. Rani Praaad Narayan Sahi

and Another

The State of Bihar and

Other".

M nkherjea J.

ii44 StJPREl\fE . COURT REPORTS [1953]

comprised in the lease referred to in that Act.

The appellants will have their costs in both c"ourts .

VIVIAN BosE J.-I am in entire agreement with my Lord the Chief Justice and with my learned brother Mukherjea.

GHULAM HASAN J.--1 agree with my Lord the Chief Justice and with my brother Mukherjea.

BHAGWATI J.-1 entirely agree with the judgment just delivered by my Lord the Chief Justice and my brother Mukherjea and there is nothing which I can usefully add.

Appenl allowed.

Agent for the appellants: I. N. Shroff.

Agent for the respondents: G. H. Rajadhyaksha.

ELECTION COMMISSION, INDIA v.

SAKA VENKATA SUBBA RAO UNION OF INDIA-Intervener. [PATANJALI SAS'l'RI C. J., MuKHERJEA, VIVIAN BosE,

GHULAM HASAN and BHAGWA'rI JJ.]

Gonstitntion of India, 1950, a.rts. 132, 102, 2211-High Court -Poiver to issue writs-Liniitatio1u1-Po1oer to issue iurit on persons residinu outside territorial fttrisdiction-Election to 11Iad1'as

Assembly-Reference to l!Jlection Commission, New Dclhi-Jllrisdiction of .iliarlras High Conrt to issue ivrit a{]ainst 00111.rnission-Dis qiwlification before election-Effect of-Appeals from Sin17le Judge,

The respondent, who had been convicted and sentenced to rigorous imprisonment for seven years, was elected a member of the Madras Legislative Assembly. At the instance of the Speaker of the Assembly, the Governor of Madras referred to the Election Commission, which had its offices permanently located at New Delhi, the question whether the respondent was disqualified and could be allowed to sit and vote in the Assembly, The respondent thereupon applied to the High Court of Madras under article 226 of the Constitution for a writ restraining the Election Commission from enquiring into bis alleged disqualification for membership of the Assembly :

Held, thJ>t the power of the High Court to issue writs under article 226 of the Constitution is subject to the twofold limitation

that such writs cannot run beyond the territories subject to its 1953 jurisdiction and th& person or authority to whom the High Court is empOVi'ered to issue such \Vrits must be amenable to the juris- Election Com-- diction of the High Court either hy residence or location "rithin niission, India the territories subject to its jurisdiction.

The High Court of Saka ~; nkata liladras bad therefore no jurisdiction to issue a writ unc1er article Subba. Rao 226 of the Constitution against the Election Commission.

Held f!!rther, that articles 190(3) and 192(1) are applicable l'alanjali Sastri only to disqualifications to which a member becomes subject after o. J. heis elected as such, and neither the Governor nor the Election Commission had jurisdiction to enquire into the respondent's disqualification which arose long before his election.

A tribunal or authority permanently located and normally carrying on its activities outside the territorial limits of a High Court cannot be regarded as functioning within those territorial limits and therefore amenable to the jurisdiction of that High Court, , merely because it exercises jurisdiction within those territorial limits so as to affect the rights of parties therein.

The fact that the matter referred to it for decision related to the opposite party's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute resided in the State of Madras could not give jurisdiction to the High Court of ?i.iadras to issue such a writ against the Election Commission.

An appeal lies to the Supreme Court under article 132 of the Constitution even from a judgment, decree or final order of a Single Judge of a High Court, provided the requisite certificate is given.

Crvn, APPELLATE JumsDH"rlON: Civil Appm1l No. 205 of 1952.

Appeal from the Judgment and Order elated the 16th September, 1952, of the High Court of Judicature at Madras (Subba Rao J.) in Writ Petition No. 599 of 1952 filed under the Special Original Jurisdiction of the High Court under article 226 of the" Constitution of India.

M. C. Setalvad, Attoi•ney-Genernl for Indict (G. N.

Joshi, with him) for the appellant and Intervener.

Mohan Kumaramangalam, for the respondent.

1953. February 27. The judgment of the court was delivered by

PATANJALI SASTRI C.J,.-'l'his is an appeal from an order of a Single Judge of the High Court of Judicature at Madras issuing a writ of prohibition restraining the

19.;3 Election Commission, a statutory authority corntituted by the President and having its offices permanent- Election Com,- mission India ly located at New Delhi, from enquiring into the allegv. ed disqualification of the respondent for membership Saka Venkata of the Madras Legislative Assembly.

