# DAYAL, S. M. SIKRI AND v. RAMASWAMI, JJ.J

- **Citation:** [1965] 3 S.C.R. 53
- **Court:** Supreme Court of India
- **Decided:** 1965-02-12
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dayal-s-m-sikri-and-v-ramaswami-jj-j-3513
- **Pages:** 10

## Headnote

BRUrijl)ABAN NAYAK
V.
A
ELECTION COMMISSION OF INDIA AND ANOTHER
February 12, 1965
IP. B. GAJENDRAGADKAR, C. J.,
M. HIDAYATULLAH, RAGHUBAll
DAYAL, S. M. SIKRI AND V. RAMASWAMI, JJ.J
Constitution of India, Art. 192(1) and (2)1-Who can raise question
B as to disqu.aLification of sitting member-Whether question has to
be raised on floor of the Assembly and referred to the Governor by
Speaker-Enquiry to be held by Governor or Election Commission?
The appellant was elected •to the Orissa Legislative Assembly
in 1961. In 1964 respondent No. 2 made a complaint to the Governor
alleging that the appellant had incurred a disqualification subsequent
to his election as contemplated in Art. 191(1) (e) of the ConstituC tion read with s. 7 of the Representation of the People Act
(Act 43 of 1951). The Chief Secretary Orissa forwarded the said
complaint •to respondent No. 1, the Election Commission of India,
under the instructions of the .Governor, requesting it to make
enquiry into the complaint and give its opinion. Accordingly respondent No. 1 served notice on the appellant and called upon him
to submVt his reply. The appellant challenged the jurisdiction of
D resporu:l!ent No. 1 to conduct the enquiry and filed a writ petition
in the High Court. On its being dismissed he appealed to this Court
by special leave.
It was contended on behalf of the appellant that no question
untler Art. 192(1) had arisen in the case as a question relating to
the disqualification of a member under Art. 191(1) (e) could not be
raised by an ordinary citizen. It was urged that considering the
E
context of Art. 192 and the provisions of Art. 199 the question
could only be raised on the floor of the House and thereafter
referred to the Governor by the Speaker of the Assembly. It was
further con tended that only the Governor who had to give the
decision could hold the enquiry, and the Election Commission was
only to give its opi.n'on on the materials forwarded to it by the
Governor.
F
HEl;D: (i) The argument that no question had arisen under
Art. 192(1) could not be accepted. What Art 192(1) requires is that
a question should anise; how ft arises, by whom it is raised, in what
circumstances it is ra'sed are not relevant for the purpose of the
application of this clause. f59 Hl
The wortls in Art. 192(1) that "the question shall loe referred
for the decision of the Governor" merely emnhasise that any quesG tion of the type contemplated in the said clause shall be decided
by the Governor and Governor alone: no other authority, including
the courts, can decide it. If the intention was that the question
must be raised first in the legislative Assembly and after a prima
facie examination by the Speaker it should be referred by him to
the Governor, Art. 192(1) would have been worded in an entirely
different manner. f59 B-Cl
H
The object of Art 192 is that no member wh\> has incurred a
disqualification under Art. 191 (1) should be allowed •to con1Jinue
as a member. The Constitution itself in /\rt 190(3)
provides for
the vacation of the seat of such a member. Further it is in the
interests of the member's constituency that no loμger being en·
titled to the status of a m"mber, he should be removed. In view
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of these considerations a citizen is certainly entitled to make a
complaint to the Governor about the <lisqualification incurred by
a member under Art. 191(1). f59 E-Gl
(ii) The enquiry for the purpose of the decision under Art. 192
has to be held by the Election Commission and not by ·the Governor. When the Governor pronounces his decision under Art. 192(1)
he is not require<l to consult his Council of Ministers; he has
merely to forward 'the question to the Election Commission for its
opinion, and as soon as the opinion is received, "he shall act according to such opinion". It is the opinion of the Election Commission
which is in substance decisive, and it is legitimate that the Commission should proceed ·to try the complaint before

## Text

BRUrijl)ABAN NAYAK
V.
