# Rani Praaad Narayan Sahi and Another v. The State of Bihar and Other"

- **Citation:** [1953] 1 S.C.R. 1144
- **Court:** Supreme Court of India
- **Decided:** 1952-09-16
- **Bench:** PATANJALI SAS'l'RI C. J·, MuKHERJEA, VIVIAN BosE, Ghulam Hasan, BHAGWA'rI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rani-praaad-narayan-sahi-and-another-v-the-state-of-bihar-and-other-103
- **Pages:** 16

## Headnote

Gonstitntion of India, 1950, a.rts. 132, 102, 2211-High Court
-Poiver to iss·ue writs-Liniitatio1u1-Po1oer to issue iurit on
persons residinu outside territorial fttrisdiction-Election to 11Iad1'as
Assembly-Reference to l!Jlection Commission, New Dclhi-Jllrisdiction of .iliarlras High Conrt to issue ivrit a{]ainst 00111.rnission-Dis·
qiwlification before election-Effect of-Appeals from Sin17le Judge,
The respondent, who had been convicted and sentenced to
rigorous imprisonment for seven years, was elected a member of
the Madras Legislative Assembly. At the instance of the Speaker
of the Assembly, the Governor of Madras referred to the Election
Commission, which had its offices permanently located at New
Delhi, the question whether the respondent was disqualified and
could be allowed to sit and vote in the Assembly, The respondent
thereupon applied to the High Court of Madras under article 226
of the Constitution for a writ restraining the Election Commission from enquiring into bis alleged· disqualification for membership of the Assembly :
Held, thJ>t the power of the High Court to issue writs under
article 226 of the Constitution is subject to the two·fold limitation
•
/
•
S.C.R.
SUPREME COURT REPORTS
that such writs cannot run beyond the territories subject to its
1953
jurisdiction and th& person or authority to whom the High Court
is empOVi'ered to issue such \Vrits must be amenable to the jurisElection Com--
diction of the High Court either hy residence or location "rithin
niission, India
the territories subject to its jurisdiction.
The High Court of
Saka ~;nkata
liladras bad therefore no jurisdiction to issue a writ unc1er article
Subba. Rao
226 of the Constitution against the Election Commission.
Held f!!rther, that articles 190(3) and 192(1) are applicable l'alanjali Sastri
only to disqualifications to which a member becomes subject after
o. J.
heis elected as such, and neither the Governor nor the Election
Commission had jurisdiction to enquire into the respondent's disqualification which arose long before his election.
A tribunal or authority permanently located and normally
carrying on its activities outside the territorial limits of a High
Court cannot be regarded as functioning within those territorial
limits and therefore amenable to the jurisdiction of that High
Court, ,merely because it exercises jurisdiction within those
territorial limits so as to affect the rights of parties therein.
The fact that the matter referred to it for decision related
to the opposite party's right to sit and vote in the Legislative
Assembly at Madras and the parties to the dispute resided in
the State of Madras could not give jurisdiction to the High Court
of ?i.iadras to issue such a writ against the Election Commission.
An appeal lies to the Supreme Court under article 132 of the
Constitution even from a judgment, decree or final order of a
Single Judge of a High Court, provided the requisite certificate
is given.
Crvn,
APPELLATE J·umsDH"rlON:
Civil
Appm1l
No. 205 of 1952.
Appeal from the Judgment and Order elated the
16th September, 1952, of the High Court of Judicature
at Madras (Subba Rao J.) in Writ Petition No. 599 of
1952 filed under the Special Original Jurisdiction of
the High Court under article 226 of the" Constitution
of India.
M. C. Setalvad, Attoi•ney-Genernl for Indict (G. N.
Joshi, with him) for the appellant and Intervener.
Mohan Kumaramangalam, for the respondent.
1953. February 27. The judgment of the court
was delivered by
PATANJALI SASTRI C.J,.-'l'his is an appeal from an
order of a Single Judge of the High Court of Judicature
at Madras issuing a writ of prohibition restraining the
•
•
1146
SUPREME COURT REPORTS
[1953]
19.;3
Election Commission, a statutory authority corntituted by the President and having its offices permanentElection Com,-
mission India ly located at New Delhi, from enquiring into the allegv.
ed disqualification of the respondent for membership
Saka Venkata of the Madras Legislative Assembly.

## Text

•
1953
. Rani Praaad
Narayan Sahi
and Another
v.
The State of
Bihar and
Other".
M nkherjea J.
ii44
StJPREl\fE . COURT REPORTS
[1953]
comprised in the lease referred to in that Act.
