Ali Mohammad Tariq and another vs Election Commission of India and others

J.N. Wazir, C.J.—This is a writ petition filed by Mr. Ali Mohammad Tariq and Kh. Ghulam Ahmad against respondents Nos. 1 to 6

praying for issue of a writ of quo warranto to Bakshi Ghulam Mohammad directing him to refrain from functioning as a member of Parliament

representing Srinagar Parliamentary Constituency, for setting aside the order of the Speaker of Jammu and Kashmir State Assembly dated 19-3-

67 accepting the so called resignation of Bakshi Ghulam Mohammad since no resignation was before him and he had no authority to accept a

resignation not addressed to him but addressed to the Chief Electoral Officer on 7-3-1967 which was not before him, for setting aside the

notification dated 20-3-1967 published in the Gazette of the State of Jammu and Kashmir and lastly it is prayer -that a writ of mandamus be issued

to the State of Jammu and Kashmir, the Chief Electoral Officer Jammu and Kashmir, the Election Commission of India and other authorities of the

State not to act on the strength of the impugned notification intended to be issued by the Election Commission of India calling upon the

Constituency of Safakadal to elect a representative to the Jammu and Kashmir State Legislative Assembly.

Respondent No. 3, State of Jammu and Kashmir did not resist this application, nor have respondents Nos. 1, 2, 4 and 5 done so. Bakshi

Ghulam Mohammad respondent No. 6 is the only contestant.

The facts which gave rise to this petition briefly stated, are these: Bakshi Ghulam Mahammad contested election both to the Legislative

Assembly the State of Jammu and Kashmir and to the House of People. He stood from Safa Kadal Assembly Constituency for the Legislative

Assembly, and for the House of People he selected Srinagar Parliamentary Constituency. He was elected to both the seats. The declaration of the

result of the election so far as Safa Kadal Assembly Constituency is concerned was made on the 26th of February, 1967 whereas the declaration

in regard to his election to Parliament from Srinagar Constituency was made on the 28th of February, 1967. In regard to Safa Kadal Constituency

the declaration of Bakshi Ghulam Mohammad being elected from that Constituency was published in the official Gazette of the State of Jammu and

Kashmir on 6-3-1967 whereas the declaration regarding his election to the House of People from Srinagar Parliamentary Constituency was

published in the Government of India Gazette dated 12th April, 1967. As respondent No. 6 could not retain both the seats he filed his resignation

from Assembly Seat on 7-3-1967 u/s 79 of the Jammu and Kashmir Representation of People Act, 1957. The letter of resignation was addressed

to the Chief Electoral Officer who is described as the authority u/s 79 of the Jammu and Kashmir Representation of People Act and it reads as

under:

During the recent general elections held in Kashmir, I have been declared elected to the State Assembly from the Saffakadal Assembly

Constituency on February 28, 1987. I have also been declared elected to the House of People from Srinagar Parliamentary Constituency on

February 28, 1967.

I hereby tender my resignation from that Membership of the Legislative Assembly, from Safakadal Constituency, u/s 79 of the Jammu and Kashmir

Representation of People Act, 1957.

On 18-3-1967 he wrote the following letter to the Speaker of the State Legislative Assembly:

During the recent General elections, the undersigned contested election from Safakadal (Srinagar Assembly Constituency) and Srinagar

Parliamentary Constituency, I have been declared elected to both the seats on 26th and 28th February respectively.

I propose to retain my seat in the House of People of the Parliament and resign the one in the Legislative Assembly. This has been communicated

to the Chief Electoral Officer under my No. G. N. 212 dated March 7, 1967. I am hereby intimating to you of the same through this letter.

The Speaker accepted the resignation of respondent No. 6 on 19-3-1967 and issued notification in regard to this resignation on 20-3-1967. The

petitioners have sought a writ of quo warranto restraining respondent No. 6 from functioning as a member of Parliament representing Srinagar

Parliamentary Constituency and a writ of Mandamus against Election Commission of India, Chief Electoral Officer Jammu and Kashmir and others

directing them not to act under notification dated 20-3-1967 issued by the Speaker publishing the resignation of respondent No. 6 and it is further

prayed that the resignation accepted by the Speaker also be set aside.