A
ELECTION COMMISSION OF INDIA AND ANOTHER
February 12, 1965
IP. B. GAJENDRAGADKAR, C. J.,
M. HIDAYATULLAH, RAGHUBAll
DAYAL, S. M. SIKRI AND V. RAMASWAMI, JJ.J
Constitution of India, Art. 192(1) and (2)1-Who can raise question
B as to disqu.aLification of sitting member-Whether question has to
be raised on floor of the Assembly and referred to the Governor by
Speaker-Enquiry to be held by Governor or Election Commission?
The appellant was elected •to the Orissa Legislative Assembly
in 1961. In 1964 respondent No. 2 made a complaint to the Governor
alleging that the appellant had incurred a disqualification subsequent
to his election as contemplated in Art. 191(1) (e) of the ConstituC tion read with s. 7 of the Representation of the People Act
(Act 43 of 1951). The Chief Secretary Orissa forwarded the said
complaint •to respondent No. 1, the Election Commission of India,
under the instructions of the .Governor, requesting it to make
enquiry into the complaint and give its opinion. Accordingly respondent No. 1 served notice on the appellant and called upon him
to submVt his reply. The appellant challenged the jurisdiction of
D resporu:l!ent No. 1 to conduct the enquiry and filed a writ petition
in the High Court. On its being dismissed he appealed to this Court
by special leave.
It was contended on behalf of the appellant that no question
untler Art. 192(1) had arisen in the case as a question relating to
the disqualification of a member under Art. 191(1) (e) could not be
raised by an ordinary citizen. It was urged that considering the
E
context of Art. 192 and the provisions of Art. 199 the question
could only be raised on the floor of the House and thereafter
referred to the Governor by the Speaker of the Assembly. It was
further con tended that only the Governor who had to give the
decision could hold the enquiry, and the Election Commission was
only to give its opi.n'on on the materials forwarded to it by the
Governor.
F
HEl;D: (i) The argument that no question had arisen under
Art. 192(1) could not be accepted. What Art 192(1) requires is that
a question should anise; how ft arises, by whom it is raised, in what
circumstances it is ra'sed are not relevant for the purpose of the
application of this clause. f59 Hl
The wortls in Art. 192(1) that "the question shall loe referred
for the decision of the Governor" merely emnhasise that any quesG tion of the type contemplated in the said clause shall be decided
by the Governor and Governor alone: no other authority, including
the courts, can decide it. If the intention was that the question
must be raised first in the legislative Assembly and after a prima
facie examination by the Speaker it should be referred by him to
the Governor, Art. 192(1) would have been worded in an entirely
different manner. f59 B-Cl
H
The object of Art 192 is that no member wh\> has incurred a
disqualification under Art. 191 (1) should be allowed •to con1Jinue
as a member. The Constitution itself in /\rt 190(3)
provides for
the vacation of the seat of such a member. Further it is in the
interests of the member's constituency that no loμger being en·
titled to the status of a m"mber, he should be removed. In view
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(1965] 3 S.C.B.
of these considerations a citizen is certainly entitled to make a
complaint to the Governor about the <lisqualification incurred by
a member under Art. 191(1). f59 E-Gl
(ii) The enquiry for the purpose of the decision under Art. 192
has to be held by the Election Commission and not by ·the Governor. When the Governor pronounces his decision under Art. 192(1)
he is not require<l to consult his Council of Ministers; he has
merely to forward 'the question to the Election Commission for its
opinion, and as soon as the opinion is received, "he shall act according to such opinion". It is the opinion of the Election Commission
which is in substance decisive, and it is legitimate that the Commission should proceed ·to try the complaint before it gives its
opinion. f60 D-Hl
[Legislation to vest Election Commlssion with powers of. a
Commission under the Commissions of Enquiry Act, 1952, recommended. l f62 Bl
CIVIL APPELLATE )JuRISDIOTION: Ci;vil Appeal No. 50 of
1965.
Appeal by special leave from the order dated January 6.
1965 of the Circuit Bench of the Punjab High Court at Delhi in
Civil Writ No. 8-D of 1965.