The
appellants will have their costs in both c"ourts .
VIVIAN BosE J.-I am in entire agreement with my
Lord the Chief Justice and with my learned brother
Mukherjea.
GHULAM HASAN J.--1 agree with my Lord the Chief
Justice and with my brother Mukherjea.
BHAGWATI J.-1 entirely agree with the judgment
just delivered by my Lord the Chief Justice and my
brother Mukherjea and there is nothing which I can
usefully add.
Appenl allowed.
Agent for the appellants: I. N. Shroff.
Agent for the respondents: G. H. Rajadhyaksha.
ELECTION COMMISSION, INDIA
v.
SAKA VENKATA SUBBA RAO
UNION OF INDIA-Intervener.
[PATANJALI SAS'l'RI C. J·., MuKHERJEA, VIVIAN BosE,
GHULAM HASAN and BHAGWA'rI JJ.]
Gonstitntion of India, 1950, a.rts. 132, 102, 2211-High Court
-Poiver to iss·ue writs-Liniitatio1u1-Po1oer to issue iurit on
persons residinu outside territorial fttrisdiction-Election to 11Iad1'as
Assembly-Reference to l!Jlection Commission, New Dclhi-Jllrisdiction of .iliarlras High Conrt to issue ivrit a{]ainst 00111.rnission-Dis·
qiwlification before election-Effect of-Appeals from Sin17le Judge,
The respondent, who had been convicted and sentenced to
rigorous imprisonment for seven years, was elected a member of
the Madras Legislative Assembly. At the instance of the Speaker
of the Assembly, the Governor of Madras referred to the Election
Commission, which had its offices permanently located at New
Delhi, the question whether the respondent was disqualified and
could be allowed to sit and vote in the Assembly, The respondent
thereupon applied to the High Court of Madras under article 226
of the Constitution for a writ restraining the Election Commission from enquiring into bis alleged· disqualification for membership of the Assembly :
Held, thJ>t the power of the High Court to issue writs under
article 226 of the Constitution is subject to the two·fold limitation
•
/
•
S.C.R.
SUPREME COURT REPORTS
that such writs cannot run beyond the territories subject to its
1953
jurisdiction and th& person or authority to whom the High Court
is empOVi'ered to issue such \Vrits must be amenable to the jurisElection Com--
diction of the High Court either hy residence or location "rithin
niission, India
the territories subject to its jurisdiction.
The High Court of
Saka ~;nkata
liladras bad therefore no jurisdiction to issue a writ unc1er article
Subba. Rao
226 of the Constitution against the Election Commission.
Held f!!rther, that articles 190(3) and 192(1) are applicable l'alanjali Sastri
only to disqualifications to which a member becomes subject after
o. J.
heis elected as such, and neither the Governor nor the Election
Commission had jurisdiction to enquire into the respondent's disqualification which arose long before his election.
A tribunal or authority permanently located and normally
carrying on its activities outside the territorial limits of a High
Court cannot be regarded as functioning within those territorial
limits and therefore amenable to the jurisdiction of that High
Court, ,merely because it exercises jurisdiction within those
territorial limits so as to affect the rights of parties therein.
The fact that the matter referred to it for decision related
to the opposite party's right to sit and vote in the Legislative
Assembly at Madras and the parties to the dispute resided in
the State of Madras could not give jurisdiction to the High Court
of ?i.iadras to issue such a writ against the Election Commission.
An appeal lies to the Supreme Court under article 132 of the
Constitution even from a judgment, decree or final order of a
Single Judge of a High Court, provided the requisite certificate
is given.
Crvn,
APPELLATE J·umsDH"rlON:
Civil
Appm1l
No. 205 of 1952.
Appeal from the Judgment and Order elated the
16th September, 1952, of the High Court of Judicature
at Madras (Subba Rao J.) in Writ Petition No. 599 of
1952 filed under the Special Original Jurisdiction of
the High Court under article 226 of the" Constitution
of India.
M. C. Setalvad, Attoi•ney-Genernl for Indict (G. N.
Joshi, with him) for the appellant and Intervener.
Mohan Kumaramangalam, for the respondent.
1953. February 27. The judgment of the court
was delivered by
PATANJALI SASTRI C.J,.-'l'his is an appeal from an
order of a Single Judge of the High Court of Judicature
at Madras issuing a writ of prohibition restraining the
•
•
1146
SUPREME COURT REPORTS
[1953]
19.;3
Election Commission, a statutory authority corntituted by the President and having its offices permanentElection Com,-
mission India ly located at New Delhi, from enquiring into the allegv.
ed disqualification of the respondent for membership
Saka Venkata of the Madras Legislative Assembly.
