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1950 DIGILAW 40 (KER)

A. Nesamony v. T. M. Varghese and State

1950-06-27

GOVINDA PILLAI

body1950
Judgment :- 1. The petitioner Sri. A. Nesamony, Advocate and member of the Legislative Assembly of the Travancore-Cochin State has filed this petition to issue a rule upon the counter-petitioner Sri. T.M. Varghese holding the office of the Speaker of the said Assembly to show cause why an information in the nature of Quo Warranto regarding the right under which he was holding this office should not be filed. If after hearing the petition the Court came to the conclusion that the counter-petitioner was holding his office as Speaker without any right or authority under law as provided for in the Constitution of India then it was prayed to declare the said office vacant and to pass consequential orders. The petitioner stated as follows: 2. The body functioning immediately before the Constitution of India, as the Legislature of the Travancore-Cochin State, was the Legislative Assembly constituted under the covenant entered into by the Rulers of Travancore and Cochin under date the 29th day of May 1949. The person holding office as Speaker of that Assembly was the counter-petitioner who was a member thereof and elected to the said office by that Assembly. He was accordingly exercising the powers of Speaker till immediately before the commencement of the Constitution. On the commencement of the Constitution on the 26th day of January 1950, the said Assembly had been empowered by Art.385 of the Constitution to exercise the powers and perform the duties of the House of Legislature for the State until certain specified contingencies happened. Although the said Assembly had been allowed to continue under the Constitution, the person holding the office immediately before the commencement of the Constitution as President of the Assembly had not by any provision of the Constitution been allowed ipso facto to be the Speaker of the House of Legislature unlike as it was expressly provided for in C1.3 of Art.382 of the Constitution in respect of the Legislatures functioning in the States in Part A of the First Schedule of the Constitution. According to the petitioner, therefore, on or from the 26th day of January 1950, the counter-petitioner had no right or authority to be the Speaker of the Legislative Assembly of the Travancore-Cochin State under the Constitution. According to the petitioner, therefore, on or from the 26th day of January 1950, the counter-petitioner had no right or authority to be the Speaker of the Legislative Assembly of the Travancore-Cochin State under the Constitution. Nevertheless, the counter-petitioner had since the said date occupied and continues to occupy the Speaker's chair and had exercised and still exercises the powers of the Speaker, more particularly on the 6th of March 1950 and subsequent dates when the Assembly had been in session. This conduct on the part of the counter-petitioner was an illegal usurpation of a substantive, independent, public office in which the petitioner and all the citizens of the State were vitally interested in as much as it obviously had considerable effect and influence upon the rights and interests of the people and the general well-being of the State. 3. It is on these allegations that the rule mentioned above was sought to be issued. Subsequently the petitioner had filed an affidavit to show that he was a member of the Legislative Assembly of the State and the leader of the Tamil Nad Congress Party therein. 4. Since no rules had been framed so far to regulate the procedure to be adopted in motions of this kind, the rules framed by the Supreme Court adopting certain procedure to deal with such matters were accepted as guidance in regard to this petition. Under 0.35 R.6 to 9 of the Supreme Court Rules notice of this motion had to be given to the parties affected, as a matter of course. Notice was accordingly ordered to be given to the counter-petitioner. As it was considered proper to hear the State also in addition to the counter-petitioner notice of the petition was given to the Advocate-General on behalf of the State. In answer to the notice, the Advocate General on behalf of the State and on behalf of the counter-petitioner appeared to oppose this petition. As is the usual practice no reply was filed by the counter-petitioner and his advocate stated that he was prepared to argue on the merits of the petition accepting the statement of facts in the petition as correct. It has therefore to be taken that all the averments of facts made in the petition are correct and the argument proceeded on that basis. 5. It has therefore to be taken that all the averments of facts made in the petition are correct and the argument proceeded on that basis. 