Narain Singh v. Chief Commissioner, Ajmer And Others

B.N. Nigam, J.C.

1. This is a writ petition filed by Shri Narain Singh, a Member of the Ajmer State Legislative Assembly, praying for a writ of mandamus or order in the same nature directing opposite parties to conform to the law and to obey the petitioner as the duly elected Speaker of the Ajmer State Legislative Assembly and for such further and other relief as may be appropriate in the circumstances of the case.

2. The petitioner urges that the previous Speaker of the Assembly resigned on or about 19-9-1954. The Chief Commissioner summoned the Assembly to meet on 11-10-1954 and under R. 5 of the Rules of Procedure applicable to the said Assembly fixed 13-10-1954 for the holding of the election. This fact was duly communicated to all the members including respondent 3. The petitioner filed his nomination paper at 11-30 a.m. on 12-10-1954. No other nomination paper having been filed by noon of 12-10-1954, the right to the office of the Speaker became vested in the petitioner, but the Chief Commissioner on 11-10-1954 is purported to have cancelled his previous communication fixing 13-10-1954 for election and is alleged to have fixed 1.5-10-1954 instead. A communication was received by the petitioner on the evening of 11-10-1954. This was signed by the Assistant Secretary and the petitioner did not believe its validity or authenticity. The petitioner has reason to believe that the Congress Party which was the majority party in the State Legislature having been unable to decide upon a single candidate for the office of the Speaker, the voting in the election, if held on 13-10-1954, would have been without the party mandate. In these circumstances, the members of the Congress party were interested in getting the election postponed and respondent 1 presumably altered the date of the election at the instance of the ministers to the prejudice of the petitioner. That on 13-10-1954 respondent 3 who was presiding was requested to act in accordance with R. 5 of the Business Rules and to declare the petitioner as the duly elected Speaker, but he refused to do so. He also refused to comply with the orders of the petitioner. Respondent 2 also refused to take orders from the petitioner.

This respondent 3 submitted a purported nomination paper about the noon of 14-10-1954. That in order to avoid a dead-lock, the petitioner adjourned the Assembly sine die with effect from 3 p.m. on 15-10-1954, but despite this order certain members of the Assembly proceeded to hold a ballot at winch respondent 3 was declared elected. That respondent 3 claimed to have resigned from the office of the Deputy Speaker by tendering his resignation to one Shri Jagan Nath Sharma, another member of the Legislative Assembly sometime before the ballot was held. It is urged that respondent 1 had the duty under the law to fix one date for the election and was not authorised to make a change to the prejudice of the petitioner and to the benefit of the Congress party as he became functus officio. That this purported alteration of the date was not bona fide.

That the communication by Shri B.N. Mathur was not in accordance with R. 5 and, therefore, the first communication fixing 13-10-1954 was the only valid and subsisting communication under the rules. That respondent 3 was under the legal obligation on 13-10-1954 to declare the petitioner as duly elected. Such omission was deliberate and in the eye of law, the petitioner stood declared Speaker of the State Assembly. That alternatively, if the election was legally held, respondent 3 being the Deputy Speaker, could not be a candidate for the Speakership and that there being only one valid nomination paper, the petitioner should have been declared Speaker even on 15-10-1954.

3. In the reply it is stated that on representation that 13-10-1954 would not be suitable, the Chief Commissioner, who had full power to do so, fixed 15-10-1954. That on 11-10-1954 the Chief Minister, the leader of the House, under R. 19(2) of the Rules of procedure, stated that the election of the Speaker would be held on 15-10-1954 and that notice of this change was given to all the members including the Ministers and the Deputy Speaker. The Assistant Secretary was performing the duties of the Secretary. In fact, respondent 3 asked Shri Jagan Nath Sharma to preside over the Assembly on 14-10-1954 and respondent 3 tendered his resignation on 14-10-1954 sending one copy to the Speaker and another to the presiding member. Both the copies were received by Shri Jagan Nath Sharma who was performing the duties of the office of the Speaker and had the powers of a Speaker under S. 10(3) of Act 49 of 1951. It was denied that any prejudice was, in fact, caused or could possibly be caused to the petitioner by the change of the date. The election of the Speaker having not been included in the list of business for the 13th, no question in relation thereto could legally be raised. The petitioner was not entitled to assume the role of the Speaker.