Subba Rao Th d t . d b th S .

J d . _ e respon en was convwte y e ess10ns u ge Patanjali Scrntri of East Godavari and sentenced to a term of seven

c. J. years' rigorous imprisonment in 1942, and he was released on the occasion of the celebration of the Independence Day on 15th August, 1947. In June, 1952, there was to be a by-election to a reserved seat in the Kakinada constituency of the Madras Legislative Assembly, and the respondent, desiring to offer himself as a candidate but finding himself disqualified under section 7 (b) of the Representation of the People Act, 1951, as five years had not elapsed from his release, applied to the Commission on 2nd April, 1952, for exemption so as to enable him to contest the election. No reply to the application having been received till 5th May, 1952, the last day for filing nominations, the respondent filed his nomination on that day, but no exception was taken to it either by the Returning Officer or any other candidate at the scrutiny of the nomination papers. The election was held on 14th June, 1952, and the respondent, who secured the largest number of votes, was declared elected on 16th June, 1952. The result of the election was published in the Fort St.

George Gazette (Extraordinary) on 19th June, 1952, and the respondent took his seat as a member of the Assembly on 27th June, 1952. Meanwhile, the Commission rejected the respondent's application for exemp tion and communicated such rejection to the respond. ent by its letter dated 13th May, 1952, which however was not received by him. On 3rd July, 1952, the Speaker of the Assembly read out to the House a communication received from the Commission bringing to his notice "for such action as he may think fit to take", the fact that the respondent's application for exemption had been rejected. A question as to the respondent's disqualification having thus been raised, the Speaker referred the question to the Governor of

' •

Madras who forwarded the case to the Commission for 19153 its "opinion" as' required bv article 192 of the Constitu-

J Election Oo1n tion. The respondent having thereupon challenged the mission, India competency of the reference and the action taken there- 8 k vv. k b h G h C . . 'fi d h a a en at• on y t e overnor, t e omn11ss10n not1. e t e res Snbba Rao pondent that his case would be heard on 21st August, - 1952.

Accordingly, the Chief Election Commissioner Patan{!l~ Sastri (who was the sole Member of the Commission for the time · being) went down to Madras and heard the respondent's counsel and the Advocate-General of Madras on 21th August, 1952, when it was agreed that, in case the petitioner's counsel desired to put forward any further representations or arguments, the same should be sent in writing so as to reach the Commission in Delhi by 28th August, 1952, and the Commission should take them into consideration before giving its opinion to the Governor.

On the same day (21st August, 1952) the respondent applied to the High Court under article 226 of the Constitution contending that article 192 thereof was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an Election Tribunal.

He accordingly prayed for the issue of a writ of mandamus or of prohibition directing the Commission to forbear irom proceeding with the reference made by the Governor of Madras who was not, how@ver, made a party to the proceeding. On receipt of the rule nisi issued by the High Court, the Commission demurred to the jurisdiction of the court to issue the writs asked for, on the ground that the Commission was not "within the territory in relation to which the High Court exercised jurisdiction". A further objection to the maintainability of the application was also raised to the effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view of the immunity provided under article 361 (1), and that the Commission itself, which had not to "decide" the question of disqualification, but had merely to give its

196J "opinion", could not be proceeded aglj-inst under article 226. On the merits, the Commission contended that Election Oonimission, India article 192 was, on its true construction, applicable to v. cases of disqualification arismg both before and after Saka Venkata the election and that both the reference of the ques-

Subba Rao tion as to the respondent's disqualification to the

P -. ,-. s. . Governor of Madras and the latter's reference of the

atanb~ ;,' "''" same to the Commission for its opinion were competent and valid.

The application was heard by Subba Rao J. who overruled the preliminary objections and held that article 192 on its true construction applied only to cases of supervening disqualifications and that the Commission had, therefore, no jurisdiction to deal with the respondent's disqualification which arose long before the election took place.

He accordingly issued a writ prohibiting the Commission from proceeding with the enquiry in regard to the question referred to it by the Governor under article 192. The learned Judge, however, granted a certificate under article 132 that the case involved substantial questions of law as to the interpretation of the Constitution, and the Commission has accordingly preferred this appeal.

