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1950 DIGILAW 110 (KER)

Nesamony v. Varghese

1950-11-22

KUNHI RAMAN, SUBRAMONIA.IYER

body1950
Judgment :- 1. This is an appeal from the decision of Mr. Justice Govinda Pillai in O.P. No. 11 of 1950. The learned judge dismissed the petition and the petitioner has, therefore, come up in appeal before this court. 2. The question raised in the Original Petition related to the construction of Art. 385 of the Constitution of India with reference to the position of the Speaker of the Legislative Assembly of this State. The Speaker is the sole respondent in this appeal. He is represented by the learned Advocate General. 3. The prayer in the Original Petition was for the issue of a writ in the nature of a quo warranto calling upon the respondent to show cause under what right or authority he is holding office and exercising the powers of the Speaker of the Legislative Assembly of the State. The contention urged on behalf of the appellant is that the office of the Speaker became vacant when the new Constitution of India came into force and that it should have been filled by a fresh election. The appellant has raised this question in the Legislative Assembly when it met under the Constitution, but his objection was over ruled by the respondent Speaker who held that a fresh election was not necessary. Having failed to gain his point, he is seeking legal redress by invoking the powers vested in the High Court to issue writs. 4. To appreciate the contentions of the parties, it is necessary to set forth briefly how the Legislative Assembly of this State was formed before the new Constitution of India came into being and how the respondent became the Speaker of that Assembly. Under the Covenant entered into on the 29th of May 1949 by the Rulers of Travancore and Cochin with the Government of India, the Legislative Assembly of this State was constituted, the members of the Assembly having been elected by the constituencies in the State. The respondent was one of the members so elected. He was subsequently duly elected as the Speaker of the Legislative Assembly and as such he was exercising the powers and discharging the duties of that office when the new Constitution came into being. 5. Part XXI of the new Constitution contains certain temporary and transitional provisions. A Legislative Assembly has to be elected under the new Constitution. He was subsequently duly elected as the Speaker of the Legislative Assembly and as such he was exercising the powers and discharging the duties of that office when the new Constitution came into being. 5. Part XXI of the new Constitution contains certain temporary and transitional provisions. A Legislative Assembly has to be elected under the new Constitution. The date for that election had not yet been fixed, and therefore, provision had to be made for the functioning of a Legislative Assembly during the period of the interregnum. This State is placed in the category, Part B in the 1st schedule to the Constitution. For the sake of brevity and convenience it will be referred to in this judgment as one of the Class B States in contra-distinction to the Class A States, for instance, like Madras and Bombay, which are placed in that category in the Schedule. The latter Class will be referred to hereinafter as Class A states. 6. The Articles in the new Constitution which provide for provisional legislatures functioning in Class A and Class B States respectively are Art.385 and 385. It would be convenient to read Art.385 in the first instance. "Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified." The appellant's case is based on the fact that there is no express reference made to the Speaker of the Legislature in this Article Provision is made for "the body" or "the authority" functioning as the Legislature in Class B States continuing to do so provisionally under the new Constitution. In this State since there was already a Legislative Assembly we are concerned only with the part of the Article dealing with the body which functioned as Legislature of the state. The object of Art. 385 is inter alia to provide for the continuance of that body as a temporary measure, before the election of a legislature under the new Constitution. The object of Art. 385 is inter alia to provide for the continuance of that body as a temporary measure, before the election of a legislature under the new Constitution. This body is authorised to exercise the powers and perform the duties conferred by the new Constitution on the House or Houses of Legislature of the State. 7. The Legislative Assembly of this State which, as already mentioned, was constituted under the Covenant, thus continues to function under Art.385. But what is contended on behalf of the appellant is that the continuance of the Legislative Assembly under the new Constitution does not automatically entitle the Speaker who was elected by the Assembly constituted under the Covenant to continue in office after the new Constitution came into being, because the Article does not contain any such express provision. The argument is sought to be implemented by referring to the provisions of Art. 382 of the Constitution which deals with the Legislatures in Class A States. The first Clause of that Article is almost similar in wording to Art. 385. In Cl. (3) of that Article there is express provision made for the Speaker of the Legislative Assembly of a province to be the Speaker of such Legislative Assembly while it functions under Cl. (1). It is contended on behalf of the appellant that the omission of a similar provision in Art. 385 in the case of the Legislative Assemblies in Class B States is significant. Such omission, according to the appellant's learned Counsel, indicates that the intention of the framers of the Constitution was to prolong the life of the earlier Legislative Assembly of a Class B State, but not to extend the term of the Speaker thereof elected under the earlier Constitution. The question for determination is whether this contention is well founded. 8. According to Ordinances Nos. 3 and 8 of 1124 M.E. promulgated in the State, the Speaker elected under the former ordinance was to be declared the first Speaker of the legislative Assembly. According to S. 6(C) the circumstances in which the member holding the office of Speaker shall vacate office are the following. 1. If he ceases to be a member of the Assembly. 2. If he resigns. 