Subba Rao
Th
d t
.
d b th S
.
J d
.
_
e respon en was convwte
y
e ess10ns u ge
Patanjali Scrntri of East Godavari and sentenced to a term of seven
c. J.
years' rigorous imprisonment in 1942, and he was released on the occasion of the celebration of the Independence Day on 15th August, 1947. In June, 1952,
there was to be a by-election to a reserved seat in the
Kakinada constituency of the Madras Legislative Assembly, and the respondent, desiring to offer himself
as a candidate but finding himself disqualified under
section 7 (b) of the Representation of the People Act,
1951, as five years had not elapsed from his release,
applied to the Commission on 2nd April, 1952, for exemption so as to enable him to contest the election. No
reply to the application having been received till 5th
May, 1952, the last day for filing nominations, the respondent filed his nomination on that day, but no exception was taken to it either by the Returning Officer
or any other candidate at the scrutiny of the nomination papers. The election was held on 14th June, 1952,
and the respondent, who secured the largest number
of votes, was declared elected on 16th June, 1952. The
result of the election was published in the Fort St.
George Gazette (Extraordinary) on 19th June, 1952, and
the respondent took his seat as a member of the Assembly on 27th June, 1952. Meanwhile, the Commission rejected the respondent's application for exemp·
tion and communicated such rejection to the respond.
ent by its letter dated 13th May, 1952, which however
was not received by him. On 3rd July, 1952, the Speaker
of the Assembly read out to the House a communication received from the Commission bringing to his
notice "for such action as he may think fit to take",
the fact that the respondent's application for exemption had been rejected. A question as to the respondent's disqualification having thus been raised, the
Speaker referred the question to the Governor of
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S.C.R.
SUPREME COURT REPORTS
1147
Madras who forwarded the case to the Commission for
19153
its "opinion" as' required bv article 192 of the ConstituJ
Election Oo1n·
tion. The respondent having thereupon challenged the mission, India
competency of the reference and the action taken there8 k vv. k
b
h G
h C
. .
'fi d h
a ·a
en ·at•
on y t e overnor, t e omn11ss10n not1. e t e res·
Snbba Rao
pondent that his case would be heard on 21st August,
-
1952.
Accordingly, the Chief Election Commissioner Patan{!l~ Sastri
(who was the sole Member of the Commission for the time
· ·
being) went down to Madras and heard the respondent's counsel and the Advocate-General of Madras on
21th August, 1952, when it was agreed that, in case the
petitioner's counsel desired to put forward any further
representations or arguments, the same should be sent
in writing so as to reach the Commission in Delhi by
28th August, 1952, and the Commission should take
them into consideration before giving its opinion to the
Governor.
On the same day (21st August, 1952) the respondent
applied to the High Court under article 226 of the
Constitution contending that article 192 thereof was applicable only where a member became subject to a disqualification after he was elected but not where, as
here, the disqualification arose long before the election,
in which case the only remedy was to challenge the
validity of the election before an Election Tribunal.
He accordingly prayed for the issue of a writ of mandamus or of prohibition directing the Commission to forbear irom proceeding with the reference made by the
Governor of Madras who was not, how@ver, made a
party to the proceeding. On receipt of the rule nisi
issued by the High Court, the Commission demurred
to the jurisdiction of the court to issue the writs asked
for, on the ground that the Commission was not "within the territory in relation to which the High Court
exercised jurisdiction". A further objection to the
maintainability of the application was also raised to the
effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view
of the immunity provided under article 361 (1), and
that the Commission itself, which had not to "decide" the
question of disqualification, but had merely to give its
•
•
1148
SUPREME COURT REPORTS
[1953]
196J
"opinion", could not be proceeded aglj-inst under article 226. On the merits, the Commission contended that
Election Oonimission, India article 192 was, on its true construction, applicable to
v.
cases of disqualification arismg both before and after
Saka Venkata the election and that both the reference of the quesSubba Rao
tion as to the respondent's disqualification to the
P
-. ,-. s. . Governor of Madras and the latter's reference of the
atanb~ ;,' "''" same to the Commission for its opinion were competent
and valid.
The application was heard by Subba Rao J. who
overruled the preliminary objections and held that
article 192 on its true construction applied only to
cases of supervening disqualifications and that the Commission had, therefore, no jurisdiction to deal with the
respondent's disqualification which arose long before
the election took place.
