IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.12.2008 CORAM: THE HONOURABLE MR.S.J.MUKHOPADHAYA, THE ACTING CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION NO.29789 OF 2008 & M.P.NO.1 OF 2008 G.Ramalingam, S/o Gangachalam, President,Ivanur Village Panchayat, Thittakkudi Taluk, Cuddalore District. .. Petitioner vs. 1. The Election Commission of India, rep. by its Chief Election Commissioner, New Delhi. 2. The Secretary to Government, Tamil Nadu Legislative Assembly Department, Secretariat,Chennai-600 009. 3. Thiru.K.Selvam .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, as stated therein. For petitioner : Mr.R.Muthukumraswami, Senior Counsel for M/s.C.Kasirajan For respondent-2 : Mr.Raja Kalifulla, Govt. Pleader Order (The Order of the Court was made by The Honourable The Acting Chief Justice) This Writ Petition has been preferred by the petitioner in public interest, for a direction on the first respondent-Election Commission of India, to take action pursuant to his representation dated 13.12.2008, sent by Fax and by Post, by the petitioner, and to direct the By- Election for the Mangalore Constituency of the Tamil Nadu Legislative Assembly to take place along with the By-Election notified for Thirumangalam Constituency to be held on 9.1.2009 or any other date. 2. According to the petitioner, he is the Voter of the Mangalore Constituency. Third respondent, who is a Member of the Legislative Assembly, was reported to have submitted his resignation in writing to the Speaker of the Tamil Nadu Legislative Assembly. The fact was widely https://hcservices.ecourts.gov.in/hcservices/ published in all leading Newspapers, both in English and Tamil. After submission of the said resignation, third respondent has also give an interview to the Press, stating that he has submitted resignation to the Speaker in person. On the same day, i.e. on 11.11.2008, third respondent joined the other Political Party, namely Bahujan Samaj Party (ie. BSP) and was also appointed by the said Party as its State President for Tamil Nadu. The action of third respondent in joining BSP on 11.11.2008 amounts to his voluntary giving up of his membership of the VCK Party where he was a Member, pursuant to which he was elected as an MLA and consequently stands disqualified from being a Member of the House in terms of Paragraph 2(1)(a) of the X Schedule to the Constitution of India. It is further submitted that consequently, third respondent also stands disqualified from being a Member of the Tamil Nadu Legislative Assembly in terms of Article 191(2) of the Constitution of India and and the seat relating to the Mangalore Legislative Assembly Constituency became vacant as on 11.11.2008 under Article 190(3) of the Constitution of India. 3. Learned Government Pleader appearing for the second respondent, on oral instructions, submitted that first of all, third respondent submitted his resignation in a plain white paper and not in the prescribed format in which he was supposed to submit his resignation and for the said reason, the Speaker of the Legislative Assembly has not yet taken decision on the same. 4. We have heard the learned counsel appearing for the parties and noticed their rival contentions. 5. From the pleadings as were made, even if we presume that third respondent has submitted his letter of resignation, though it is not on record, in the absence of any determination by the Speaker of the Legislative Assembly, the seat of a Member of Mangalore Legislative Assembly Constituency cannot be treated as vacant. In this background, the question of issuance of any Writ of Mandamus, on first respondent- Election Commission of India, to hold Election for the said Constituency, does not arise at this stage. The matter is premature and if occasion arises, the petitioner may move before appropriate forum. 6. With the above observations, the Writ Petition is dismissed. No costs. The Miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. cs To 1. The Election Commission of India, rep. by its Chief Election Commissioner, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 2. The Secretary to Government, Tamil Nadu Legislative Assembly Department, Secretariat, Chennai-600 009. + 1 cc to M/s.C.KasiRajan,Advocate, SR.70560 + 1 cc to Government Pleader, SR.70533 Writ Petition.29789 of 2008 MS(CO) EM/5.1.09 https://hcservices.ecourts.gov.in/hcservices/