Moreover the declaration of the adjournment could not be made except on the floor of the House and by the person actually in the chair. That this Court has no jurisdiction to entertain any writ petition concerning a matter which is solely within the exclusive jurisdiction of the Legislature itself. The question of the election of the Speaker is a matter concerning the internal working and functioning of the Legislature and this Court has no jurisdiction to interfere in the matter as the Legislature is the sole authority to regulate its own business and procedure. That the petition is barred by S. 35 of the Government of Part C States Act, 1951. That the petition is unsustainable inasmuch as none of the grounds mentioned in the petition amounts to infringement of any fundamental rights guaranteed by the Constitution nor is there any infringement of any other right to which the petitioner is entitled.

4. In the petition, I have heard the learned counsel for the petitioner and the learned counsel for the respondents.

5. The first question for my consideration is whether this Court has any jurisdiction. Reliance has been placed on the provisions of S. 35 of Act 49 of 1951. The learned counsel for the petitioner has however urged that Act 49 of 1951 is a creation of the Parliament and cannot override the provisions of Art. 226 of the Constitution. It is pointed out that the provisions of S. 35 cannot oust the jurisdiction of this Court and the authorities dealing with Art. 212 of the Constitution has no applicability. The learned counsel has referred me to - 'Parry and Co. Ltd., Dare House, Madras v. Commercial Employees Association Madras',: AIR 1952 SC 179 (A) and to several other rulings to which I need not make any specific reference. In the Supreme Court ruling it was held that 'it is clear that in spite of such statutory provisions the superior Court is not absolutely deprived of the powers to issue a writ'.

6. In - 'Shankari Prasad Singh v. The Union of India',: AIR 1951 SC 458 (B) it was pointed out:

The Constitution provides for three clauses of amendments of the provisions. First, those that can be effected by a bare majority such as that required for the passing of any ordinary law. The amendments contemplated in Arts. 4, 169 and 240 fall within this class, and they are specifically excluded from the purview of Art. 368....Thus, the power of effecting the first class of amendment is explicitly conferred on "Parliament", that is to say, the two Houses of Parliament and the President....

7. Article 240 provides:

(1) Parliament may by law create or continue for any State specified in Part C of the First Schedule and administered through the Chief Commissioner or Lieutenant-Governor

(a) a body .... .... elected.... .... to function as a Legislature for the State; or

(b) a Council of Advisers or Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.

(2) Any such law as is referred to in cl. (1) shall not be deemed to be an amendment of this Constitution for the purposes of Art. 368 notwithstanding that it contains any provision which amends or has the effect of amending the Constitution.

8. It is thus clear that the Constitution clearly empowers the Parliament to enact a law with regard to the Constitution, powers and functions of the Ajmer State Legislature and that law is to have effect notwithstanding that it contains any provision which has the effect of amending the Constitution. The learned counsel for the petitioner has urged that this provision does not empower the Parliament to take away the powers of the High Court under Art. 226. I am unable to see any force in this contention. By this article, the Parliament was clearly empowered to enact a law which would give to S. 35 of that Act the same force as Art. 212 has by the fact that it is incorporated in the Constitution. Section 35 provides:

(1) The validity of any proceedings in the Legislative Assembly of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No Officer or member of the Legislative Assembly of a State in whom powers are vested by or under this Act for regulating procedure or the conduct of business, or for maintaining order, in the Legislative Assembly shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

9. It is thus clear that if the matter concerns any proceedings of the Legislative Assembly, the validity of those proceedings cannot be called into question in this Court on the ground of any alleged irregularity of procedure.

10. The next contention of the learned counsel for the petitioner is that this does not concern any internal matter. The argument is that it is for the Courts to see that the boundaries set by the Constitution for the exercise of the functions of the Legislature are not exceeded. It is urged that the dispute relates to the high office of the Speaker and that such disputes have always been held to be open to the Court's scrutiny and examination. The learned counsel has referred to several rulings. In - 'Anand Bihari v. Ram Sahay', AIR 1952 MP 31 (C), it was held that the validity of the proceedings of the Legislature can be called in question on a ground other than the ground of an irregularity of procedure, and the proceedings would not be protected if they are held in defiance of the provisions of the Constitution or by exercising some powers which the Legislature does not possess under the Constitution.

