin legislative instruments and the Adaptation of Laws Order 1950. The opinion does not purport to announce or describe any general new precedent beyond its application to the facts and legal materials before the Court.

Note: This summary is compiled exclusively from the content of the provided opinion and does not add or infer facts not present in that text.

Show full summary ...

    A. Nesamony v. T.M Varghese And Another (State) Counter Petitioners.

    1. The petitioner Sri A. Nesamony, Advocate & Member of the Legislative Assembly of the Travancore-Cochin State has filed this petition to issue a rule upon the counter-petitioner Sri T.M Verghese holding the office of the Speaker of the said Assembly to show cause why an information in the nature a ‘quo warranto’ regarding the right under which he was holding this office should not be filed. If after hearing the petition the Court came to the conclusion that the counter-petitioner was holding his office as Speaker without any right or authority under law as provided for in the Constitution of India then it was prayed to declare the said office vacant & to pass consequential orders. The petitioner stated as follows:

    The body functioning immediately before the Constitution of India, as the Legislative Assembly of the Travancore-Cochin State, was the Legislative; Assembly constituted under the Covenant entered, into by the Rulers of Travancore & Cochin under date 29-5-1949. The person holding office as speaker of that Assembly was the counter-petitioner who-was a member thereof & elected to the said office by that assembly. He was accordingly exercising the power of Speaker till immediately before the commencement of the Constitution. On the commencement of the Constitution on 26-1-1950, the said Assembly had been empowered by Article 385 of the Constitution to exercise the powers & perform the duties of the House of Legislature for the State until certain specified contingencies happened. Although the said Assembly had been allowed to continue under the Constitution, the person holding the office immediately before the commencement of the Constitution as President of the said Assembly had not by any provision of the Constitution been allowed ipso facto to be Speaker of the House of Legislature unlike as it was expressly provided for in Clause 3 of Article 382 of the Constitution in respect of the Legislatures functioning in the States in Para. A, Schedule 1 of the Constitution. According to the petitioner, therefore, on or from 26-1-1950, the counter-petitioner had no right or authority to be the Speaker of the Legislative Assembly of the Travancore-Cochin State under the Constitution. Nevertheless, the counter-petitioner had since the said date occupied & continues to occupy the Speaker's Chair & had exercised & still exercises the powers of the Speaker, more particularly on 6-3-1950 & subsequent dates when the assembly had been in session. This conduct on the part of the counter-petitioner was an illegal usurpation of a substantive, independent, public office in which the petitioner & all the citizens of this State were vitally interested inasmuch as it obviously had considerable effect & influence upon the rights & interests of the people & the general, well-being of the State. It is on these allegations that the rule mentioned above was sought to be issued. Subsequently the petitioner had filed an affidavit to show that he was a member of the Legislative Assembly of the State & the leader of the Tamil Nad Congress Party therein.

    2. Since no rules had been framed so far to regulate the procedure to be adopted in motions of this kind, the rules framed by the Supreme Court adopting certain procedure to deal with such matters were accepted as guidance in regard to this petition. Under O. 35, Rr. 6 to 9, Supreme Court Rules, notice of this motion had to be given to the parties affected, as a matter of course. Notice was accordingly ordered to be given to the counter-petitioner. As it was considered proper to hear the State also in addition to the counter-petitioner notice of the petition was given to the Advocate-General on behalf of the State. In answer to the notice, the Advocate-General on behalf of the State & on behalf of the counter-petitioner appeared to oppose this petition. As is the usual practice no reply was filed by the counter-petitioner & his Advocate stated that he was prepared to argue on the merits of the petition accepting the statement of facts in the petition as correct. It has therefore to be taken that all the averments of facts made in the petition are correct & the argument proceeded on that basis.