He accordingly issued a writ
prohibiting the Commission from proceeding with the
enquiry in regard to the question referred to it by the
Governor under article 192. The learned Judge, however, granted a certificate under article 132 that the
case involved substantial questions of law as to the interpretation of the Constitution, and the Commission
has accordingly preferred this appeal.
A preliminary objection was raised by Mr. Mohan
Kumaramangalam, who argued the case for the respond-.
ent with marked ability, that the appeal brought from
the judgment of a single Judge was baned under article
133(3) of the Constitution despite the certificate granted by the learned Judge ovenuling the same objection
which was also raised before him. It has been urged
that, so far as civi,l matters are concerned, the more
comprehensive provisions in article 133(1) (c) for the
grant of a certificate of fitness for appeal to the Supreme Court completely overlap article 132(1) which
relates only to one specific ground, namely, a substantial question of law being involved as to the interpretation of the Constitution, and that the court's power,
therefore, to grant a certificate of fitness on any ground
including the ground referred to above, must be deemed to arise under iirticle 133(1) (c), with the result that
the CJ\Prcfae of su0h power is eirn\mjed by the o_penmg
•
• '
•
s.c.R.
SUPREME COURT REPORTS
1149
words of clause (3) of that article which bars an
19.;3
appeal from the judgment, decree or final order of one
J d
f
H, l C
Th
t
h
Election Com,.
u ge o a
1g 1 ourt.
e argumen was song t to mission, India
be reinforced by reference to clause (2) of that article
v.
and the proviso to article 145(3) both of which conSaka Venkata
template appeals involving substantial questions of
Subba Rao
law as to the interpretation of the Constitution being Patanjali sa.,tri
brought without a certificate having been obtained
o. J.
under article 132. The argument has no force.
'While
it is true that constitutional questions could be raised
in appeals filed without a certificate under article 132,
the terms of that article make it clear that an appeal
is allowed from "any judgment, decree or final order of
a High Court" provided, of course, the requisite certificate is given, and no restriction is placed on the
right of appeal having reference to the number of
Judges by whom such judgment, decree or final order
was passed.
Had it been intended lo exclude the
right of appeal iu the case of a judgment etc., by one
Judge, it would have been easy to include a reference
to article 132 also in the opening words of article 133(3),
as in the immediately preceding clause. If the respondent's contention were accepted, not only wonld
article 132 become redundant so far as it relates to
civil proceedings, but the object of the Explanation to
that article, which was designed to supersede the
decision of the Federal Court in S. Kuppuswami Rao
v. The King (1) and thus to secure a speedy determination of constitutional issues going to the root of a case,
would be defeated, as the Explanation is not made
applicable to the same expression "final order" used
in article 133(1 ).
The whole scheme of the appellate
jurisdiction of the Supreme Court clearly indicates
that questions relating to the interpretation of the
Constitution are placed in a special category irrespective of the nature of the proceedings in which they
may arise, and a right of appeal of the widest amplitude is allowed in cases involving such questions. We
accordingly overrule the preliminary objection and
hold that the appeal is maintainable,
(1) [1947] F.C.R r8o,
149
•
•
ll50
SUPREME COURT REPORTS
[1953]
195a
Turning now to the question as to the powers of a
Election Cow- High Court under article 226, it will be noticed that
mission, India article 225 continues to the existing High Courts the
saka v~nkata same jurisdiction and powers as they possessed, immeSubba Rao
diately Lefore the commencement of the Constitution.
l'at,mjali Sastri Though there had been some conflict of judicial opio. J.
nion on the point, it was authoritatively decided by
the Privy Council in the Parlakimerli case(') that the
High Court of Madras~the High Courts of Bombay
and Calcutta were in the same po8ition-had no power
to issue what were known as high prerogative writs
beyond the local limits of its original civil jurisdiction,
and tho power to issue such writs within those limits
was derived by the court as successor of the Supreme
Court which had been exercising jurisdiction over the
Presidency Town of Madras and was replaced by the
High Court established in pursuance of the Charter
Act of 1861. The other High Courts in India had no
power to issue such writs at all. In that situation, the
makers of the Constitution, having decided to provide
for certain basic safeguards for the people m the new
set up, which they called fundamental right.s, evidently
thought it necessary to provide also a quick and
inexpensive remedy for the enforcement of such rights
and, finding that the prerogative writs which the
Courts in England had developed and used whenever
urgent necessity demanded immediate and decisiYe
interposition, were peculiarly suited for the purpose,
they conferred, in the States' sphere, new and wide
powers on the High Courts of issuing directions, orders,
or writs primarily for the enforcement of fundamental
rights, the power to issue such directions, etc., "for any
other purpose" being also included with a view apparently to place all the High Courts in this country in
somewhat the same position as the Court of King's
Bench in England. But wide as were the powers thus
conferred, a two-fold limitation was placed upon their
exercise. In the first place, the power is to be exercised "throughout the territories in relation to which it
exercises jurisdiction", that is to say, the writs issued
(1) 70 1.A. 129:
•
,
•
S.C.R.