No notice was issued to the Election Commission of India inasmuch as the Election Commission was outside the jurisdiction of the High Court

of Jammu and Kashmir. Respondent No. 4, the Speaker of Jammu and Kashmir Legislative Assembly is represented by Mr. Brian Advocate who

stated that the resignation was presented to the Speaker by respondent No. 6 on 19-3-1967 which was accepted by him and a notification

accepting the resignation was issued on 20-3-1967. The case of the petitioners in regard to respondent No. 6 is that he did not submit his

resignation to the competent authority on 7-3-1967 and therefore his resignation was not a valid resignation. The letter which he wrote to the

Speaker on 18-3-1967 purporting to be his resignation from membership of the Legislative Assembly representing the Safa Kadal Constituency

was beyond time and therefore it could not be validly accepted by the Speaker. It was averred that Bakshi Ghulam Mohammad not having

resigned in accordance with law from the Legislative Assembly, his seat in the House of People fell vacant by operation of law. In paragraph 14 of

the petition, however, it is stated that the present petition calls for an authoritative pronouncement on the scope of Article 101 of the Constitution of

India and section 70 of the Representation of the People Act, 1951. It is not stated by the petitioners as to whether they base their petition on the

provisions of Article 101 of the Constitution or those of section 70 of the Representation of the People Act. They have reproduced Section 70 of

the Representation of the People Act and Rule 91 of the Conduct of Election Rules, 1961 as also Article 101 of the Constitution and Prohibition of

Simultaneous Membership Rules of 1950. Paragraph 11 of the petition shows that the petitioners acknowledge that Article 101 of the Constitution

applies to the case of respondent No. 6 but as he did not tender his resignation to the Speaker within the period prescribed by the rules, so his seat

in Parliament became vacant.

The case of respondent No. 6 was that section 70 of the Representation of the People Act had no application to his case and that rule 91 of the

Conduct of Election Rules, 1961 also did not apply. The only provision which governed his case was Article 101 of the Constitution and the Rules

made there under by the President which are described as Prohibition of Simultaneous Membership Rules, 1950. It was further averred that

according to rule 2 of the said Rules the period at the expiration of which the seat in Parliament of a person who is chosen a member both of

Parliament and of a House of Legislature of a State specified in the First Schedule to the Constitution of India shall become vacant, unless he has

previously resigned his seat in the Legislature of such State, shall be fourteen days from the date of publication in the Gazette of India or in the

Official Gazette of the State, whichever is later, of the declaration that he has been so chosen. It was submitted that as the publication of the

declaration that respondent No. 6 was chosen as member of Parliament was made on 12-4-1967 so at any time before the expiration of fourteen

days starting from 12th April, 1967, i.e. up to 26th April 1967 respondent No 6 could resign from the seat in the State Assembly Under these

circumstances the question that the seat in Parliament having fallen vacant before the expiration of the date did not at all arise. The respondent also

took objections in regard to the maintainability of the writ. It was alleged that the Court had no jurisdiction to entertain the writ petition inasmuch as

the Election Commission of India was beyond the territorial limits of the High Court. It was further alleged that Bakshi Ghulam Mohammad was

required by a writ of quo warranto to refrain from functioning as a member of Parliament and as Parliament was at Delhi and he was expected to

reside in Delhi so no relief could be granted against him because the High Court had no territorial jurisdiction over there.

We will first deal with the question of maintainability of the writ petition. It is true that the Election Commission is located in Delhi and the Court

could not issue a writ beyond its territorial limits and therefore no writ would lie against the Election Commission in Delhi. But there is no substance

in the contention of the learned counsel for the respondent that writ of quo warrantor would not be issued against Bakshi Ghulam Mohammad who

is a permanent resident of the State. He may have to go to Delhi to attend Parliament when it is in session but that would not take away his status

as a permanent resident of the State. Writ of quo warranto can be issued to test the validity of election to the Parliament. In other word,

respondent No. 6 can be asked to explain as to how he can claim to exercise functions of a member of Parliament. The Court can declare the

office to be vacant in case it comes to the conclusion that Parliamentary seat has become vacant due to operation of law. We, therefore, overrule

the objections of the respondent in regard to the maintainability of the writ petition.

