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Judgment
C. J.
(1) 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 19367 accepting the socalled
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 731967 which was not before him, for setting aside the notification dated 2031967 published
in the Gazette of the State of Jammu and Kashmir and lastly it is prayed 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.
(2) 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
(3) The facts which gave rise to this petition, briefly stated, are these.
(4) Bakshi Ghulam Mohammad contested election both to the Legislative Assembly of 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 February, 1967. In regard to Safa Kadal Constituency the declaration of Batshi Ghulam Mohammad being
elected from that Constituency was published in the official Gazette of the State of Jammu and Kashmir on 631967 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. 967. As respondent No 6 could not retain both the seats he filed his resignation from Assembly Seat on 73L967 under section 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 under section 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 to the State Assembly from the Saffakadal Assembly Constituency on
28th February 1967.
(5) I have also been declared elected to the House of People from Srinagar Parliamentary Constituency on 28th February 1967.
(6) I hereby tender my resignation from the Membership of the Legislative Assembly, from Safakadal Constituency, under section 79 of the Jammu
and Kashmir.
(7) Representation of People Act, 1957. On 1831967 he wrote the following letter to the Speaker of the State Legislative Assembly :
During the recent General elections, the undersigned contested election from Safakadal (Srinngar Assembly Constituency) and Srinagar
Parliamentary Constituency, I have been declared elected to both the seats on 26th and 28th February respectively.
I proposed 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. H. 212 dared 7th March 1967. I am hereby intimating to you of the same through this letter.
(8) The Speaker accepted the resignation of respondent No. 6 on 1931967 and issued notification in regard to this resignation on 2031967 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 20th March 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.
(9) No ' notice was issued to the Election Commission of India in as much 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. Bhan
Advocate who stated that the resignation was presented to the Speaker by respondent Mo. 6 on 1931967 which was accepted by him and a
notification accepting the resignation was issued on 2031967. The case of the petitioners in regard to respondent No. 6 is that he did not submit his
resignation to the competent authority on 731S67 and therefore his resignation was not a valid resignation. The letter which he wrote to the
Speaker on 1831967 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, 1S61 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 in later, of the declaration that he has been so chosed. It was submitted that as the publication of the declaration that
respondent No, 6 was chosen as member of Parliament was made on 1251967 so at any time before the expiration of fourteen days starting from
12th April 1967, i. e. upto 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 in as much 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,
(10) 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 warranto 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
words, 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.
(11) 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 1S50 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 Ace was applicable in as much
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 in as much 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 under
section 28 of the Representation of 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, 19 0 were held applicable, respondent NO. 6 was declared elected by the notification
of the Election Commission published in the Government of India Gazette dated 431967 and publication of the declaration of the respondent No.
6 having been chosen as member of the State Legislature on 631967 so the period of 14 days had to be counted from the 6th March 1967 and as
the letter dated 1831967 which was presented in person by respondent No. 6 on 1031967 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 731967 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 People Act as also Article 101 and 190 of the
Constitution read with the Prohibition of Simultaneous Membership Rules makes it abundantly i clear that the arguments of the learned counsel for
the petitioners have no substance. Section 70 of the Representation of 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, then, 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.
(12) This section has no application to the facts of the present case in as much 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 of seats in either House of Parliament or either House of the Legislature of State other than State of
Jammu and Kashmir''.
(13) 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
(14) 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 Counsel 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 of 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 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 afore mentioned 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 10,1 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 the 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
Article 101 and 190 in tact and Parliament cannot, therefore, make laws covering the contingencies 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 section 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 Counsel 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.
(15) 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. Subsection (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 Counsel of States shall at the expiration of that period, become vacant.
(16) 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 State stalls vacant at the expiration of the prescribed period. The next contingency is provided for in subsection (1) of section 69 of the
Representation of the People Act which reads asfollows :
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.''
(17) The converse proposition is provided for in subsection (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 such Council is chosen a member of the House of the
People, his seat in the Council of States shall, on the date on which he is so chosen, become vacant.
(18) 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 a 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.
(2) No person shall be a member of the Legislature 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, then, at the expiration of such period as may be specified in rules made by the Presidents 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.''
xxx x
(19) This Article of the Constitution as would appear contemplates a case of prohibition of being 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 tee vacation by a person who is
chosen a member of both Houses of his seat in one House or the other.
(2) 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 a
Parliament and of a House of a 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
(20) 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 of 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 prescribed period.
(21) 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 supersession 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 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 three contingencies :
1 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.
3 He may be elected to more than one seat in either House of the Legislature of a State, he may have more than the seat in the Legislative
Assembly or he may have more than one seat in the Legislative Council.
(22) 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 seat 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 under section 70 of the Respresentation 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 Representationof 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 rule 91
superseding the Prohibition of Simultaneous Membership Rulesmade under Article 101 (2) of the Constitutions does not arise.
(23) The next question that falls for determination is the point of time from which the period for 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 or the Prohibition of
Simultaneous Membership Rules. According to the counsel for the petitioners time will run from 2821967 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 1241967
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 under section 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, forthwith declare the result of the election in the manner provided by this Act or the rules made there under.''
(24) Publication of the declaration has to be made under section 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.1'
(25) 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 that 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 2621967 and of election to Parliament on 28267. 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 March
1967 being latter,. 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, under section 79 of the Jammu
and Kashmir Representation of People Act, 1957.
(26) Another letter addressed to the Speaker of the Legislative Assembly was sent by the respondent on 18th March, 1967 in which he stated as
under :
1 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 7th March. I am hereby intimating to you of the same through this letter.
(27) This 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 bur 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 ex , pressed 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
attendance 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 19rh
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 18367 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.
(28) 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.