SUPREME COURT R8l'OR1'S
1151
by the court cannot run beyond the territories subject
1903
to its jurisdictibn. Secondly, the person or authority Election Oum·
to whom the High Court is empowered to issue such mi.ssiou, bulin
v.
writs must be "within those territories'', which clearly suka Venka1a
implies that they must be amenable to its jurisdiction
Subba Rau
either by residence or location within those te1Ti- Patan.iali sa.,1ri
tories.
o. J.
Such limitation is indeed a logical consequence of
the origin and development of the power to issue prerogative writs as a special remedy in England. Such
power formed no part of the original or the appellate
jurisdiction of the Court of King's Bench. As pointed
out by Prof. Holdsworth (History of English Law,
Vol. I, p. 212 et seq.) these writs had their origin in the
exercise of the King's prerogative power of superintendence over the due observance of the law by his
officials and tribunals, and were issued by the Court
of King's Bench-haheas corpus, that the King may
know whether his subjects were lawfully imprisoned or
not; certiorari, that he may know whether any proceedings commenced against them are conformable to
the law; mandamus, to ensure that his officials did
such acts as they were bound to do under the law, and
prohibition, to oblige tho inferior tribunals in his realm
to function within the limits of their respective jurisdiction. See also the introductory remarks in the
judgment in the Parlakimedi case(').
These writs
were thus specifically directed
to the
persons
or
authorities against whom redress was sought
and were made returnable in the court issuing them
and, in case
of disobedience, were enforceable
by attachment for contempt. These characteristics
of the special form of remedy rendered it neces·
sary for its effective
use
that the
persons
or
authorities to whom the court was asked to issue these
writs should be within the limits of its tetTitorial jurisdiction.
We are unable to agree with the learned
Judge below that if a tribunal or authority permanently
located and normally carrying on its a9tivities elsewhere exercises jurisdiction within those territorial
(1) 70 I.A. 129, 140 .
•
•
1953
Election Comniis8ion, Ind1'.a
v.
Salca V cnkata
Subba lfao
1152
SUPREME COURT R.EPORTS
[1953]
limits so as to affect the rights of parties therein, such
tribunal or authority must be regarded· as ;'functioning" within the territorial limits of the High Court and
being therefore amenable to its jurisdiction under
article 226.
It was, however, urged by the respondent's counsel
Patanjali SaBtri that the High Court had jurisdiction to issue a writ to
c. J.
the Commission at New Delhi because the question
referred to it for decision related to the respondent's
right to sit and vote in the Legislative Assembly at
Madras and the parties to the dispute also resided in
the State of Madras. The position, it was claimed, was
analogous to the court exercising jurisdiction over
persons outside the limits of its jurisdiction, provided
the cause of action arose within those limits. Reliance
was placed upon the following observations of the
Privy Council in the Parlakimedi case( 1 ): "The question
of jurisdiction must be regarded as one of substance and
that it would not have been within the competence of the
Supreme Court to claim juisdiction over such a matter
as the present of issuing certiorari to the Board of
Revenue on the strength of its location in the town.
Such a view would give jurisdiction to the Supreme
Court in the matter of the settlement of rents of ryoti
holdings in Ganjam bet\veen parties not otherwise
subject to its jurisdiction, which it would not have had
over the Revenue Officer who dealt with the matter at
first instance." We cannot accede to this argument.
The rule that cause of action attracts jurisdiction in
suits is based on statutory enactment and cannot apply
to writs issuable under article 226 which makes no
reference to any cause of action or where it arises but
insists on the presence of the person or authority
"within the territories" in relation to which the High
Court exercises jurisdiction. Nor is much assistance
to be derived from the observations quoted above.
That case arose out of proueedings before a special
Revenue Officer for settlement of fair rent for certain
holdings within the zemindary estate of Parlakimedi
situated beyond the local limits of the original civil
jurisdiction of the Madras High Court.
Dissatisfied
(I) 70 !,A, 129.
•
•
S.C.R.