The next question that falls for determination is whether Article 101 of the Constitution is applicable to this case and the period for submitting

resignation is governed by the Prohibition of Simultaneous Membership Rules of 1950 or section 70 of the Representation of the People Act, 1950

applies to the present case and the period within which resignation has to be tendered by a member is provided by rule 91 of the Conduct of

Election Rules of 1960. The counsel for the petitioners has argued that section 70 of the Representation of People Act was applicable inasmuch as

respondent No. 6 was holding more than one seat. According to him it was immaterial whether he held both the seats in the same House or one

seat in the State Legislature and the other in the Parliament. His contention was that rule 91 of the Conduct of Election Rules contained omnibus

provisions covering resignations in all cases of elections whether under the Representation of People Act or Article 101 of the Constitution.

According to him rule 91 was a comprehensive rule and as it was framed subsequent to the framing of the Constitution and the Prohibition of

Simultaneous Membership Rules so it should be presumed that the rule framed later would prevail over the rule framed earlier. He argued that it

was immaterial whether the rules were framed by the Government or by the President inasmuch as the rules framed by the Government are also

framed in name of the President According to him no distinction can be made between the rules made by the Government acting u/s 28 of the

Representation of the People Act and the Rules made by the President under the Constitution In the alternative it was contended that even if the

Prohibition of Simultaneous Membership Rules, 1950 were held applicable respondent No. 6 was declared elected by the notification of the

Election Commission published in the Government of India Gazette dated 4-3-1967 and publication of the declaration of the respondent No. 6

having been chosen as member of the State Legislature on 6-3-1967 so the period of 14 days had to be counted from the 6th of March 1967 and

as the letter dated 18-3-1967 which was presented in person by respondent No. 6 on 19-3-1967 to the Speaker who accepted it, was not an

expression of his will to resign so the letter could not amount to resignation. According to the learned counsel for the petitioners the resignation

dated 7-3-1967 not having been addressed to the appropriate authority could not be taken to be a valid resignation in the eye of law. As such

respondent No. 6 continued to be a member of the State Legislature and as he had not resigned within the time prescribed so the seat in

Parliament had fallen vacant. A careful examination of the provisions of the Representation of the People Act as also Articles 101 and 190 of the

Constitution read with the Prohibition of Simultaneous Membership Rules makes it abundantly clear that the arguments of the learned counsel for

the petitioners have no substance. Section 70 of the Representation of the People Act reads as under -

If a person is elected to more than one seat in either House of Parliament or in the house or either House of the Legislature of a State, the unless

within the prescribed time he resigns all but one of the seats by Writing under his hand addressed to the Speaker or Chairman, as the case may be.

or to such other authority or officer as may be prescribed, all the seats shall become vacant.

This section has no application to the facts of the present case inasmuch as Union Parliament cannot legislate in respect of any legislative matter

pertaining to the State Legislature. The definition of 'election' is given in section 2(d) of the Representation of the People Act and is as under:

'election' means an election to fill a seat or seats in either House of Parliament or either House of the Legislature of State other than State of Jammu

and Kashmir.

So from the definition of election it would be clear that section 70 of the Representation of the People Act does not cover election to either House

of the Jammu and Kashmir State Legislature. Article 327 of the Constitution which gives power to Union Parliament to legislate upon election

matters reads as under :

Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in

connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of

electoral rolls, the delimitation of constituencies and all other matters necessary for securing due constitution of such House or Houses.

This Article also has no application to the State of Jammu and Kashmir which clearly means that the Union Parliament cannot legislate in respect of

any matter pertaining to election to the J & K State legislature. This is so because the State of Jammu and Kashmir has its own Representation of

the People Act which covers the matters pertaining to elections to the Legislative Assembly and Legislative Council of the State of Jammu and

Kashmir. The argument of the counsel for the petitioners that section 70 of the Representation of the People Act applies to elections to the

Legislative Assembly and Legislative Council of the State of Jammu and Kashmir or to resignations from all but one of the seats of that Legislature

is devoid of force.