The question for my determination is whether the question of election to the office of the Speaker is part of the proceeding of the Legislature. In - 'Nesamani v. Varghese', AIR 1952 TC 205 (D) it was held that when the matter in controversy has nothing to do with the exercise by an officer of the legislature of the powers vested in him, but is concerned with the interpretation of a relevant provision of law which is alleged to affect his legal right to continue in office, a court of law does have jurisdiction to deal with the matter. In the present case the question of the right of the Speaker to continue in office, independently of the proceedings of the Legislature, has not been raised before me. 'Shankar Shankar Roy Chowdhury v. H.E.A. Cotton': AIR 1925 Cal 373 (E), cannot be held to be good law any longer in view of the provisions of Art. 212. These rulings do not help the petitioner if the election is to be treated as a proceeding of the Assembly.

It is admitted by the respondents that the Court would have jurisdiction if the question involved on interpretation of either the Constitution or of an Act of Parliament. It is urged that the Court has no jurisdiction when the matter depends on the interpretation of the rules of business as they relate to proceedings in the House. Tin learned counsel for the respondents has urged that the rules framed under notification No. 10/52/LA dated 21-4-1952 are rules of procedure of the Assembly being modifications of the rules of procedure of the Uttar Pradesh Legislative Assembly. It is urged that these rules were made under S. 32 of Act 49 of 1951. It is further argued that as the Legislature has full authority to amend these rules, but, has permitted them to continue, the rules must be deemed to have been made by the Legislature itself.

This position is not contested by the learned counsel for the petitioner. He has, however, urged that the question of election is not a proceeding of the House. The learned counsel has referred to the provisions of Art. 66 and Art. 71. These relate to the election of the Vice President and the removal of doubts and disputes connected with the election of the President and the Vice President of India. I am unable to see any force in the contention. It is true that the Vice President is elected by the members of both Houses of Parliament assembled at a joint meeting, but that cannot be said to be a proceeding of either House. It must be deemed to be a meeting of an electoral college, meeting for the specific purpose of the election of the Vice President. There is no other provision in the Constitution for the election of the Speaker and the Deputy Speaker of the various Houses of the Legislature.

The mere fact that the Vice President is also the presiding officer of the Council of the State will not make the election of the Vice President, the election of the presiding officer of the Council of State. Otherwise the House of the People would have nothing to do with it. The members of both the Houses elect the Vice President and the Vice President, as such, presides over the Council of States. Article 66 is, therefore, no authority for holding that the election of the Speaker is not treated as part of the proceedings of an Assembly. The learned counsel for the petitioner has also urged that the election of the Speaker cannot be regarded as part of the proceeding but must be deemed as something preliminary to it. I am unable to attach any weight to this contention either. It appears to me that the House can act without the Speaker and the election of the Speaker is not essential or a pre-requisite for the proper constitution of the Legislature in order to enable it to function.

It is clear that it is not necessary for the House to elect a Speaker within the first 14 days of its existence or within the first 14 days of the occurrence of a vacancy in the office. It is also clear that Act 49 of 1951 itself does not in S. 10 prescribe for an election to the office of the Speaker. The Legislative Assembly is required only to choose two members to be respectively Speaker and Deputy Speaker. The method of election has been prescribed by the rules of procedure. On these considerations, I am of opinion that the election of the Speaker is a part of the proceeding of the Legislature.

11. The next contention of the learned counsel is that even if the internal matters are not subject to Court's scrutiny, the Court has jurisdiction as the challenge is against the action of the Chief Commissioner who is not an officer of the Assembly. It is urged that an unconnected person has been given power to set the machinery of election in motion. I am unable to attach any weight to this contention. In - 'Godavaris Misra v. Nanda Kishore Das', AIR 1953 Orissa 111 (F), it was held that

the giving of notice of questions by a member of the Assembly is part of proceedings in the Assembly and consequently any rule regulating the notice of questions is a rule regulating the conduct of business in Legislature.