    3. A preliminary objection was taken by the learned Advocate for the counter-petitioner that this petition was incompetent, as a person who had an interest in the subject-matter of the dispute alone could move for a rule of this nature & that the petitioner had no such interest. He stated that a defeated candidate in an election for the Speaker's place or a candidate holding some such interest could alone file a petition of this kind. The question of election did not arise in this case, for the petitioner's case itself was that while there should be an election to fill up the Speaker's place, the counter-petitioner was usurping that place without election & without authority. The learned Advocate for the counter-petitioner relied on ‘In re Abdul Rasul’, 41 Cal 518 & in the matter of ‘J.M Sengupta v. H.E.A Cotton’, 51 Cal 874 in support of the position that a person who was really affected could alone file a petition for a writ in the nature of mandamus. These two cases arose under Section 45 of the Specific Relief Act, I of 1877, & the petitions in those cases, if allowed, would have enabled the Court to issue a writ in the form of mandamus. A writ of mandamus is a peremptory order of the Court commanding somebody to do that which it was his clear legal duty to do. In such cases the applicant must have a legal right to the performance of such duty by the party against whom he made the application. He must, however, had made a demand for its performance & compliance must have been refused before the writ would be issued.

    4. On the other hand, an information in the nature of ‘quo warranto’ lay against a person who claimed or usurped an office, franchise or liberty to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined. The two kinds of writs vary considerably in the remedy that could be allowed & in the operation of the same. As was held in ‘R. v. Carmarthen Corporation’, (1759) 2 Burr 869 and ‘R. v. White’, (1836) 5 Ad & E 613, a private relator may apply for an information against the several members of a corporation on grounds affecting their individual titles to show by what authority they respectively claimed to exercise their individual functions. In ‘R. v. Cassel’, (1916) 1 KB 595, it had been held that a private relator may apply for an information in cases which concerned the public Govt. & accordingly an information may be sought by a private relator against a Privy Councillor calling upon to show cause by what authority he claims to be a member of the Privy Council, it would therefore be seen that the rulings cited by the counter-petitioner will not apply to the facts of this case. The petitioner is a member of the Assembly of which the counter-petitioner is said to be the Speaker. Apart from his right as a citizen, to see that the Legislature acts & transacts properly, he as a member of that Legislative Body has every right to know by what authority the Speaker functions if he bona fide thinks that the Speaker holds the office without authority. He is therefore one competent to file this petition & I overrule the preliminary objection.

    5. Coming to the merits of the averments in the petition, it is the petitioner's case, that while provision had been made in Article 382 in the Constitution of India for the continuance of the Speaker of the Legislative Assembly in Part A States as a Speaker of the Legislature that is to function under the provision of the Constitution, there was no corresponding provision in Article 385 in regard to the office of the Speaker in the Legislature of Part B States. He referred to Articles 379, 382 & 385 of the Constitution. In Article 379(1) provision is made for the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution to be the provisional Parliament & to exercise all the powers & perform all the duties conferred by the provisions of this Constitution of Parliament. In Clause 5 of that Article it was provided that any person holding office immediately before the commencement of the Constitution as Speaker of the Constituent Assembly when functioning as the Dominion Legislature under the Govt. of India Act, 1935, was to be the Speaker on such commencement of the provisional Parliament functioning under Cl. (1). Corresponding provisions had been made in Cls. 1 & 3 of Article 382 for the continuance of the House or Houses of Legislature of each State specified in Part A of Sch. 1 & the Speaker thereof. When we come to Article 385 which makes provision for the continuance of the Legislatures in States in Part B of Sch. 1 the wording is entirely different. Article 385 runs thus:

    “Until the House or Houses of the Legislature of a State specified in Part B of Sch. 1 has or have been duly constituted & summoned to meet for the first Session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers & perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified.”

    6. The Travancore-Cochin State is a State mentioned in Part B of Sch. I, so that it is this Article that governs this State.

    7. At first sight it would appear that the Legislature made an intentional deviation from the provisions relating to the provisional Parliament & Legislatures of Part A States, when dealing with the Legislatures of Part B States. As observed at p. 118, in “Black on Interpretation of Laws” Edn. 11.

    “The mind of the Legislature is presumed to be consistent; & in case of a doubtful or ambiguous expression of its will, such a construction should be adopted as will make all provisions of the Statute consistent with each other & with the pre-existing body of law.”

    8. In Maxwell on “Interpretation of Statutes” Edn. 9 at p. 163 it was stated as follows:

    “An author must be supported to be consistent with himself, &, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the Legislature is treated in the same manner as that of any other author & the language of every enactment must be constructed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal. The law, therefore, will not allow the revocation or alteration of a Statute by construction when the words may be “capable of proper operation without it. It cannot be assumed that Parliament has given with one hand what it has taken away with another.”