A preliminary objection was raised by Mr. Mohan Kumaramangalam, who argued the case for the respond-. ent with marked ability, that the appeal brought from the judgment of a single Judge was baned under article 133(3) of the Constitution despite the certificate granted by the learned Judge ovenuling the same objection which was also raised before him. It has been urged that, so far as civi, l matters are concerned, the more comprehensive provisions in article 133(1) (c) for the grant of a certificate of fitness for appeal to the Supreme Court completely overlap article 132(1) which relates only to one specific ground, namely, a substantial question of law being involved as to the interpretation of the Constitution, and that the court's power, therefore, to grant a certificate of fitness on any ground including the ground referred to above, must be deemed to arise under iirticle 133(1) (c), with the result that the CJ\Prcfae of su0h power is eirn\mjed by the o_penmg

• ' •

words of clause (3) of that article which bars an 19.;3 appeal from the judgment, decree or final order of one J d f H, l C Th t h Election Com,. u ge o a 1g 1 ourt. e argumen was song t to mission, India be reinforced by reference to clause (2) of that article v. and the proviso to article 145(3) both of which con- Saka Venkata template appeals involving substantial questions of

Subba Rao

law as to the interpretation of the Constitution being Patanjali sa., tri brought without a certificate having been obtained o. J. under article 132. The argument has no force. 'While it is true that constitutional questions could be raised in appeals filed without a certificate under article 132, the terms of that article make it clear that an appeal is allowed from "any judgment, decree or final order of a High Court" provided, of course, the requisite certificate is given, and no restriction is placed on the right of appeal having reference to the number of Judges by whom such judgment, decree or final order was passed.

Had it been intended lo exclude the right of appeal iu the case of a judgment etc., by one Judge, it would have been easy to include a reference to article 132 also in the opening words of article 133(3), as in the immediately preceding clause. If the respondent's contention were accepted, not only wonld article 132 become redundant so far as it relates to civil proceedings, but the object of the Explanation to that article, which was designed to supersede the decision of the Federal Court in S. Kuppuswami Rao

v. The King (1) and thus to secure a speedy determination of constitutional issues going to the root of a case, would be defeated, as the Explanation is not made applicable to the same expression "final order" used in article 133(1 ).

The whole scheme of the appellate jurisdiction of the Supreme Court clearly indicates that questions relating to the interpretation of the Constitution are placed in a special category irrespective of the nature of the proceedings in which they may arise, and a right of appeal of the widest amplitude is allowed in cases involving such questions. We accordingly overrule the preliminary objection and hold that the appeal is maintainable,

(1) [1947] F.C.R r8o,

ll50

SUPREME COURT REPORTS [1953]

195a Turning now to the question as to the powers of a

Election Cow- High Court under article 226, it will be noticed that mission, India article 225 continues to the existing High Courts the

saka vnkata same jurisdiction and powers as they possessed, imme-

Subba Rao diately Lefore the commencement of the Constitution.

l'at, mjali Sastri Though there had been some conflict of judicial opio. J. nion on the point, it was authoritatively decided by the Privy Council in the Parlakimerli case(') that the High Court of Madrasthe High Courts of Bombay and Calcutta were in the same po8ition-had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and tho power to issue such writs within those limits was derived by the court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all. In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people m the new set up, which they called fundamental right.s, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisiYe interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. But wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise. In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued

(1) 70 1.A. 129:

S.C.R.

SUPREME COURT R8l'OR1'S 1151

by the court cannot run beyond the territories subject 1903 to its jurisdictibn. Secondly, the person or authority Election Oum to whom the High Court is empowered to issue such mi.ssiou, bulin v. writs must be "within those territories'', which clearly suka Venka1a implies that they must be amenable to its jurisdiction Subba Rau either by residence or location within those te1Ti- Patan.iali sa.,1ri tories. o. J.

Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England. Such power formed no part of the original or the appellate jurisdiction of the Court of King's Bench. As pointed out by Prof. Holdsworth (History of English Law, Vol. I, p. 212 et seq.) these writs had their origin in the exercise of the King's prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King's Bench-haheas corpus, that the King may know whether his subjects were lawfully imprisoned or not; certiorari, that he may know whether any proceedings commenced against them are conformable to the law; mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition, to oblige tho inferior tribunals in his realm to function within the limits of their respective jurisdiction. See also the introductory remarks in the judgment in the Parlakimedi case(').

