Civil Appeal No 50 of 1965
Appeal by special leave from the order dated January 6 1965 of the Circuit Bench of the Punjab High Court at Delhi in Civil Writ No 8 D of 1965
MC Setalvad Ravinder Narain JB Dadachanji and OC Mathur for the appellant
CK Daphtary Attorney General SV Gupte Solicitor General BRL lyengar and RH Dhebar for the respondent No 1
Santosh Chatterjee B B Ratho and ML Chhibber for respondent No 2
The Judgment of the Court was delivered by Gajendragadkar CJ
The principal question which this appeal by special leave raises for our decision relates to the construction of Article 192 of the Constitution
The said question arises in this way
The appellant Brundaban Nayak was elected to the Legislative Assembly of Orissa from the Hinjili 23 Constituency in Ganjam district in 1961 and was appointed one of the Ministers of the Council of Ministers in the said State
On August 18 1964 respondent No 2 P Biswal applied to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under article 1911e of the Constitution read with section 7 of the Representation of the People Act 1951 No 43 of 1951 hereinafter called the Act
In his application respondent No 2 made several allegations in support of his contention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly
On September 10 1964 the Chief Secretary to the Government of Orissa forwarded the said complaint to respondent No 1 the Election Commission of India under the instructions of the Governor
In this communication the Chief Secretary stated that a question had arisen under Article 1911 of the Constitution whether the member in 55 question had been subject to the disqualification alleged by respondent No 2 and so he requested respondent No 1 in the name of the Governor to make such enquiries as it thinks fit and give its opinion for communication tO the Governor to enable him to give a decision on the question raised
On November 17 1964 respondent No 1 served a notice on the appellant forwarding to him a copy of the letter received by it from respondent No 2 dated the 4th November 1964
The notice intimated to the appellant that respondent No 1 proposed to enquire in the matter before giving its opinion on the Governor s reference and therefore called upon him to submit on or before the 5th December 1964 his reply with supporting affidavits and documents if any
The appellant was also told that the parties would be heard in person or through authorised counsel at 10 30 AM on the 8th December 1964
in the office of respondent No 1 in New Delhi
On December 1 1964 the appellant sent a telegram to respondent No 1 requesting it to adjourn the hearing of the matter
On the same day he also addressed a registered letter to respondent No 1 making the same request
Respondent No 2 objected to the request made by the appellant for adjourning the hearing of the complaint
On December 8 1964
respondent No 1 took up this matter for consideration
Respondent No 2 appeared by his counsel Mr Chatterjee but the appellant was absent
Respondent No 1 took the view that an enquiry of the nature contemplated by article 1922 must be conducted as expedtiously as possible and so it was necessary that whatever his other commitments may be the appellant should arrange to submit at least his statement in reply to the allegations made by respondent No 2 even if he required some more time for filing affidavits andor documents in support of his statement
Even so respondent No 1 gave the appellant time until the 2nd January 1965 10 30 AM when it ordered that the matter would be heard
On January 2 1965 the appellant appeared by his counsel Mr Patnaik and respondent No 2 by his counsel Mr Chatterjee
On this occasion Mr Patnaik raised the question about the maintainability of the proceedings before respondent No 1 and its competence to hold the enquiry
Mr Chatterjee repelled Mr Patnaik s contention
Respondent No 1 over ruled Mr Patnaik s contention and recorded its conclusion that it was competent to hold the enquiry under article 1922
Mr Patnaik then asked for adjournment and made it clear that he was making the motion for adjournment without submitting to the jurisdiction of respondent No 1
In view of the attitude adopted by Mr Patnaik respondent No 1 took the view that it would be pointless to adjourn the proceedings
and so it heard Mr Chatterjee in support of the case of respondent No 2
After hearing Mr Chatterjee
respondent No 1 reserved its orders on the enquiry and noted that its 56 opinion would be communicated to the Governor as early as possible
When matters had reached this stage before respondent No 1 the appellant moved the Punjab High Court under article 226 of the Constitution praying that the enquiry which respondent No 1 was holding should be quashed on the ground that it was incompetent and without jurisdiction
This writ petition was summarily dismissed by the said High Court on January 6 1965
Thereafter the appellant applied to this Court for special leave on January 8 1965 and special leave was granted to him on January 14 1965
The appellant then moved this Court for stay of further proceedings before respondent No 1 and the said prayer was granted
When special leave was granted to the appellant this Court had made an order that the preparation of the record and the filing of statements of the case should be dispensed with and the appeal should be heard on the paper book filed along with the special leave petition and must be placed for hearing within three weeks
That is how the matter has come before us for final disposal
Since the Punjab High Court had dismissed the writ petition filed by the appellant in limine neither of the two respondents had an opportunity to file their replies to the allegation made by the appellant in his writ petition
That is why both respondent No 1 and respondent No 2 have filed counter affidavits in the present appeal setting out all the relevant facts on which they wish to rely
The appellant has filed an affidavit in reply
All these documents have been taken on the record at the time of the hearing of this appeal
It appears from the affidavit filed by Mr Prakash Narain
Secretary to respondent No 1 that when notice issued by respondent No 1 on the 17th November 1964 was served on the appellant through oversight the original complaint flied by respondent No 2 before the Governor of Orissa and the reference made by the Governor to respondent No 1 were not forwarded to the appellant