M. C. Setalvad, Ravinder Narain, J. B. Dadachanji and
0. C. Mathur, for the appellant.
C. K. Daphtary, Attorney-General, S. V. Gupte, SolicitorGeneral, B .. R. L. Iyengar and R. H. Dhebar, for the respondent
No. !.
Santosh Chatterjee, B. B, Ratho and M. L. Chhibber, for
respondent No. 2.
The Judgment of the Court was delivered by
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Gajendragadkar, C.J. The principal question which this appeal
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by special leave raises for our decision relates to the construction of Article 192 of the Constitution. The said question arises
in this way. The appellant Brundaban Nayak was eledted to the
Legislative Assembly of Orissa from the Hinjili Constituency in
Ganjam district in 1961, and was appointed one of the Ministers
of the Council of Ministers in the said State. On August 18, 1964,
G
respondent No. 2, P. Biswal, applied to the Governor of Orissa
alleging that the appellant had incurred a disqualification subsequent to his election under Art. 19l(l)(e) of the Constitution read
with section 7 of the Representation of the People Act, 1951
(No. 43 of 1951) (hereinafter called the Act). In his application,
respondent No. 2 made several allegations in support of his conH
tention that the appellant had become disqualified to be a
member of the Orissa Legislative Assembly. On September 10,
1964, ·the Chief Secretary to the Government of Orissa forwarded
the said complaint. to respondent No. I, the Election Commission
of•
India, under the instructions of the Governor. In this communication, the Chief Secretary stated thl!t a question had arisen
under Article I 9 I (I) of the Constitution whether the member in
BRUNDABAN v. ELECTION COMMISSION (Gajendragq.dkar, 0.J.)
55
A question had been subject to the disqualification alleged by respondent No. 2 and so, he requested respondent No. l in the name
of the Governor to make suoh enquiries as it thinks fit and give
its opinion for communication to the Governor to enable him
to give a decision on the question raised.
B
On November 17, 1964, respondent No. 1 served a notice on.
the appellant forwarding to him a copy of the letter received by
it from respondent No. 2 dated the 4th November, 1964. Thenotice intimated to the appellant that respondent No. l proposed
to enquire in the matter before giving its opinion on the Governor's.
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reference, and, therefore, called upon him to submit on or before
the 5th December, 1964, his reply with supporting affidavits and
documents, if any. The appellant was also told that the parties;
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would be heard in person or through authorised counsel at 10-30
A.M. on· the 8th December, 1964, in the office of respondent No. I
in New Delhi.
On December l, 1964, the appellant sent a telegram to respondent No. 1 requesting it to adjourn the hearing of the matter.
On the same day, he also addressed a registered letter to respondent No. l making the same request. Respondent No. 2 objected
to the request made by the appellant for adjourning the hearing of
the complaint. On December 8, 1964. respondent No. l took up
this matter for consideration: Respondent No. 2 appeared by his
counsel Mr. Chatterjee, but the appellant was absent. Respondent
No. 1 took the view that an enquiry of the nature contemplated
by Art. 192(2) must be conducted as expedtiously as possible,
and so, it was necessary that whatever his other commitments
may be, the appellant should arrange to submit at least his statement in repliy to the allegations made by respondent No. 2, even
if he required some more time for filing affidavits and I or documents in support of his statement. Even so, respondent No. 1
gave the appellant time until the 2nd January, 1965, 10-30 A.M.
when it ordered that the matter would be heard.
On January 2, 1965, the appellant appeared by his counsel
Mr. Patnaik and respondent No. 2 by his counsel Mr. Chatterjee.
On this occasion, Mr. Patnaik raised the question about the
maintainability of the proceedings before respondent No. 1 and
its competence to hold the enquiry. Mr. Chatterjee repelled Mr.