These writs were thus specifically directed to the persons or authorities against whom redress was sought and were made returnable in the court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it neces sary for its effective use that the persons or authorities to whom the court was asked to issue these writs should be within the limits of its tetTitorial jurisdiction.

We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its a9tivities elsewhere exercises jurisdiction within those territorial

(1) 70 I.A. 129, 140 .

Election Comniis8ion, Ind1'.a

Salca V cnkata Subba lfao

SUPREME COURT R.EPORTS [1953]

limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as ;'functioning" within the territorial limits of the High Court and being therefore amenable to its jurisdiction under article 226.

It was, however, urged by the respondent's counsel Patanjali SaBtri that the High Court had jurisdiction to issue a writ to

c. J. the Commission at New Delhi because the question referred to it for decision related to the respondent's right to sit and vote in the Legislative Assembly at Madras and the parties to the dispute also resided in the State of Madras. The position, it was claimed, was analogous to the court exercising jurisdiction over persons outside the limits of its jurisdiction, provided the cause of action arose within those limits. Reliance was placed upon the following observations of the Privy Council in the Parlakimedi case( 1 ): "The question of jurisdiction must be regarded as one of substance and that it would not have been within the competence of the Supreme Court to claim juisdiction over such a matter as the present of issuing certiorari to the Board of Revenue on the strength of its location in the town.

Such a view would give jurisdiction to the Supreme Court in the matter of the settlement of rents of ryoti holdings in Ganjam bet\veen parties not otherwise subject to its jurisdiction, which it would not have had over the Revenue Officer who dealt with the matter at first instance." We cannot accede to this argument.

The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority "within the territories" in relation to which the High Court exercises jurisdiction. Nor is much assistance to be derived from the observations quoted above.

That case arose out of proueedings before a special Revenue Officer for settlement of fair rent for certain holdings within the zemindary estate of Parlakimedi situated beyond the local limits of the original civil jurisdiction of the Madras High Court.

Dissatisfied

(I) 70 !, A, 129.

with the settlement made by the Revenue Officer, the 1953 ryots appealed" to the Board of Revenue which had its Election 00111 _ offices at Madras. The appeal was accepted by a mission, India single member of the Board who reduced the rent as v, desired by the ryots. The zemindar appealed by way of revision to the Collective Board which sanctioned an enhancement. Thereupon the ryots applied to the Patanjali Sastri High Court for the issue of a writ of certiorari to bring

0 J.

Saka Venkata

Subba Rao

up and quash the proceedings of the Collective Board which passed the order complained of in the town of Madras. The Privy Council considered the question of jurisdiction from two separate standpoints:--

"(a) independently of the local civil jurisdiction which the High Court exercises over the Presidency town; or

(b) solely by reason thereof, as au incident of the location of the Board of Revenue within the town."

On question (a), they examined the powers of the Supreme Court at Madras to issue certiomri beyond the Presidency Town under clause 8 of the Charter of

1800, as it was suggested that the High Court succeeded to the jurisdiction and powers of the Supreme Court which had been granted the same powers of issuing prerogative writs as the Court of King's Bench in England throughout the Province, and they recorded their conclusion thus:

"Their Lordships are not of opinion that the Supreme Court would have had any jurisdiction to correct or control a country court of the company deciding a dispute between Indian inhabitants of Ganjam about the rent payable for land in that district."

Then, dealing with question ( b) and referring to their decision in Besant' s case(') that the High Courts of Calcutta, l\fadras and Bombay had power to issue certiorari in the exercise of their local jurisdiction, they held that the principle could not be applied

"to the settlement of rent for land in Ganjam merely on the basis of the location of the Board of Revenue as a body which is ordinarily resident or locl), t<'d within

(1) 46 LA. 176 .

ii54 SUPREME cot:R'r REPORTS [l953j

19.53 the town of Madras, or on the basis that the order

Election 00111• complained of was made within the to\\rn. If so, it mi,.ion, India would seem to follow that the jurisdiction of the High

Court would be avoided by the removal of the Board of Saka T"enlcrtta Revenue beyond the outskrits of the town and that it Subba Rau

would never attach but for the circumstance that an

Patanjali Sastri appeal is brought to, or proceedings in revision taken o. J. by, the Board of Revenue."