At the hearing before us it is not disputed by the appellant that a complaint was in fact made by respondent No 2 before the Governor of Orissa and that the Governor had then referred the matter to respondent No 1 for its opinion
Let us then refer to Article 192 which fails to be construed in the present appeal
Before reading this articl it is relevant to refer to article 191
Article 1911 provides that a person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State if 57 to the Governor
As we have already indicated respondent No 2 s case is that the appellant has incurred the disqualification under article 1911e read with section 7d of the Act and this disqualification has been incurred by him subsequent to his election
It is well settled that the disqualification to which article 1911 refers must be incurred subsequent to the election of the member
This conclusion follows from the provisions of article 1903a
This Article refers to the vacation of seats by members duly elected
Sub Article 3a provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause 1 of article 191 his seat shall thereupon become vacant
Incidentally we may add that corresponding provisions with regard to the disqualification of members of both Houses of Parliament are prescribed by Articles 101102 and 103 of the Constitution
It has been held by this Court in Election Commission India vs Saka Venkata Subba Rao and Union of lndia Intervenerthat Articles 1903 and 1921 are applicable only to disqualifications to which a member becomes subject after being elected as such
There is no doubt that the allegations made by respondent No 2 in his complaint before the Governor prima facie indicate that the disqualification on which respondent No 2 relies has arisen subsequent to the election of the appellant in 1961
Reverting then to article 192 the question which we have to decide in the present appeal is whether respondent No 1 is entitled to hold an enquiry before giving its opinion to the Governor as required by article 1922
Let us read article 192 1 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 Article 191 the question shall be referred for the decision of the Governor and his decision shall be final
2 Before giving any decision on any such question
the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion
Mr Setalvad for the appellant contends that in the present case
no question can be said to have arisen as to whether the appellant has become subject to any of the disqualifications mentioned in clause 1 of article 191 because his case is that such a question can be raised only on the floor of the Legislative Assembly and can be raised by members of the Assembly and not by an ordinary citizen or voter in the form of a complaint to the Governor
Mr Setalvad did not dispute the fact that this contention has not been taken by the appellant either in his writ petition before the High Court or even in his application for special leave before this Court
In fact the case sought to be made out by the appellant in the present proceedings appears to be that though a question may have arisen about 11953SCR1144
58 his disqualification it is the Governor alone who can hold the enquiry and not respondent No 1
Even so we have allowed Mr Setalvad to raise this point because it is purely a question of law depending upon the construction of article 1921
In support of his argument Mr Setalvad refers to the fact that article 192 occurs in Chapter III of Part VI which deals with the State Legislature and he invited our attention to the fact that under article 1993 which deals with a question as to whether a Bill introduced in the Legislature of a State which has a Legislative Council is a Money Bill or not the decision of the Speaker of the Legislative Assembly of such State thereon shall be final
He urges that just as the question contemplated by article 1993 can be raised only on the floor of the House so can the question about a subsequent disqualification of a member of a Legislative Assembly be raised on the floor of the House and nowhere else
He concedes that whereas the question contemplated by article 1993 has to be decided by the Speaker and his decision is final the authority to decide the question under article 1921 is not vested in the Speaker
but is vested in the Governor
In other words the context in which article 1921 occurs is pressed into service by Mr Setalvad in support of his argument
Mr Setalvad also relies on the fact that article 1921 provides that if any question arises it shall be referred for the decision of the Governor and this clause says Mr Setalvad suggests that there should be some referring authority which makes a reference of the question to the Governor for his decision
According to him this referring authority by necessary implication is the Speaker of the Legislative Assembly
There is another argument which he has advanced before us in support of this construction
Article 1922 requires that whenever a question is referred to the Governor he shall obtain the opinion of the Election Commission and Mr Setalvad suggests that it could not have been the intention of the Constitution to require the Governor to refer to the Election Commission every question which is raised about an alleged disqualification of a member of a Legislative Assembly even though such a question may be patently frivolous or unsustainable
We are not impressed by these arguments
It is significant that the first clause of article 1921 does not permit of any limitations such as Mr Setalvad suggests
What the said clause requires is that a question should arise how it arises by whom it is raised in what circumstances it is raised are not relevant for the purpose of the application of this clause
All that is relevant is that a question of the type mentioned by the clause should arise and so the limitation which Mr Setalvad seeks to introduce in the construction of the  first part of article 192I is plainly inconsistent with the words used in the said clause
59 Then as to the argument based on the words the question shall be referred for the decision of the Governor these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint send it on or refer it to the Governor for his decision