Patnaik's contention. Respondent No. 1 over-ruled Mr. Patnail-'s
contention and recorded its conclusion that it was competent to
hold the enquiry under Art. 192(2). Mr. Patnaik then asked for
adjournment and made it clear that he was making the motion
for adjournment without submitting to the jurisdiction of respondent No. I. In view of" the attitude adopted bv Mr. Patnaik,
respondent No. 1 took the view that it would be pointless to adjourn
the proceedings. and so, it heard Mr. Chatterjee in support of the
case of respondent No. 2. After hearing Mr. Chatterjee respondent No. I reserved its orders on the enquiry and noted that its
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opinion would be communicated
to the Governor as early as
A
possible.
When matters had reached this stage before respondent No.
1, the appellant. moved the Punjab High Court under Art. 226
of the Constitution praying that the enquiry which respondent
No. 1 was holding, should be quashed on the ground that it was
B
incompetent and without jurisdiction. This writ petition was summarily dismissed by the. said High Court on January. 6, 1965.
Thereafter, the appellant applied to this Court for special leave
on January 8, 1965, and special leave was granted to him on
January 14, 1965. The appellant then moved this Court for stay
of further proceedings before respondent No. 1, and the said
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prayer was granted. When special leave was granted to the appellant, this Court had made an order that the preparation of the
record and the filing of statements of the case should be dispensed
with and the appeal should be heard on the paper-book filed
along with the special leave petition and must be placed for hearing within three weeks. That is how the matter has come before D
us for final disposal.
Since the Punjab High Court had dismissed the writ petition
filed by the appellant in limine, neither of the two respondents
had an opportunity to file their replies to the allegation made by
the appellant in his writ petition. That is why both respondent
No. I and respondent No. 2 have filed counter-affidavits in the
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present appeal setting out all the relevant facts on which they
wish to rely. The appellant has filed an affidavit-in-reply.
All
these documents have been taken on the record at the time of
the hearing of this appeal. It appears from the affidavit filed by
Mr. Prakash Narain, Secretary to respondent No. I, that when
notice issued by respondent No. I on the 17th November, 1964,
F
was served on the appellant, through oversight the original complaint filed by respondent No. 2 before the Governor of Orissa
and the reference made by the Governor to respondent No. I
were not forwarded to the appellant. At t]le hearing before us,
it is not disputed by the appellant that a complaint was in fact
made by respondent No. 2 before the Governor of Orissa and that
the Governor had then referred the matter to respondent No. I
for its opinion.
Let us then refer to Article 192 which falls to be construed
in the present appeal. Before reading this article, it is relevant
G
to refer to Art. 191. Article 191(1) provides that a person shall
H
be disqualified for being chosen as, and for being, a member of
the Legislative Assembly or Legislative Council of a State if,
inter alia, he is so disqualified by or under any law made by
Parliament. There are four other disqualifications prescribed by
clauses (a) to (d) with which we are not concerned in the present
appeal. It is the disqualification prescribed by clause (e) on which
respondent No. 2 relies in support of the complaint made by him
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BRUNDABAN v. ELECIION COMMISSION \Gajendragadkat, G.J.)
li7
to the Governor. As we have already indicated, respondent No.
2's case is that the appellant has incurred the disqualification
under Art. 19l(l)(e) read with s. 7(d) of the Act, and this disqualification has been incurred by him subsequent to his election.
It is well-settled that the disqualification to which Art. 191(1)
refers, must be incurred subsequent to the election of the member.
This conclusion follows from the provisions of Art. 190(3)(a).
This Article refers to the vacation of seats by members duly
elected. Sub-Article (3)(a) provides that if a member of a House
of the Legislature of a State becomes subject to any of the dis·
qualifications mentioned in clause (!) of Art. 191, his seat shall
thereupon become vacant. Incidentally, we may add that oorresponding provisions with regard to the disqualification of members
of both Houses of Parliament are prescribed by Articles 10 I, 102
and 103 of the Constitution. It ha> been held by this Court in
Election Commission, India v. Saka Venkata Subba Rao and
Union of India-Intervener/that Articles 190(3)
and 192(1) are
applicable only to disqualifications to which a member beoomes
subject after being elected as such. There is no doubt that the alilegations made by respondent No. 2 in his complaint before the
Governor, prima facie, indicate that the disqualification on which
respondent No. 2 relies has arisen subsequent to the election of
the appellant in 1961.