Then followed the passage already quoted on which the respondent's counsel laid special stress. It will thus be seen that the decision is no authority for dispensing with th.e necessity of the presence or location, within the local limits of the court's jurisdiction, of the person or authority to whom the writ is to be issued, as the basis of its power to issue it. Their Lordships considered, in the peculiar situation they were dealing with, that the mere location of the appellate authority alone in the town of l\fadrns was not a sufficient basis for the exercise of jurisdiction whereas both the subject-matter, viz., the settlement of rent for la.nds in Ganjarn, and the Revenue Officer authorised to make the settlement at first instance were outside the loc>tl limits of the jurisdiction of the High Court. , If the court in Madras were recognised as having jurisdiction to issue the writ of certiorari to the appellate authority iu Madras, it would practically be recognising the court's jurisdiction over the Revenue Officer in Ganjarn and the settlement of rents for hmds there, which their Lordships held it never had. That w:i, s the "whstance" of the matter they were looking :i, t, and their observations lend no support to the view that if the subject-matter or the cause of action :tnd the parties eoncerned were within the territorial limits of the jurisdiction, the High Court could issue prerogative writs to persons or authorities who are not within those limits. In any case, the decision did not turn on the construction of a statutory provision similar in scope, purpose or wording to article 226 of the Constitution, and is not of much assistance in the construction of that article.

It was said .that it could not have been contem- 19;3 plated that an inh11bitant of the f':ltate of Madras, f. l' d b d c h Electio1i Ooni.· ee mg aggrieve y a threatene mterierence wit mission, India the exercise of his rights in that State by an authority , v. 1 ] D !h' d 'th · d' h ld .Saka Venkata ocatec m e 1 an actmg wt out Jllrts JCt10n, s ou sbba Rao seek his remedy under article 226 in the Punjab - High Court. It is a sufficient answer to this argument Patanbl~ 0 -' 1" of inconvenience to say that, the language of the article being reasonably plain, it is idle to speculate as to what was or was not contemplated.

Our 11ttcntiu11 has been called to certain decisions of High Courts dealing with the situation where the authority claiming to exercise jurisdiction over a matter at first instance is located in one State and the a ppellate authoritv is locatecl in another State. It is not necessary for" the purposes of this appeal to decide which High Court would have jurisdiction in such

circunrntances to issue prerogative writs under article 226.

In the view we have expressed above as to the applicability of article 2-26 to the present case, it is unnecessary to enter upon a discussion of the question whether article 192(1) applies only to members who, having been already elected, have become subject to a disqualification by re11son of events happening after their election; but having heard the point fully argued before us, we think it right to express our opinion thereon, especially as both sides have invited us to do so in view of its general importance.

The relevant provisions of the Constitution on which the determination of the question turns are as follows:

190. (3) If a member of a House of the Legislature ofa State-

(a) becomes subject to any of the disqualifications mentioned in clause (1) of article 191; or

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant,

SUPREME COL'RT REPORTS [1953]

J.?53

191. ( l) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Election Ooni- 1

L ' 1 r< 'l f St t Assemb y or egrs atrve ,, ouncr o a , a e- 11iission, India

(a) if he holds any office of profit under the Saka Jlwkata Government of India or the Government of any State,

Subba Rao specified in the First Schedule, other than an office

Patanjali Sastr1 declared by the Legislature of the State by law not to o. J. disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court; ( c) if he is an undischarged insolvent ; ( d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any Jaw made by Parliament.

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.

193. If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State ............ when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.

As has been stated already, the respondent's conviction and sentence in 1942 disqualified him both for being chosen as, and for being, a member of the Legislative Asseµrbly under article 191(1) (e) read with section 7 of the Representation of the People Act, 1951,

passed by Pa!liament, the period of five years since 1953 his release on 15th August, 194 7, not having elapsed El . 0 b I! h f h 1 Th d J , eclton u.ne1ore t e date o t e e eotion. e respon ent iavmg mission India thus been under a disqualification since before his v'. nomination on 15th March, 1952, could he be said to Saka Venkata have "become" subject to that disqualification within Subba Raa the meaning of article 192? The rival contentions of P 7s . the parties centred round the true interpretation to be atani;_ 'J. astri placed on that word in the context of the provisions quoted above.