SUPREME COURT REPORTS
115:-l
with the settlement made by the Revenue Officer, the
1953
ryots appealed" to the Board of Revenue which had its Election 00111 _
offices at Madras. The appeal was accepted by a mission, India
single member of the Board who reduced the rent as
v,
desired by the ryots. The zemindar appealed by way
of revision to the Collective Board which sanctioned an
enhancement. Thereupon the ryots applied to the Patanjali Sastri
High Court for the issue of a writ of certiorari to bring
0 · J.
Saka Venkata
Subba Rao
up and quash the proceedings of the Collective Board
which passed the order complained of in the town of
Madras. The Privy Council considered the question
of jurisdiction from two separate standpoints:--
"(a) independently of the local civil jurisdiction
which the High Court exercises over the Presidency
town; or
(b) solely by reason thereof, as au incident of the
location of the Board of Revenue within the town."
On question (a), they examined the powers of the
Supreme Court at Madras to issue certiomri beyond
the Presidency Town under clause 8 of the Charter of
1800, as it was suggested that the High Court succeeded to the jurisdiction and powers of the Supreme Court
which had been granted the same powers of issuing
prerogative writs as the Court of King's Bench in
England throughout the Province, and they recorded
their conclusion thus:
"Their Lordships are not of opinion that the
Supreme Court would have had any jurisdiction to
correct or control a country court of the company deciding a dispute between Indian inhabitants of Ganjam
about the rent payable for land in that district."
Then, dealing with question ( b) and referring to
their decision in Besant' s case(') that the High Courts
of Calcutta, l\fadras and Bombay had power to issue
certiorari in the exercise of their local jurisdiction,
they held that the principle could not be applied
"to the settlement of rent for land in Ganjam merely
on the basis of the location of the Board of Revenue
as a body which is ordinarily resident or locl),t<'d within
(1) 46 LA. 176 .
•
•
ii54
SUPREME cot:R'r REPORTS
[l953j
19.53
the town of Madras, or on the basis that the order
Election 00111• complained of was made within the to\\rn. If so, it
mi,.ion, India would seem to follow that the jurisdiction of the High
Court would be avoided by the removal of the Board of
Saka T"enlcrtta Revenue beyond the outskrits of the town and that it
Subba Rau
v.
would never attach but for the circumstance that an
Patanjali Sastri appeal is brought to, or proceedings in revision taken
o. J.
by, the Board of Revenue."
Then followed the passage already quoted on which
the respondent's counsel laid special stress. It will
thus be seen that the decision is no authority for
dispensing with th.e necessity of the presence or location, within the local limits of the court's jurisdiction,
of the person or authority to whom the writ is to be
issued, as the basis of its power to issue it. Their
Lordships considered, in the peculiar situation they
were dealing with, that the mere location of the appellate authority alone in the town of l\fadrns was not a
sufficient basis for the exercise of jurisdiction whereas
both the subject-matter, viz.,
the settlement of
rent for la.nds in
Ganjarn,
and
the
Revenue
Officer
authorised to make
the
settlement
at
first instance were outside the loc>tl limits of the
jurisdiction of the High Court. ,If the court in
Madras were recognised as having jurisdiction to issue
the writ of certiorari to the appellate authority iu
Madras, it would practically be recognising the court's
jurisdiction over the Revenue Officer in Ganjarn and
the settlement of rents for hmds there, which their
Lordships held it never had. That w:i,s the "whstance" of the matter they were looking :i,t, and their
observations lend no support to the view that if the
subject-matter or the cause of action :tnd the parties
eoncerned were within the territorial limits of the
jurisdiction, the High Court could issue prerogative
writs to persons or authorities who are not within
those limits. In any case, the decision did not turn
on the construction of a statutory provision similar in
scope, purpose or wording to article 226 of the Constitution, and is not of much assistance in the construction of that article.
•
•
•
8.C.R.
SUPREME COURT REPORTS
1155
It was said .that it could not have been contem19;3
plated that an inh11bitant of the f':ltate of Madras,
f. l'
d b
d ·
c
h Electio1i Ooni.·
ee mg aggrieve
y a threatene
mterierence· wit
mission, India
the exercise of his rights in that State by an authority
,
v.
1
] · D !h'
d
·
'th
· · d' ·
h
ld .Saka Venkata
ocatec m
e
1 an actmg wt· out Jllrts JCt10n, s ou
· s~bba Rao
seek his remedy under article 226 in the Punjab
-
High Court. It is a sufficient answer to this argument Patanb~l~ ~
0
-'
1"
of inconvenience to say that, the language of the
article being reasonably plain, it is idle to speculate as
to what was or was not contemplated.