Reverting then to Art. 192, the question which we have t<>
decide in the present appeal is whether respondent No. I is
entitled to hold an enquiry before giving its opinion to the
Governor as required by Art. 192(2). Let us read Art. 192:-
"(I) 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 gi'ving any decision on any such question,
the Governor shall obtain the opinion cf the Election Commission and shall act according to such opinion".
Mr. Setalvad for the appellant contends that in the present case,
no question can be said to have arisen as to whether the appellant
has become subject to any of the disqualifications mentioned in
clause (I) of Art. 191, because his case is that such a question can
be raised only on the floor of thf Legislative Assembly and can be
raised by members of the.Assembly and not by an ordinary citizen
or voter in the form of a comolaint to the Governor. Mr. Setalvad
did not dispute the fact that this contention has not been taken by
the appellant either in his writ oetition before the High Court or
even in his application for special leave before this Court. In fact,
the case sought to be made out by the appellant in the present proceedings appears to be that though a question may have arisen about
(') [195~1 8.C~R. 1144.
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his d1squali!ication, it is the Governor alone who can hold the en-
,qUJry and not responJent No. I. Even s:i, we have allowed Mr.
.'Setalvad to raise this point, becaase it is purely a question of law
depending upon the construction of Art. 192(1).
In support of his argument, Mr. Setalvad refers to the fact thal
Art. 192 occurs in Chapter Ill of Part VI which deals with the State
Legislature, and he invited our attention to the fact that under Art.
I \1\1\3) which deals with a question as to whether a Bill introduce:!
in the Legislature of a State which has a Legislative Council is a
Money Bill or not. the decision of the Speaker of the
Legislative Assembly of such State thereon shall be fin,!. He u~ges
that just as the question ccntemplated by Art. 199(3) can be raised
only on the ttoor of the House, so can the question about a subsequent disqualification of a member of a Legislative Assembly be
raised on the floor of the House and nowhere else. He concedes that
whereas the question contemplated by Art. 199(3) has to be decided
by the Speaker and his decision is final, the authority to decide the
question under Art. I 92(1) is not vested in the Speaker, but is vested
in the Governor. In other words, the context in which Art. 192(! i
occurs is pressed into service by Mr. Setalvad in support of his
argument.
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Mr. Setalvad also relies on the fact that Art. 192(1) provides
that if any question arises, it shall be referred for the decision of the
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Governor and this clause, . says Mr. Setalvad, suggests that there
should be some referring authority which makes· a reference of-the
question to the Governor for his decision. According to him. this
referring authority, by necessary implication, is the Speaker of the
Legislative Assembly. There is another argument which he has advanced Defore us in support of this construction. Article 192(2)
requires that whenever a question is referred to the Governor, he
shall obtain the opinion of the Election Commission and Mr.
Setalvad suggests that it could not have been the intention of the
Constitution to requlre the Governor to refer to the Election
Commission every question which is raised about an alleged disqualification of a member of a Legislative Assembly even though
such a question may be patently frivolous or unsustainable.
p
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We are not impressed by these arguments. It is significant that
the !irst clause of Art. 192(1) does not permit of any limitations such
as Mr. Se!alvad suggests. What the said cla\!Se requires is that a
quest10n should arise; how it arises, by whom it is raised, in what
C!fcumstances it is raised, are not relevant for the purpose of the
application of this clause. All that is relevant is that a question of the
type mentioned by the clause should arise; and so, the limitation
which Mr. Setalvad seeks to introduce in the construction of the
first part of Art. 192(1) is plainly inconsistent with the words used
in the said clause.
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BRUNDABAN "· ELEcrrION CullMlSSION
(Gajendragadkar, O.J.)
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Then as to the argument based on the words "the question
shall be referred for the decision of the Governor", these words do
not import the assumption that any other authority has to receive
the complaint and after a prima facie and initial investigation about
the complaint, send it on or refer it to the Governor for his decision.