    9. Thus the absence of a provision in Article 385 for continuance of the office of the Speaker in the Legislative Body of Part B States could be taken to have been intentional on the part of the Legislature if we do not look into the circumstances under which the Constitution itself was evolved.

    10. The Constituent Assembly had its existence by virtue of Section 8 of the Indian Independence Act, 1947. The Legislatures in Part A States which were originally known as Provinces had been constituted under Section 18 of the Govt. of India Act 1935. These two Acts were therefore the foundation for the Legislative bodies that existed before the Constitution came into force & which are referred in Articles 379 & 382, Constitution of India. These two Acts of 1935 & 1947 were repealed by Article 395 of the Constitution. Thus, in order to continue the Legislative Bodies formed under these two repealed statutes definite & specific provisions had to be made in the Constitution itself. The Legislatures relating to Part B States which were originally called Native or Princely States were not governed by either of the two Acts mentioned above. The Govt. of India Act of 1935 would have applied to the Indian States only if they had acceded to the Federation envisaged in that Act. These States had not joined he federation & so they had their own Legislative bodies or authorities to pass the necessary law for them. Thus the Part B States stood on an entirely different footing from the Part A States.

    11. The States of Travancore & Cochin had their separate Legislatures. These two States were integrated by a covenant entered into by the Rulers of the two States & concurred in & guaranteed by the Govt. of India. In Article 10 of that Covenant it was provided that there shall be a Legislature for the United State consisting of the Raj Pramukh & the Legislative Assembly. It was further provided that all persons who immediately before the appointed day, i.e, 1-7-1949 are members of the Representative Body of Travancore or the Legislative Assembly of Cochin, shall, on that day become members of the Legislative Assembly of the United State. Article 11 gave powers to the Raj Pramukh of the United State to make & promulgate Ordinances for the peace & good Government of the United State or any part thereof. Ordinance No. 3 of 1124 was accordingly promulgated to regulate & control the Travancore & Cochin Legislative Assembly. Ss. 5 to 9 provided for the election of the Speaker to this Assembly. Another Ordinance 8 of 1124, was promulgated to make temporary provisions for the working of the Assembly & for certain matters consequential & incidental thereto until other provisions were made by the Legislature. The Speaker elected under Ordinance 3 of 1124 was to be declared the first Speaker of the Assembly. Cl. (c) of S. 6 mentions the contingencies under which the member holding the office as Speaker shall vacate his office. The Speaker could vacate his office only by his ceasing to be a member of the Assembly by resignation, or by removal for want of confidence by a resolution of the Assembly passed by a majority of all the then members. As seen from the petition, the counter-petitioner had been elected as Speaker under Ordinance 3 of 1124 & he continued to hold that office by virtue of the provisions in Ordinance 8 of 1124. It was also admitted in the petition that his holding office as a Speaker till 26-1-1950 was legal & valid. The body or authority functioning immediately before the commencement of the Constitution as the Legislature of the State was the Legislative Assembly created by Covenant & continued by Ordinances 3 & 8 of 1124. It is this Legislature that is referred to in Article 385 of the Constitution as the body or authority functioning as the Legislature in the State.

    12. By Article 372(1) of the Constitution explained & amplified by Adaptation of Laws Order 1950, the existing laws in Part B States were allowed to continue. Existing law referred to in Article 372 is defined in S. 2(1) of this Order. It is divided under three categories; existing Central Laws, existing Provincial Laws & existing State Laws. Cl. D of S. 2(1) defined existing State laws to mean an Act, Ordinance or other legislative enactment by whatever name called which immediately before the appointed day was a law in force in an Indian State corresponding to the whole or any part of a B State & was passed by the Legislature or other competent authority of such an Indian State, or was made under the Extra Provincial Jurisdiction Act of 1947 & includes any rule, Order, Bye-law or other instrument so in force which was made under any such Act, Ordinance or legislative enactment. Ss. 18 to 21 provide for the adaptations of the existing State laws. In the supplementary provision contained in S. 22, it was laid down as follows:

    “Save as is otherwise provided by this Order all powers which under any law in force in India or any part thereof were immediately before the appointed day vested in or exercisable by any person or authority shall be continued to be so vested or exerciseable under other provision is made by some Legislature or authority empowered to regulate the matter in question.”