The learned counsel for the petitioners then argued that section 70 of the Representation of the People Act does not apply to elections to the

Jammu and Kashmir Legislative Assembly but applies only in respect of election to Parliament from the Jammu and Kashmir State Parliamentary

Constituency and rule 91 of the Conduct of Election Rules which is a general provision lays down the procedure for resignation of seats in case of

election to more seats than one in a House and fixes the time within which a person may resign all but one of the seats in either House of Parliament

or in the House or either House of the Legislature of the State to which he has been elected. It is contended that even if the case of respondent No.

6 falls under Article 101 Rule 91 of the Conduct of Election Rules 1961 applies for the purpose of resignation from the seat in the Legislative

Assembly of the State. In order to determine the applicability of rule 91 of the Conduct of Election Rules it will be necessary to examine the

relevant provisions of the Constitution and also sections 68, 69 and 70 along with rule 91 of the aforementioned rules referred to by the learned

counsel for the petitioners. The phraseology adopted in Section 70 of the Representation of the People Act does not cover a case in which a

person is elected both to Parliament and to either House of the State Legislature Respondent No. 6 was elected to the State Legislative Assembly

and to the House of People. His case is covered by Article 101 of the Constitution alone which is applicable to the State of Jammu and Kashmir.

Article 327 provides that Parliament may make laws subject to the provisions of the Constitution in all matters relating to, or in connection with,

elections to either House of Parliament or to the House or either House of the Legislature of a State. While the Constitution under Article 327 has

allowed Parliament to make laws relating to elections, it has by using the words ""Subject to the provisions of this Constitution"" kept the provisions

of Articles 101 and 190 intact and Parliament cannot, therefore, make laws covering the Counting envies envisaged by the aforesaid Articles,

Parliament enacted the Representation of the People Act and in that Act provision was made in regard to all contingencies which might arise but

which were not covered by Articles 101 and 190 of the Constitution. The scheme of the Representation of the People Act and Constitution would

show that almost every contingency has been provided for either in the Representation of the People Act or in the Constitution. In this respect

reference may be made to S. 68(1) of the Representation of the People Act which reads as under :

Any person who is chosen a member of both the House of People and the Council of States and who has not taken his seat in either House may,

by notice in writing signed by him and delivered to the Secretary to the Election Commission within ten days from the date, or the later of the dates,

on which he is so chosen, intimate in which of the Houses he wishes to serve, and thereupon, his seat in the House in which he does not wish to

serve shall become vacant.

In such a contingency the question of resignation does not at all arise as on the intimation being received by the Secretary to the Election

Commission the seat in the House in which the person does not want to serve falls vacant. Sub-section (2) of section 68, Representation of the

People Act provides as under:

In default of such intimation within the aforesaid period, his seat in the Council of States shall, at the expiration of that period, become vacant.

So in either case provision is made by which a person elected can retain only one seat. In case there is a default the seat in the Council of States

falls vacant at the expiration the prescribed period. The next contingency is provided for in sub-section (1) of section 69 of the Representation of

the People Act which reads as follows:

If a person who is already a member of the House of the People and has taken his seat in such House, is chosen a member of the Council of

States, his seat in the House of the People shall, on the date on which he is so chosen, become vacant.

The converse proposition is provided for in sub-section (2) of section 69 which is as follows:

If a person who is already a member of the Council of States and has taken his seat in Council is chosen a member of the House of the People, his

seat in the Council of State shall, on the date on which he is so chosen, become vacant.

The above two sections 68 and 69 are followed by section 70 which covers the case of multiple elections to the same House Article 190 of the

Constitution reads as under :

No person shall be member of both Houses of the Legislature of a State and provision shall be made by the Legislature of the. State by law for the

vacation by a person who is chosen a member of both Houses of his seat in one House or the other.

No person shall be a member of the Legislatures of two or more States specified in the First Schedule and if a person is chosen a member of the

Legislature of two or more such States, than, at the expiration of such period as may be specified in rules made by the President, that person's seat

in the Legislatures of all such States shall become vacant unless he has previously resigned his seat in the Legislatures of all but one of the States.

x x x x x x

This Article of the Constitution as would appear contemplates a case of prohibition of being a member of Houses of a State Legislature and the

case of a person being elected as a member of the Legislatures of two or more States. In clause (1) Parliament is given power to make provision

for the vacation of the seat and in the other President has been given power to make rules prescribing the period within which the resignation is to

be made. Article 101 of the Constitution provides as under:

No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is

chosen a member of both Houses of his seat in one House or the other

No person shall be a member of both of Parliament and of a House of the Legislature of a State, and if a person is chosen a member both of

Parliament and of a House of the Legislature of a State, then, at the expiration of such period as may be specified in rules made by the President,

that person's seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State.