It was further held that so long as the Speaker's action is relatable to any of the provisions dealing with his powers for regulating the procedure and conduct of business in the Legislature the Court's jurisdiction would be ousted. In - 'Amir Ahmad v. Nand Lal',: AIR 1953 Pat 293 (G) it was held that the issue of notification under Ss. 151 and 39(2); Representation of the People Act, is a part of the process of election. In - 'Shankar v. Returning Officer, Kolaba Dist.',: AIR 1952 Bom 277 (H), it was held:

Election is not merely the ultimate decision or the ultimate result. "Election" is every stage from the time the notification is issued till the result is declared and even perhaps if there is an election petition, till the decision of the Election Tribunal. It is one whole continuous integrated proceeding and every aspect of it and every stage of it and every step taken in it is a part of the election.....

12. It is thus clear that the act of fixing a date for holding an election is a part of the election (which is to be held by the Legislative Assembly. In - 'Thankamma v. Honourable Speaker Legislative Assembly Tra-Co.', AIR 1952 TC. 166 (I), it was held that the Speaker while administering the oath to the members of the Legislature was acting only on behalf of the Raj Pramukh and that the oath was to be administered by the Raj Pramukh or some one appointed by him in that behalf. It follows that the Legislature may also have appointed any other officer to fix the date of the election and that irrespective of the high office held by him, the Chief Commissioner while fixing a date for election under R. 5 must be deemed to be an officer of the Legislative Assembly. Thus even though the petitioner purports to challenge the action of the Chief Commissioner, he is, in fact challenging the validity of the proceedings of the Assembly.

13. The next contention of the learned counsel is that the jurisdiction of the Court is available unless expressly barred. The learned counsel refers to Arts. 329 and 71 of the Constitution. In my opinion, there is no force in this contention as I am of the view that S. 35 of Act 49 of 1951 expressly bars the jurisdiction of this Court so far as the proceedings of the Legislature are concerned.

14. It has also been urged by the learned counsel for the respondents that the petition is not covered by the provisions of Art. 226 of the Constitution. It is conceded that no question of any fundamental right is involved. I have to consider whether the petition is covered by the words 'for any other purpose' occurring at the end of cl. (1) of Art. 226. It is now settled law that the petitioner would be entitled to a writ only if he establishes a legal right. I need not refer to the rulings relied on by the learned counsel for the respondents. It is clear that the petitioner never became the Speaker. He has himself in para 10 stated that respondent 3 was particularly called upon to declare the petitioner as the duly elected Speaker. In para 16(vii) he has stated that respondent 3 was under the legal obligation to declare the petitioner as the duly elected Speaker and that in the eye of law the petitioner stood declared as the Speaker of the Ajmer State Assembly.

It is, therefore, clear that a declaration under R. 5(3), in case there was only one person duly nominated, or of the result of the ballot if there were more than one duly nominated candidate, was essential before the petitioner could be said to have become the Speaker. It is common ground that no such declaration was made in favour of the petitioner either on 13-10-1954 or on 15-10-1954. As such the petitioner never became the Speaker. He could not claim to be entitled to any legal status or character. All that he could do, if permitted by law, was to ask that the proceedings be declared invalid or to challenge the title of respondent 3 to hold the office of the Speaker.

15. On a consideration of these points, I am of opinion that this Court has no jurisdiction to entertain the petition.

16. I have been addressed at length as to whether R. 5 of the rules promulgated by notification No. 10/52/LA dated 21-4-1952 is mandatory or merely directory and whether the Chief Commissioner's action in changing the date was mala fide and whether he was competent to make the alteration in the date. It has also been urged that the communication of the change made by Shri B.N. Mathur was not a valid communication and therefore the date of the election remained as 13-10-1954. The learned counsel for the respondents has also urged that if Shri B.N. Mathur was not authorised to make the Communication in regard to the change in the date of the election, the nomination paper of the petitioner was not properly handed over. It has further been urged that in any case the change in the date was sufficiently announced by the Leader of the House under R. 19 (2) of the Rules of Procedure on 11-10-1954. The learned counsel for the petitioner has further urged that even on 15-10-1954, respondent 3 could not be elected as Speaker as he could not simultaneously hold both the offices of the Speaker and the Deputy Speaker. It is also contended that he could not have tendered his resignation as there was no Speaker at that time.