Our 11ttcntiu11 has been called to certain decisions of
High Courts dealing with the situation where the
authority claiming to exercise jurisdiction over a matter
at first instance is located in one State and the a ppellate authoritv is locatecl in another State. It is not
necessary for" the purposes of this appeal to decide
which High Court would have jurisdiction in such
circunrntances to issue prerogative writs under article
226.
In the view we have expressed above as to the
applicability of article 2-26 to the present case, it is
unnecessary to enter upon a discussion of the question
whether article 192(1) applies only to members who,
having been already elected, have become subject to a
disqualification by re11son of events happening after
their election; but having heard the point fully argued
before us, we think it right to express our opinion
thereon, especially as both sides have invited us to do
so in view of its general importance.
The relevant provisions of the Constitution on which
the determination of the question turns are as
follows:
190. (3) If a member of a House of the Legislature
ofa State-
(a) becomes subject to any of the disqualifications
mentioned in clause (1) of article 191; or
(b) resigns his seat by writing under his hand
addressed to the Speaker or the Chairman, as the case
may be,
his seat shall thereupon become vacant,
•
•
1156
SUPREME COL'RT REPORTS
[1953]
J.?53
191. ( l) A person shall be disqualified for being
chosen as, and for being, a member of the Legislative
Election Ooni1
L ' 1 ·
r<
'l f
St t
Assemb y or egrs atrve ,,ouncr o a , a e11iission, India
v.
(a) if he holds any office of profit under the
Saka Jlwkata Government of India or the Government of any State,
Subba Rao
specified in the First Schedule, other than an office
Patanjali Sastr1 declared by the Legislature of the State by law not to
o. J.
disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
( c) if he is an undischarged insolvent ;
( d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is under
any acknowledgment of allegiance or adherence to a
foreign State;
(e) if he is so disqualified by or under any Jaw
made by Parliament.
192. (1) If any question arises as to whether a member of a House of the Legislature of a State has
become subject to any of the disqualifications mentioned in clause ( 1) of article 191, the question shall be
referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question,
the Governor shall obtain the opinion of the Election
Commission and shall act according to such opinion.
193. If a person sits or votes as a member of the
Legislative Assembly or the Legislative Council of a
State ............ when he knows that he is not qualified
or that he is disqualified for membership thereof, or
that he is prohibited from so doing by the provisions
of any law made by Parliament or the Legislature of
the State, he shall be liable in respect of each day on
which he so sits or votes to a penalty of five hundred
rupees to be recovered as a debt due to the State.
As has been stated already, the respondent's conviction and sentence in 1942 disqualified him both for
being chosen as, and for being, a member of the Legislative Asseμrbly under article 191(1) (e) read with section 7 of the Representation of the People Act, 1951,
•
•
S.C.R.
SUPREME COURT REPORTS
1157
passed by Pa!·liament, the period of five years since
1953
his release on 15th August, 194 7, not having elapsed El
.
0
b I!
h
f h 1 ·
Th
d
J
·
, eclton
u.ne1ore t e date o t e e eotion.
e respon ent iavmg mission India
thus been under a disqualification since before his
v'.
nomination on 15th March, 1952, could he be said to Saka Venkata
have "become" subject to that disqualification within
Subba Raa
the meaning of article 192? The rival contentions of P 7s .
the parties centred round the true interpretation to be atani;_ 'J. astri
placed on that word in the context of the provisions
quoted above.
The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications
of members", viz., articles 190 to 193, should be read
together, and as articles 191 and 193 clearly cover both
pre-existing and supervening disqualifications, articles 190 and 192 should also be similarly understood as
relating to both kinds of disqualification. According
to him all these provisions together constitute an
integral scheme whereby disqualifications are laid down
and machinery for determining questions arising in
regard to them is also provided. The use of the word
"become" in articles 190 (3) and 192 (1) is not inapt,
in the context,
to include within its scope preexisting disqualifications also, as becoming subject to a
disqualification is predicated of "a member of a House
of Legislature", and a person who, being already disqualified, gets elected, can, not inappropriately, be
said to "become" subject to the disqualification as a
member as soon as he is elected. The argument is
more ingenious than sound. Article 191, which lays
down the same set of disqualifications for election as
well as for continuing as a member, and article 193
which prescribes the penalty for sitting and voting
when disqualified, are naturally phrased in terms wide
enough to cover both pre-existing and supervening
disqualifications ; but it does not necessarily follow
that articles 190 (3) and 192 (1) must also be taken to
cover both. Their meaning must depend on the
language used which, we think, is reasonably plain.