X X X X X X X X.

A plain reading of the above Article would show that Parliament is given power to make provision by law for the vacation by a person who is

chosen a member of both Houses of Parliament of his seat in one House or the other But the position is different in a case covered by clause (2) of

the same Article and it is only the President who can specify by rules the period at the expiration if which his seat in Parliament shall become vacant

if that person has not previously resigned his seat in the State Legislature Parliament therefore is not given power to prescribe any period other than

the period already prescribed in the rules made by the President under Article 101(2) of the Constitution. The Prohibition of Simultaneous

Membership Rules of 1950 are made by the President under the authority conferred upon him by Article 101(2). Rule 2 of these Rules provides

the period at the expiration of which seat in Parliament becomes vacant unless the person had previously resigned his seat in the Legislature of the

State within the prescribed period.

It has been argued that the rules made by the President under Article 101(2) have been superseded by the Conduct of Election Rules made

under the Representation of the People Act passed by Parliament and rule 91 thereof prescribes a period of 14 days from the date of election

within which a person may resign all but one of the seats to which he has been elected. In our view the scope of the Prohibition of Simultaneous

Membership Rules and that of rule 91 of the Conduct of Election Rules is entirely different and the question of super session by latter one of the

former does not arise While clause (1) of Article 101 prohibits simultaneous membership of both Houses of Parliament clause (2) thereof prohibits

simultaneous membership of a House of Parliament and of a State Legislature. While question of vacation of one of the seats in the former case is

left to be determined by law made by Parliament, in the latter case it is to be determined by rules made by the President Analogous to the situation

dealt with in clauses (1) and (2) of Article 101 there is a situation arising when a person is elected to more than one seat in the same House of

Parliament or of a State Legislature For this provision has been made by Parliament legislating in its power over elections which is section 70 of the

Representation of the People Act It envisages there contingencies.

a person may be elected to more than one seat in either House of Parliament, i.e. either in the House of the People he may have more than one

seat or in Council of States he may be elected to more than one seat:

A person may be elected to more than one seat in a House of a State Legislature consisting of only one House;

He may be elected to more than one seat in either House of the Legislature of a State - he may have more than one seat in the Legislative

Assembly or he may have more than one seat in the Legislative Council.

In regard to the multiple elections to the same House rule 91 of the Conduct of Election Rules provides the time of 14 days from the date of his

election within which a person may resign all but one of the seats in either House of Parliament or in the House or either House of the Legislature of

a State to which he has been elected The phraseology of Section 70 of the Representation of the People Act is the same as the Phraseology used

in rule 91 of the Conduct of Election Rules. The case of respondent No. 6 does not fall within the ambit of rule 91 of the Conduct of Election Rules

As pointed out above, respondent No 6 has been elected to a seat in the State Legislative Assembly and to one seat in the House of the People,

whereas u/s 70 of the Representation of the People Act a person Should have been elected to more than one seat in either House of Parliament or

the House or either House of the Legislature of a State. The case of respondent No. 6 does not fall in any of the clauses mentioned either in section

70 of the Representation of the People Act or rule 91 of the Conduct of Election Rules. Rule 91 of the Conduct of Election Rules therefore has no

application to the case which is covered by Article 101 (2) of the Constitution and the question of R. 91 superseding the Prohibition of

Simultaneous Membership Rules made under Article 101(2) of the Constitution does not arise.

The next question that falls for determination is the point of time from which the period of limitation will commence. The period of 14 days at the

expiration of which the seat in Parliament was to fall vacant, according to the counsel for respondent No. 6, should be counted from the date of

publication in the Gazette of India of the declaration that respondent No. 6 had been so chosen, as provided in rule 2 of the Prohibition of

Simultaneous Membership Rules. According to the counsel for the petitioners time will run from 28-2-1967 when the election result was declared.