These words merely emphasise that any question of the type contemplated by clause (I) of Art. 192 shall be decided by the Governor
and Governor alone; no other authority can decide it, nor can the
decision of the said question as such fall within the jurisdiction of
the Courts. That is the significance of the words "shall be referred
for the decision of the Governor". If tho intention was that the
question must be raised first in the Legislative Assembly and after
a prima facie examination by the Speaker it should be referred by
him to the Governor, Art. 192(1) would have been worded in an
entirely different manner. We do not think there is any justification
for reading such serious limitations in Art. 192(1) merely by implication.
It is true that Art. 192(2) requires that whenever a.. question
arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the
Election Commission for its opinion. It is conceivable that in some
cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will
find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who
has incurred any of the disqualifications specified by Art.191(1), is
entitled to continue to be a member of the Legislative Assembly of
a State, and since the obligation to vacate his seat as a result of his
subsequent disqualification has been imposed by the Constitution
itself by Art. 190(3)(a), there should be no difficulty in holding that
any citizen is entitled to make a complaint to the Governor alleging
that any member of the Legislative Assembly has incurred one of
the disqualifications mentioned in Art. 191(1) and should, therefore,
vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled
to that status, and if any member forfeits that status by reason of a
subsequent disqualification, it is in the interests of the constituency
which such a member represents that the matter should be brought
to the notice of the Governor and decided by him in accordance with
the provisions of Art. 192(2).
Therefore, we must reject Mr.
Setalvad's argument that a question has not arisen in the present
proceedings as required by Art. 192(1).
The next point which Mr. Setalvad has raised is that even if
11 question is held to have arisen under Art. 192(1), it is for the
Governor to hold the enquiry and not for the Election Commission.
He contends that Art. 192(1) requires the question to be referred to
the Governor for his decision and provides that his decision shall
be final. It is a normal requirement of the rule of law that a person
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who decides should be empcwered to hold the enquiry which would A
enable him to reach his decision, and since the Governor decides the
question, he must hold the enquiry and not the Election Commission.
That, in substance, is Mr. Setalvad's case. He concedes that Art.
192(2) requires that the Governor has to pronounce his decision in
accord.rn~e with tlie opinion given by the Election Commission; that
is a Constitutional obligation imposed on the Governor. He. how-
:S
ever, argues that the Election Commission which has to give an
opinion, is· net competent to hold the enquiry, but it is the Governor
who should hold the enquiry and then forward to the Election
Commission all the material collected in such an enquiry to enable
it to fcrm its opinion and communicate the same to the Governor.
c
We are satisfied that this contention also is not well-founded.
The scheme of Article 192(]) and (2) is absolutely clear. The decision
on the question raised under Art. 192(1) has no doubt to' be pronounced by the Governor. but that decision has to be in accordance
with the opinion of the Electicn Commission. The object of this
provision clearly is to leave it to the Election Commission to decide D
the matter, though the decision as such wauld formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Art. 192(1), he is not required to consult
his Council of Ministers; he is not even required to consider and
decide the matter himself; he has merely to forward the question to
the Electidn Commission for its opinion, and as soon as the opinion E
is received, "he shall act according to such opinion". In regard to
complaints made against the election of members to the Legislative
Assembly, the jurisdiction to decide such complaints is left with the
Election Tribunal under the relevant provisions of the Act. That
means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals F
constituted by the Election Commission. Similarly, all complaints
in respect of disqu1Jificaticms subsequentlv incurred by members
who have been validly elected, have, in substance, to be tried by
the Election Commission, though the decision in form has to· be
pronounced by the Governor. If this scheme of Art. J 92(1) 8nd (2)
is borne in mind, there woulc be no difficulty in rejecting Mr.
Setalvad's contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the ElecG
tion Commission, the Election Commission should proceed to try
the complaint before it gives its opinion. Therefore, we are satisfied
H
that respondent No. I acted within its jurisdiction when it served a
notice on the appellant calling upon him to file his statement and
produce his evidence in support thereof.