In our opinion these two articles go together and
150
•
1158
Sl'PREME COURT REPORTS
[1953]
1953
provide a remedy when a member incurs 11 disqualificaE
.
0
tion after he is elected asamernbrr. Not only do the
lection
•Omd
. b
b.
,. -
. 1 190(3)
d "h
wis.,ion India WOl' S '' eCOlllCS SU Ject . lll al'tlC e
an
as
v'.
become subject" in article 192(1) indicate a change in the
Saka Venkata position of the member after be was elected, but the
Subba Rao
provision that his seat is to become thereiipon vacant,
-.
that is to say, the seat which the member was filling
Palanjal1 Sa8/ri h
c
b
h'
b
·
d'
c. J
t eretQ1ore
ecomes vacant on
is
ecommg
is-
.
qualified, further reinforces the view that the article
contemplates only a sitting member incurring the
disability while so sitting.
The suggestion that the
language used in article 190(3) can equally be applied to
a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a
strained and farfotched construction and cannot be
accepted. The Attorney-General admitted that if the
word " is" were substituted for "becomes" or "has
become", it would more appropriately convey the
the meaning contended for by him, but he was
unable to say why it was not used.
It was said that on the view that articles 190(3)
and 192(1) deal with disqualifications incurred after
election as a member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before his election, for,
such a disqualification is no ground for challenging the
election by an election petition under article 329 of
the Constitution read with section 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment
which could easily have provided for such a contingency, and it cannot be pressed as an argument against
the respondent's construction of the constitutional
provisions. On the other hand, the Attorney-General's
contention might, if accepted, lead to conflicting
decisions by the Governor dealing with a reference
under article 192 and by the Election Tribunal inquiring into an election petition under section 100 of the
Parliamentary statute referrred to above.
For the ~easons indicated we agree with the learned
Judge below in holding that articles 190(3) and 192(1)
' •
s.c.R.
SUPREME COURT REPORTS
1159
are applicable only to disqualifications to which a
1953
member beccrmes subject after he is elected as such, Election 0 01,..
and that neither the Governor nor the Commission mission, India
has jurisdiction to enquire into the respondent's disv.
qualification which arose long before his election.
8
~",;,h~';!:ta
As, however, we have held that the High Court was ,
. .
.
not competent under article 226 to issue any pre- 1 ata.nJali 808"'
rogative writ to the appellant Commission, the appeal is
allowed and thewrit of prohibition issued by the learned
Judge is quashed. We make no order as to costs.
Appeal allowed.
Agent for the appellant and the Intervener :
G. H. Rajadhyaksha.
Agent for the respondent: S. Siibramaniam.
ASRUMATI DEBI
v.
KUMAit ItUPENDRA DEB RAIKOT
AND OTHERS.
[PATANJALI SASTRI C. J., MUKHERJEA,
VIVIAN BOSE and BHAGWATI JJ.]
Letters Patent (Calcntta High Court), els. 18, 15-0rder for
tmnsfer of suit 1mde>· cl. 18-Whetlier "jiul,gment"-Appealability
-Meaning of "judgment".
An order for transfer of a suit, made under clause 13 of the
Letters Patent of the Calcutta High Court is not a "judgment"
within the meaning of clause 15 of the Letters Patent and no
appeal lies therefrom under the Letters Patent, as it neither
affects the merits of the controversy between the parties in the
suit itself, nor terminates or disposes of the suit on any ground.
[Meaning of the word "judgment" rliscussed].
Khatizan v. Sonairam (I.L.R. 4 7 Cal. 1104), Jttstices of the
Peace for Calcutta v. Oriental Gas Co.
(8 Beng. L.R. 433),
Dayabhai v. Mui·ugappa Chettiar (I.L.R. 13 Rang. 457), 'l'uljarain
v. Alagappa (I.L.R. 35 l\fad. 1), Matlmra Sundari v. Haranchandra
(I.L.R. 48 Cal. 857), Chandicharan v. Jnanendra (29 C.L.J. 225),
£e,, Badin v. Upendra l'>fohan RmJ Chowdhry (39 C.W .N. 155),
Kunwar Lal Singh v. Uina Devi (A.I.R. 1945 Nag. 156), Smikrw
Deo v. Kalyani (A.LR. 1948 Nag. 85), Sha/lzadi Begum v. Alaknath
(I.L.H. 57 All. 983), Shaw Bari "· Sonalwwl Beli R"m (I.hR. 23
•
a.J.
1153
li'eb. 27