3. If he is removed for want of confidence by a resolution of the Assembly by a majority of all the then members. According to S. 6(C) the circumstances in which the member holding the office of Speaker shall vacate office are the following. 1. If he ceases to be a member of the Assembly. 2. If he resigns. 3. If he is removed for want of confidence by a resolution of the Assembly by a majority of all the then members. There are similar provisions in Art. 179. According to Art. 385 the body which functioned immediately before the commencement of the Constitution was the Legislative Assembly with the respondent as the Speaker, he being also a member of the Legislative Assembly. The natural meaning that can be attributed to the clause that this body shall exercise the powers and perform the duties conferred by the new Constitution would give a continuity of existence as a temporary measure to the Speaker as well, especially in view of the fact that the circumstances in which his right to continue as such can be terminated are clearly specified in the old Ordinance and none of those contingencies have admittedly happened. No doubt, the Ordinance is transitory, its operation being for a temporary period. But we are here concerned with the construction of Art. 385 of the new Constitution. Since this Article authorises the Legislative Assembly constituted under the Ordinance to continue to exist and to function by exercising the powers and performing the duties mentioned in the Constitution the fact that the Ordinance remained in force only for a temporary period cannot affect the legal position. 9. One of the fundamental principles of interpretation of statutes is that the construction most agreeable to justice and reason should be adopted and the presumption is against the intention of the statute being to cause injustice or to result in absurdity. When there is a statute which is likely to encroach on vested rights, it is a well known rule that the provision must be strictly construed. This is mentioned in Maxwell's Interpretation of Statutes, 9th Edn., Page 289, S. 2: "Statutes which encroach on the rights of the subject whether as regards person or property, are similarly subject to strict construction. This is mentioned in Maxwell's Interpretation of Statutes, 9th Edn., Page 289, S. 2: "Statutes which encroach on the rights of the subject whether as regards person or property, are similarly subject to strict construction. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights." See Walsh v. Secretary of State for India (1863) 10 House of Lords Cases 367,386 Lord Westbury, Marshall v. Black Pool Corporation, (1932), I.K.B. 688; Bowen, L.J. Hough v. Winduz (1884) 12 Q.B.D. 224; Druce and Company v. Beaumont Property Trust (1935) 2 K.B. 257,264." If the construction suggested on behalf of the appellant is adopted, the result will be that the Speaker, the termination of whose office could take place only if one of the three contingencies happened which are not proved to have happened in this case, would be deprived of his office and that is a construction which would be repugnant to the principle adverted to above. If there are express words used in the provision relied upon by the appellant's learned counsel the position may be different. But here he is asking the Court to draw an inference adverse to the Speaker by implication. Too great a stress cannot be laid in construing the Article of the Constitution on grounds of analogy. To adopt that as the basis may lead to absurd consequences. For instance, it may with equal force be argued on behalf of the respondent that there is an express provision in the proviso to Art. 382 which requires that in a newly elected Assembly in a Class A State, the Speaker and Deputy Speaker shall be elected. There is no such provision in Art. 385 with regard to the assembly in a Class B State which is authorised to continue to function under the new Constitution. It is not expressly laid down here that when it functions under the new Constitution it shall elect its Speaker. In construing these Articles, the duty of the court is not to speculate about the intention of the Legislature, but to construe the Articles in the light of the words in them. This is put as follows in Maxwell's Interpretation of Statutes, Page 4. In construing these Articles, the duty of the court is not to speculate about the intention of the Legislature, but to construe the Articles in the light of the words in them. This is put as follows in Maxwell's Interpretation of Statutes, Page 4. "The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. The words cannot be construed contrary to their meaning as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands according to the real sense of words". In our judgment, by reason of the provision for the continuity of the existence of the State Legislative Assembly the Speaker who is an essential part of the Assembly is also intended to continue in office, in the absence of express words to the contrary. 10. The learned Advocate General raised an interesting contention to the effect that a court of law has no jurisdiction to deal with the question raised in this appeal, because it is contrary to the provision of Art. 212, Cl. (2) of the Constitution of India. Learned counsel also referred to the passage in May's Parliamentary Practice relating to the jurisdiction of Courts and quoted as authorities in support of his proposition Bradlaugh v. Gosset (1884) 12 Q.B.D. 271; Dicey's Law of the Constitution 1950, pages 68, 70 & 81; Dominion Law Reports (Canada) 1943 Vol. II page 544 and certain other cases. We entertain no doubt that when the matter in controversy has nothing to do with the exercise by an officer of the legislature like the respondent of the powers vested in him, but is concerned with the interpretation of a relevant provision of law which is alleged to affect his legal right to continue in office, a court of law does have jurisdiction to deal with the matter. It is unnecessary to dilate on this question in the view we have taken of the merits of the present appeal. 11. The appeal must in the circumstances be dismissed with costs. Advocates' fee Rs. 150. 12. The appellant's learned counsel at this stage asks for a certificate under Art.132(1) of the Constitution of India according to which an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution. We regret we are not satisfied that in this case there is any substantial question of law within the meaning of this Article and, therefore we decline to grant the certificate. Dismissed.