    13. So far as the Ordinance which enabled the formation of the legislative Assembly of the Travancore-Cochin State, no modification had been made in the adaptation of the laws Order or to any of the Orders passed by the President of the Republic of India under Cl. 2 of Article 372, or Cl. 1 of Article 392, Constitution of India. In the case of the Central Parliament & the Legislatures in Part A States, the parent Bodies were those which came into existence on the authority of the Govt. of India Act of 1935 & the Indian Independence Act of 1947. When these two were repealed they were no longer in force & they too do not come under the definition of existing law defined in S. 2, Adaptation of Laws Order 1950. There is thus the difference between the Legislatures allowed to function in Part A States & those in Part B States. There was therefore the necessity to provide for the continuance of the Houses of the Legislature & the officers therein with all their paraphernalia in Part A States whereas no such necessity existed in the case of the Legislatures in Part B States. The old order in Part B States was therefore allowed to continue except as modified by the Constitution of India. Thus, by the provision in Article 385, until the House or Houses of the Legislature of a State specified in Part B of Schedule I, has or have been duly constituted, the present Legislature is allowed to continue. In construing a Statute it is not reasonable to presume that the Legislature intended to violate settled principles of natural justice or to destroy a vested right unless words or expressions indicating the contrary do in clear terms appear in the new Statute. Thus since the existing State law was allowed to continue, the Legislative Assembly constituted under such law & the Speaker elected as provided for in that law will continue to function & since there is nothing in the Constitution of India to indicate that these old orders were not allowed to continue, the contention that the Speaker vacated his office from the date on which the Constitution of India came into effect could not be accepted.

    14. An argument was advanced on behalf of the counter-petitioner that all officers in existence be-before 26-1-1950, should be allowed to continue & the Speaker being an officer of the Legislature would continue to hold office automatically without any specific provision of the same. There can be no doubt that the Speaker is an officer of the Legislature though he should necessarily be a member of the Legislative Assembly to get himself elected. As a Speaker he has a special status and separate existence apart from the Assembly over which he presides. Though the Constitution (Removal of Difficulties) Order No. 11 of 1950 kept in abeyance Proviso 2 to Article 178, & Articles 8, 9 & 94 of the Constitution and substituted Part I of Article 178 the framing of the Constitution will show that the Speaker is an officer of the Legislature & that even if the Assembly is dissolved he can continue in office until the next Assembly begins to function.

    15. The duties of the Speaker as in the case of the Speaker of the House of Commons are as various as they are important. He presides over the deliberations of the House, & enforces the observance of all rules for preserving order in its proceedings, he puts every question & declares the determination of the House. As “mouth of the House” he communicates its resolutions to others, conveys its thanks & expresses its censure, its reprimands or its admonitions. He is, in fact, the representative of the House itself, in its powers, its proceedings & its dignity. See p. 177 of Sir T. Erskine May's Parliamentary Practice, Edn. 12. Thus the Speaker is an officer of the Legislature but to me it would appear that he will not come under the category of the officers mentioned in Article 375 of the Constitution relied upon by the Advocate-General. Article 375 reads as follows:

    “All Courts of civil, criminal & revenue jurisdiction, all authorities & all officers, judicial, executive & ministerial throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of this Constitution.”

    16. It refers only to authorities & officers of judicial executive & ministerial departments & not to those of the Legislatures. I could not therefore accept this argument.

    17. After a careful consideration of the several provisions of the Constitution of India & the subsequent orders passed by the President by virtue of the powers vested to him under the provisions of the Constitution, it does not appear to me that the absence of a provision in Article 385, Constitution of India for the continuance of the Speaker of he Legislative Assembly of Travancore-Cochin State would in any way affect his continuance as such. The provisions relating to the same in Articles 379 & 382 were necessitated because of the repeal of the Acts of 1935 & 1947 referred to already. I do not therefore find any ground to confirm the rule issued. It is therefore discharged and this petition is dismissed with costs. Advocate's fee will be assessed at Rs. 100/- (One hundred.)

    18. Petition dismissed.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    A. Nesamony v. T.M Varghese And Another (State) Counter Petitioners.
    (Jun 27, 1950)