These words merely emphasise that any question of the type contemplated by clause 1 of article 192 shall be decided by the Governor and Governor alone no other authority can decide it nor can the decision of the said question as such fall within the jurisdiction of the Courts
That is the significance of the words shall be referred for the decision of the Governor
If the intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor article 1921 would have been worded in an entirely different manner
We do not think there is any justification for reading such serious limitations in article 1921 merely by implication
It is true that article 1922 requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly it has to be forwarded by the Governor to the Election Commission for its opinion
It is conceivable that in some cases complaints made to the Governor may be frivolous or fantastic but if they are of such a character the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway
The object of article 192 is plain
No person who has incurred any of the disqualifications specified by article 1911 is entitled to continue to be a member of the Legislative Assembly of a State and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by article 1903a there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in article l 91 1 and should therefore vacate his seat
The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status and if any member forfeits that status by reason of a subsequent disqualification it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of article 1922
Therefore we must reject Mr Setalvad s argument that a question has not arisen in the present proceedings as required by article 1921
The next point which Mr Setalvad has raised is that even if a question is held to have arisen under article 1921 it is for the Governor to hold the enquiry and not for the Election Commission
He contends that article 1921 requires the question to be referred to the Governor for his decision and provides that his decision shall be final
It is a normal requirement of the rule of law that a person 60 who decides should be empowered to hold the enquiry which would enable him to reach his decision and since the Governor decides the question he must hold the enquiry and not the Election Commission
That in substance is Mr Setalvad s case
He concedes that article 1922 requires that the Governor has to pronounce his decision in accordance with the opinion given by the Election Commission that is a Constitutional obligation imposed on the Governor
He however argues that the Election Commission which has to give an opinion is not competent to hold the enquiry but it is the Governor who should hold the enquiry and then forward to the Election Commission all the material collected in such an enquiry to enable it to form its opinion and communicate the same to the Governor
We are satisfied that this contention also is not well founded
The scheme of Article 1921 and 2 is absolutely clear
The decision on the question raised under article 1921 has no doubt to be pronounced by the Governor but that decision has to be in accordance with the opinion of the Election Commission
The object of this provision clearly is to leave it to the Election Commission to decide the matter though the decision as such would formally be pronounced in the name of the Governor
When the Governor pronounces his decision under article 1921 he is not required to consult his Council of Ministers he is not even required to consider and decide the matter himself he has merely to forward the question to the Election Commission for its opinion and as soon as the opinion is received he shall act according to such opinion
In regard to complaints made against the election of members to the Legislative Assembly
the jurisdiction to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act
That means that all allegations made challenging the validity of the election of any member have to be tried by the Election Tribunals constituted by the Election Commission
Similarly all complaints in respect of disqualifications subsequently incurred by members who have been validly elected have in substance to be tried by the Election Commission though the decision in form has to be pronounced by the Governor
If this scheme of article 1921 and 2 is borne in mind there would be no difficulty in rejecting Mr Setalvad s contention that the enquiry must be held by the Governor
It is the opinion of the Election Commission which is in substance decisive and it is legitimate to assume that when the complaint is received by the Governor and he forwards it to the Election Commission
the Election Commission should proceed to try the complaint before it gives its opinion
Therefore we are satisfied that respondent No 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof
Mr Setalvad faintly attempted to argue that the failure of respondent No 1 to furnish the appellant with a copy of the complaint made by respondent No 2 before the Governor and of the 61 order of reference passed by the Governor forwarding the said complaint to respondent No 1 rendered the proceedings before respondent No 1 illegal
This contention is plainly misconceived
As soon as respondent No 1 received the complaint and the order of reference which was communicated to it by the Chief Secretary to the Government of Orissa it was seized of the matter and it was plainly acting within its jurisdiction under article 1922 when it served the notice on the appellant
As we have already indicated it was through oversight that the two documents were not forwarded to the appellant along with the notice but that cannot in any sense affect the jurisdiction of respondent No 1 to hold the enquiry
In fact as respondent No 2 has pointed out in his affidavit the fact that a reference had been made by the Governor to respondent No 1 was known all over the State and it is futile for the appellant to suggest that when he received the notice from respondent No 1 he did not know that a complaint had been made against him to the Governor alleging that subsequent to his election he had incurred a disqualification as contemplated by article 1911e of the Constitution read with section 7d of the Act
It would have been better if the appellant had not raised such a plea in the present proceedings
In this connection we ought to point out that so far the practice followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under article 1922 and article 1032