The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of members", viz., articles 190 to 193, should be read together, and as articles 191 and 193 clearly cover both pre-existing and supervening disqualifications, articles 190 and 192 should also be similarly understood as relating to both kinds of disqualification. According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word

"become" in articles 190 (3) and 192 (1) is not inapt, in the context, to include within its scope preexisting disqualifications also, as becoming subject to a disqualification is predicated of "a member of a House of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound. Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member, and article 193 which prescribes the penalty for sitting and voting when disqualified, are naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifications ; but it does not necessarily follow that articles 190 (3) and 192 (1) must also be taken to cover both. Their meaning must depend on the language used which, we think, is reasonably plain.

In our opinion these two articles go together and

1158 Sl'PREME COURT REPORTS [1953]

1953 provide a remedy when a member incurs 11 disqualifica-

E . 0 tion after he is elected asamernbrr. Not only do the lection •Omd . b b. ,. - . 1 190(3) d "h wis., ion India WOl' S '' eCOlllCS SU Ject . lll al'tlC e an as v'. become subject" in article 192(1) indicate a change in the

Saka Venkata position of the member after be was elected, but the

Subba Rao provision that his seat is to become thereiipon vacant, -. that is to say, the seat which the member was filling Palanjal1 Sa8/ri h c b h' b d'

c. J t eretQ1ore ecomes vacant on is ecommg is- . qualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting.

The suggestion that the language used in article 190(3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfotched construction and cannot be accepted. The Attorney-General admitted that if the word " is" were substituted for "becomes" or "has become", it would more appropriately convey the the meaning contended for by him, but he was unable to say why it was not used.

It was said that on the view that articles 190(3) and 192(1) deal with disqualifications incurred after election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for, such a disqualification is no ground for challenging the election by an election petition under article 329 of the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent's construction of the constitutional provisions. On the other hand, the Attorney-General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the Parliamentary statute referrred to above.

For the easons indicated we agree with the learned Judge below in holding that articles 190(3) and 192(1)

' •

are applicable only to disqualifications to which a 1953 member beccrmes subject after he is elected as such, Election 0 01,.. and that neither the Governor nor the Commission mission, India has jurisdiction to enquire into the respondent's disv. qualification which arose long before his election.

8 ~",;, h~';!:ta As, however, we have held that the High Court was , . . . not competent under article 226 to issue any pre- 1 ata.nJali 808"' rogative writ to the appellant Commission, the appeal is allowed and thewrit of prohibition issued by the learned Judge is quashed. We make no order as to costs.

Appeal allowed.

Agent for the appellant and the Intervener : G. H. Rajadhyaksha.

Agent for the respondent: S. Siibramaniam.

ASRUMATI DEBI v.

KUMAit ItUPENDRA DEB RAIKOT

AND OTHERS.

[PATANJALI SASTRI C. J., MUKHERJEA,

VIVIAN BOSE and BHAGWATI JJ.]

Letters Patent (Calcntta High Court), els. 18, 15-0rder for tmnsfer of suit 1mde>· cl. 18-Whetlier "jiul, gment"-Appealability -Meaning of "judgment".

An order for transfer of a suit, made under clause 13 of the Letters Patent of the Calcutta High Court is not a "judgment" within the meaning of clause 15 of the Letters Patent and no appeal lies therefrom under the Letters Patent, as it neither affects the merits of the controversy between the parties in the suit itself, nor terminates or disposes of the suit on any ground.

[Meaning of the word "judgment" rliscussed].

Khatizan v. Sonairam (I.L.R. 4 7 Cal. 1104), Jttstices of the Peace for Calcutta v. Oriental Gas Co. (8 Beng. L.R. 433), Dayabhai v. Muiugappa Chettiar (I.L.R. 13 Rang. 457), 'l'uljarain

v. Alagappa (I.L.R. 35 l\fad. 1), Matlmra Sundari v. Haranchandra (I.L.R. 48 Cal. 857), Chandicharan v. Jnanendra (29 C.L.J. 225), £e,, Badin v. Upendra l'>fohan RmJ Chowdhry (39 C.W .N. 155), Kunwar Lal Singh v. Uina Devi (A.I.R. 1945 Nag. 156), Smikrw Deo v. Kalyani (A.LR. 1948 Nag. 85), Sha/lzadi Begum v. Alaknath (I.L.H. 57 All. 983), Shaw Bari "· Sonalwwl Beli R"m (I.hR. 23

a.J.

li'eb. 27