As pointed out above rule 91 of the Conduct of Election Rules has no application to the case of the respondent which falls under Article 101(2) of

the Constitution The only rule which would cover the respondent's case will be rule 2 of the Prohibition of Simultaneous Membership Rules. The

counsel for the respondent has argued that the declaration of the result of Parliamentary election was notified in the Gazette of India on 12-4-1967

and the period of 14 days will commence from that date. It is contended that the 'declaration' that respondent No. 6 had been so chosen refers to

declaration u/s 66 of the Representation of the People Act which provides:

When the counting of the votes has been completed, the returning officer shall, in the absence of any direction by the Election Commission to the

contrary, froth with declare the result of the election in the manner provided by this Act or the rules made there under

Publication of the declaration has to be made u/s 67 of the Representation of the People Act which provides:

As soon as may be after the result of an election has been declared, the returning officer shall report the result to the appropriate authority and the

Election Commission and in the case of an election to a House of Parliament or of the Legislature of a State also to the Secretary of that House

and the appropriate authority shall cause to be published in the Official Gazette the declarations containing the names of the elected candidates.

The date of publication of the result therefore, in pursuance of section 67 according to the counsel for respondent No. 6 can only be the point of

time from which the period of limitation will commence. It is not necessary for us to go into the question whether the period of limitation will start

from the date of publication of the declaration in the Gazette of India or from the date of notification issued in the Official Gazette mentioning the

names of persons elected for the various constituencies of the House of the People. In the present case the result of election to the State Assembly

of respondent No. 6 was declared on 26-2-1967 and of election to Parliament on 28-2-1967. Notification showing the name of respondent No. 6

having been elected to the House of the People was issued on 4th March, 1967 whereas it is admitted by the petitioners that in the State Gazette

publication was made of the declaration of election of respondent No. 6 to the State Assembly from Safakadal Constituency on the 6th of March.

1967 6th March 1967 being later, the time will commence from that date for submitting resignation from the Legislative Assembly of the State.

Respondent No. 6 addressed a letter to the Chief Electoral Officer in which he mentioned:

I hereby tender my resignation from the Membership of the Legislative Assembly from Safa Kadal Constituency, u/s 79 of the Jammu and Kashmir

Representation of People Act, 1957.

Another letter addressed to the Speaker of the Legislative Assembly was sent by that respondent on 18th March, 1967 in which he stated as

under:

I propose to retain my seat in the House of People of the Parliament and resign the one in the Legislative Assembly. This has been communicated

to the Chief Electoral Officer under my No. G. N. -212 dated March 7th, 1967. I am hereby intimating to you of the same through this letter.

The counsel for the petitioners has argued that this letter which was written on the 18th of March, 1967 did not categorically indicate that

respondent No. 6 had resigned his seat in the Legislative Assembly He only indicated to do so but had not actually resigned. We have very

carefully perused the letter which was written by respondent No. 6 to the Chief Electoral Officer and the subsequent letter which he had written on

the 18th of March. 1967 to the Speaker and we are of the view that respondent No. 6 had clearly expressed in his letter to the Speaker that he

had resigned from the membership of the Legislative Assembly His intention could be gathered from what he had stated in his letters together with

attendant circumstances. In his previous letter to the Chief Electoral Officer he clearly mentioned that he resigns from the membership of the

Legislative Assembly In the subsequent letter he repeated the same words and said ""and resign the one in the Legislative Assembly"" The Speaker

understood the intention of respondent No. 6 and accepted his resignation from the membership of the Legislative Assembly on the 19th of March,

1967 which was notified on the 20th. There is no special form prescribed in the Representation of the People Act of the State in terms of which

resignation had to be tendered. Under these circumstances the intention of the person putting in resignation can be gathered from the words which

he used in the document and there can be no doubt that the words used by respondent No. 6 in his letter dated 18-3 1967 show that he tendered

resignation from the membership of the Legislative Assembly We are satisfied that the resignation was tendered within 14 days from the 6th of

March, 1967 to the Speaker of the Legislative Assembly who accepted it and notified the same on the 20th of March, 1967.

In the result this petition has no force and is dismissed. In the circumstances of the case the parties are left to bear their own costs.

S. Murtaza Fazl Ali, J.

I agree.