In fact the learned Attorney General for respondent No 1 stated before us that though on several occasions the Election Commission has held enquiries before communicating its opinion either to the President under article 1032 or to the Governor under article 1922 no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively under article 1031 and article 1921
He suggested that the main object of the appellant in taking such a plea was to prolong the proceedings before respondent No 1
In the first instance the appellant asked for a long adjournment and when that request was refused by respondent No 1 he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the appellant by respondent No 2
We cannot say that there is no substance in this suggestion
There is one more point to which we may refer before we part with this appeal
Our attention was drawn by the learned Attorney General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Governor on May 30 1964 on a similar question under article 1922 in respect of the alleged disqualification of Mr Biren Mitra a member of the Orissa Legislative Assembly Where as in the present case observed the Chief Election Commissioner the relevant facts are in dispute and can only be ascertained after a proper enquiry the Commission finds itself in the unsatisfactory position of having to give a decisive LBD2SCI 6 62 opinion an the basis of such affidavits and documents as may be produced before it by interested parties
It is desirable that the Election Commission should be vested with the powers of a commission under the Commissions of Enquiry Act 1952 such as the power to summon witnesses and examine them on oath the power to compel the production of documents and the power to issue commissions for the examination of witnesses
We would like to invite the attention of Parliament to these observations because we think that the difficulty experienced by the Election Commission in rendering its opinion under article 1032 or article 1922 appears to be genuine and so Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf
The result is the appeal fails and is dismissed with costs
In view of the fact that the present proceedings have unnecessarily protracted the enquiry before respondent No 1 we suggest that respondent No 1 should proceed to consider the matter and forward its opinion to the Governor as early as possible
It is hardly necessary to point out that in case the allegations made against the appellant are found to be valid and the opinion of respondent No1 is in favour of the case set out by respondent No 2 complications may arise by reason of the Constitutional provision prescribed by article 1903
In view of the said provision it is of utmost importance that complaints made under article 1921 must be disposed of as expeditiously as possible
Appeal dismissed


Summary:
The appellant was elected to the Orissa Legislative Assembly in 1961
In 1964 respondent No 2 made a complaint to the Governor alleging that the appellant had incurred a disqualification subsequent to his election as contemplated in article 1911e of the Constitution read with section 7 of the Representation of the People Act Act 43 of 1951
The Chief Secretary Orissa forwarded the said complaint to respondent No 1 the Election Commission of India under the instructions of the Governor requesting it to make enquiry into the complaint and give its opinion
Accordingly respondent No 1 served notice on the appellant and called upon him to submit his reply
The appellant challenged the jurisdiction of respondent No 1 to conduct the enquiry and filed a writ petition in the High Court
On its being dismissed he appealed to this Court by special leave
It was contended on behalf of the appellant that no question under article 1921 had arisen in the case as a question relating to the disqualification of a member under article 1911e could not be raised by an ordinary citizen
It was urged that considering the context of article 192 and the provisions of article 199 the question could only be raised on the floor of the House and thereafter referred to the Governor by the Speaker of the Assembly
It was further contended that only the Governor who had to give the decision could hold the enquiry and the Election Commission was only to give its opinion on the materials forwarded to it by the Governor
HELD i The argument t that no question had arisen under article 1921 could not be accepted
What Art 1921 requires is that a question should arise how it arises by whom it is raised in what circumstances it is raised are not relevant for the purpose of the application of this clause
59 H The words in article 1921 that the question shall be referred for the decision of the Governor merely emphasise that any question of the type contemplated in the said clause shall be decided by the Governor and Governor alone no other authority including the courts can decide it
Ii the intention was that the question must be raised first in the legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor article 1921 would have been worded in an entirely different manner
59 B C The object of Art 192 is that no member who has incurred a disqualification under article 1911 should be allowed to continue as a member
The Constitution itself in Art 1903 provides for the vacation of the seat of such a member
Further it is in the interests of the member s constituency that no longer being entitled to the status of a member
he should be removed
In view 54 of these considerationS a citizen is certainly entitled to make a complaint to the Governor about the disqualification incurred by a member under article 1911
E G ii The enquiry for the purpose of the decision under article 192 has to be held by the Election Commission and not by the Governor
When the Governor pronounces his decision under article 1921 he is not required to consult his Council of Ministers he has merely to forward the question to the Election Commission for its opinion and as soon as the opinion is received he shall act according to such opinion
It is the opinion of the Election Commission which is in substance decisive and it is legitimate that the Commission should proceed to try the complaint before it gives its opinion
60 D H Legislation to vest Election Commission with powers of a Commission under the Commissions of Enquiry Act 1952 recommended 62 B