Case: Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others

Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of that case were these. An election was held on February 14, 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. At the election there were four candidates-the plaintiff Bhupendra Nath Basu, the 1st defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity of the election. He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance. Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate". Such a declaration had not been made on the date of the election.The contention of the plaintiff was rejected by the High Court in the following terms:"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B . &C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these Regulations. These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the Regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative function s conferred by the Regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the Rule fails and must be discharged, and discharged with costs.10. We are of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of t he Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent No . 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.I

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Article 191 of the Constitution prescribes the disqualifications for membership of the Legislative Assembly or Legislative Council of a State. On the incurring of any such disqualification a member of a Legislative Assembly or a Legislative Council ceases to be a member thereof. Article 193 of the Constitution provides for the penalty for sitting and voting before making oath or affirmation under Article 188 of the Constitution or when not qualified or when disqualified the penalty being in respect of each day five hundred rupees to be recovered as a debt due to the State. It does not say that if an elected member of a Legislative Assembly sits and votes before taking oath as prescribed by Article 188 of the Constitution he shall automatically cease to be a member of the House, even though it is possible that his seat maybe declared as vacant under Article 190(4) of the Constitution if for sixty days he is absent from all meetings of the House without its permission. Now the question is whether the making of oath or affirmation is a condition precedent for being eligible to a ct as a proposer of a valid nomination for election to the Rajya Sabha. The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words `sitting and voting in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted. The election in question does not form a part of the Legislative proceedings o f the House carried on at its meeting. Nor the votes cast at such an election is a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose. As mentioned earlier, under section 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven oclock in the forenoon and three oclock in the afternoon before the last day notified for making nominations under section 30 of the Act. Then all further steps such as scrutiny of nominations and withdrawal of nominations take place before the Returning Officer. Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning Officer for such election shall, as soon as may be after the last date for the withdrawal of candidatures, send to each elector a notice informing him of the date, time and place fixed for polling. Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of that case were these. An election was held on February 14, 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. At the election there were four candidates-the plaintiff Bhupendra Nath Basu, the 1st defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity of the election. He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance. Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate". Such a declaration had not been made on the date of the election.The contention of the plaintiff was rejected by the High Court in the following terms:"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B . &C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these Regulations. These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the Regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative function s conferred by the Regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the Rule fails and must be discharged, and discharged withare of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of t he Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent No . 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.In the result we allow the above appeals, set aside the judgment of the High Court and dismiss the election petition filled by respondent No. 1. Having regard to the novelty of the question raised in this case the parties are directed to bear their own costs throughout.