I have considered all these matters and I am of opinion that there is no force in the arguments on behalf of the petitioner. But I refrain from discussing these matters in detail as all of them relate to the proceedings of the House and this Court has no jurisdiction to scrutinise or to examine those matters. It is sufficient for me to state that the election of the Speaker is a part of the proceedings of the House and any irregularity committed in fixing the date of the election or holding of any candidate as a duly nominated candidate will not be open to scrutiny or examination by this Court. I refrain from this examination also because, for reasons to be stated, I am of opinion that even if the contentions are held to have substance in them, the petitioner would not be entitled to any relief from this Court.

17. In matters of election no relief is granted unless the result of the election has been materially affected. In this connection reference may be made to the provisions of S. 100(2)(c), Representation of the People Act, 1951. The petitioner has alleged prejudice from the change in date. It has, however, not been stated that the Congress party had not arrived at a decision in sufficient time to permit it to file a nomination on 12-10-1954. There is no allegation that due to dissensions in the Congress party the petitioner would have secured a majority of the votes if the election had taken place on 13-10-1954. It is admitted that the Congress party is the majority party in the State Legislature and that the petitioner does not belong to it. Thu even if the election were to be held on 13-10-1954, there was no possibility of the petitioner getting elected particularly as the election of the Speaker is held by eliminating ballots. Even if more than one candidate had been put up on behalf of the Congress party, the petitioner could not have stood a chance of election merely because of division in the majority party. As such, no actual prejudice having been proved, the petitioner is not entitled to any relief.

18. The election was held on 15-10-1954. If the petitioner was supported by a majority, he could have by now been elected Speaker by moving a vote of non-confidence in the Speaker then declared elected and then getting himself elected. That he has failed to do so clearly shows that he is not supported by the majority. This is also borne out from the facts that the Congress party has 20 members in the Legislature and the petitioner is not one of them. Even if the petitioner is declared a Speaker, he would easily be voted out of office as he is not supported by the majority. Thus no useful purpose would be served by declaring the petitioner to be the duly elected Speaker.

19. The relief of a writ of mandamus is discretionary with the Court. In - 'Hari Das v. Bejoy Prosad Singha', AIR 1946 Cal 121 (FB) (J) it was stated:

Nothing would induce me to make an order which might have the possible effect of allowing the will of the minority to prevail over the will of the majority.

If I may say so, I respectfully agree with the view expressed. I am also of the view that the discretion should not be exercised in a manner that will make the will of the minority prevail over that of the majority even if for a short period. I am, therefore, unable to grant a writ of mandamus directing the respondents to obey the petitioner as the duly elected Speaker of the Ajmer State Legislative Assembly.

20. The learned counsel for the respondents has in the alternative urged that this petition may be treated as laving information in the nature of quo warranto and that a declaration be granted that respondent 3 is not the duly elected Speaker for the Ajmer State Legislative Assembly. The learned counsel relies on - 'Charanjitlal v. Union of India',: AIR 1951 SC 41 (K) and urges that this Court has discretion in the matter of framing its writs to suit the exigencies of particular cases. The two writs vary considerably, in their operation. I also find that the election that was held on 15-10-1954 has not been specifically challenged. The petitioner has claimed the office of the Speaker mainly on two grounds. The first is that he himself in the eye of law stood declared as the Speaker or the Ajmer State Legislative Assembly and the second is that respondent 3 could not be set up as a candidate for Speakership. This means that respondent 3 could not be declared to have been duly nominated for the election to the office of the Speaker. Both the matters are proceedings of the House and are not open to challenge in this Court. It has not been urged that respondent 3 is not vested with the office of the Speaker because of what has taken place in the Assembly or in spite of what has taken place. The title of respondent 3 cannot be challenged without a scrutiny of the proceedings of the Assembly and I have held that I have no jurisdiction to scrutinize that matter. In addition the proceedings of 15th October have not been challenged. On the facts alleged, thus, the petitioner is entitled to no relief.

21. I, therefore, see no force in this petition and dismiss it with costs which I assess at Rs. 150/- (Rupees one hundred and fifty only).