Mr. Setalvad faintly attempted to argue that the failure of
respondent No. I to furnish the appellant with a copy of the complaint made by responde;it No. 2 before the Governor and of the
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order ~f reference passed by. the Governor forwarding the said
complaint to respo~dent No. l, rendered the proceedings before
respondent No. l illegal. This contention is plainly misconceived.
As soon as respondent No. l received the complaint and the order
of reference which was communicated to it by the Chief Secretary
to the Government of Orissa, it was seized of the matter and it was
plainly acting within its jurisdiction under Art. 192(2) when it served
the notice on the appellant. As we have already indicated, it was
through oversight that the two documents were not forwarded to the
appellant along with the notice, but that cannot in any sense affect
the jurisdiction of respondent No. l to hold the enquiry. In fact, as
respondent No. 2 has pointed out in his affidavit, the fact that a
reference had been made by the Governor to respondent No. l was
known all over the State, and it is futile for the appellant to suggest
that when he received the notice from respondent No. l, he did not
know that a complaint had been made against him to the Governor
alleging that subsequent to his election, he had incurred a disqualification as contemplated by Art. 191 (l)(e) of the Constitution read
with s. 7(d) of the Act. It would have been better if the appellant
had not raised such a plea in the present proceedings.
In this connection, we ought to point out that so far the practiee followed in respect of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both
under Art: 192(2) and Art. 103(2). In fact, the learned AttomeyGeneral far respondent No. 1 stated before us that though on several
occasions, the Election Commission has held enquiries before communicating its opinion either to the President under Art. 103(2) or
to the Governor under Art. 192(2), no one· ever thought of raising
the contention that the enquiry must be held by the President or the
Governor respectively under Art. 103(1) and Art. 192(1). He suggested that the main object of the appellant in taking such a plea
was to prolong the proceedings before respondent No. !. In the first
instance, the appellant asked for a long adjournment and when that
request was refused by respondent Noc !, he adopted the present
proceedings solely with the object of avoiding an early decision by
the Governor on the complaint made against the appellant by respondent No. 2. We cannot say that there is no substance in this
suggestion.
There is one more point to which we may refer before we part
with this appeal. Our attention was drawn by th~ learned. AttorneyGeneral to the observations made by the Chief Election Commissioner when he rendered his opinion to the Gavernor on May
30, 1964, on a similar question under Art. 192(2) in respect of.the
alleged disqualification of Mr. Biren Mitra, a member of the Onssa
Legislative Assembly, "Where, as in the present case": ob~erved the
Chief Election Commissioner, "the relevant facts are m ~1s~ute and
can only be ascertained after a proper enquir~, the Co1!1m1ss1on ~~ds
Itself in the unsatisfactory position of havmg to give a dec1S1ve
L/B(D)2SCI-6
62
SUPREME
COURT
REPORTS
(1965) 3 S.C.R.
opinion en the basis 9f such affidavits and documents as may be A
produced before it. by interested. parties. It is desirable that the
Election Commission should be vested with. th(l powers of a commission under the Commissions of Enquiry Act, 1952, such as the
pow~r to summon witnesses and .examine them on oath, the power
to compel the production of documents, and the power to issue commiss ;ons for the examination of witnesses". We would like to invite B
1 the attention of Parliament to these observations, because we think
that the difficulty experienced by the Election Commission in rendering its opinion under Art. 103(2) or. Art. 192(2) appears to be
genuine, and so Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be
accepted and appropriate legislation adopted in that behalf.
C
The result is, the appeal fails and is dismissed with costs. In
view of the fact that the present proceedings have unnecessarily
protracted the enquiry before respondent No. l, we suggest that
respondent No. 1 should prO'Ceed to consider the matter and forward
its opinion to the Governor as early as possible .. It is hardly neces,
D
sary to point out that in case the allegations made against the
appellant are found to be valid, and the opinion of respondent No.
l is in favour of the Cl\Se set out by respondent No. 2, complications
may arise by reason of the Constitutional provision ,prescribed by
Art. 190(3). In view of the said provision, it is of utmost importance
that complaints made under Art. 192(1) must be disposed of as
E
expeditiously as possible.
Appeal dismissed.
\