5. A preliminary objection was taken by the learned Advocate for the counter-petitioner that this petition was incompetent, as a person who had an interest in the subject matter of the dispute alone could move for a rule of this nature and that the petitioner had no such interest. He stated that a defeated candidate in an election for the Speaker's place or a candidate holding some such interest could alone file a petition of this kind. The question of election did not arise in this case, for the petitioner's case itself was that while there should be an election to fill up the Speaker's place, the counter-petitioner was usurping that place without election and without authority. The learned Advocate for the counter-petitioner relied on In re Abdul Rasul I.L.R. 41 Cal. 518 and in the matter of J.M. Sen Gupta v. H.E.A. Cotton ILR 51 Cal. 874 in support of the position that a person who was really affected could alone file a petition for a writ in the nature of mandamus. These two cases arose under S.45 of the Specific Relief Act I of 1877 and the petitions in those cases, if allowed would have enabled the court to issue a writ in the form of mandamus. A writ of mandamus is a Peremptory order of the court commanding somebody to do that which it was his clear legal duty to do. In such cases the applicant must have a legal right to the performance of such duty by the party against whom he made the application. He must however have made a demand for its performance, and compliance must have been refused before the Writ would be issued. On the other hand, an information in the nature of Quo Warranto lay against a person who claimed or usurped an office or franchise or liberty to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined. The two kinds of writs vary considerably in the remedy that could be allowed and in the operation of the same. As was held in R. v. Carmarthen Corporation (1759) 2 Burr. 869 and R.v. White 1836 (5) Ad. and El. The two kinds of writs vary considerably in the remedy that could be allowed and in the operation of the same. As was held in R. v. Carmarthen Corporation (1759) 2 Burr. 869 and R.v. White 1836 (5) Ad. and El. 613 a private relator may apply for an information against the several members of a corporation on grounds affecting their individual titles to show by what authority they respectively claimed to exercise their individual functions. In R.v. Cassel (1916) I.K.B. 595 it had been held that a private relator may apply for an information in cases which concerned the public Government, and accordingly an information may be sought by a private relator against a Privy Councillor calling upon him to show cause by what authority he claims to be a member of the Privy Council. It would therefore be seen that the rulings cited by the counter-petitioner will not apply to the facts of this case. The petitioner is a member of the Assembly of which the counter-petitioner is said to be the Speaker. Apart from his right as a citizen, to see that the Legislature acts and functions properly, he as a member of that Legislative Body has every right to know by what authority the Speaker functions if he bona fide thinks that the Speaker holds the office without authority. He is therefore one competent to file this petition, and I overrule the preliminary objection. 6. Coming to the merits of the averments in the petition it is the petitioner's case, that while provision had been made in Art. 382 in the Constitution of India for the continuance of the Speaker of the Legislative Assembly in Part A States as a Speaker of the Legislature that is to function under the provision of the Constitution, there was no corresponding provision in Art. 385 in regard to the office of the Speaker in the Legislature of Part B States. He referred to Arts. 379, 382 and 385 of the Constitution. In Art. 379(1) provision is made for the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of the Constitution to be the provisional Parliament and to exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. 379, 382 and 385 of the Constitution. In Art. 379(1) provision is made for the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of the Constitution to be the provisional Parliament and to exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. In C1.5 of that Article it was provided that any person holding office immediately before the commencement of the Constitution as Speaker of the Constituent Assembly when functioning as the Dominion Legislature under the Government of India Act 1935 was to be the Speaker on such commencement of the provincial Parliament functioning under Cl. (1). Corresponding provisions had been made in Cls.1 and 3 of Art.382 for the continuance of the House or Houses of Legislature of each State specified in Part A of the First Schedule and the Speaker thereof. When we come to Art. 385 which makes provision for the continuance of the Legislatures in States in Part B of the First Schedule the wording is entirely different. Art. 385 runs thus: "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 Legislature of the State so specified." 7. The Travancore-Cochin State is a State mentioned in Part B of the First Schedule, so that it is this Article that governs this State. 8. At first sight it would appear that the Legislature made an intentional deviation from the provisions relating to the provisional parliament and Legislatures of Part A States, when dealing with the Legislatures of Part B States. As observed at page 118, in "Black on Interpretation of Laws", II Edn., "The mind of the legislature is presumed to be consistent; and in case of a doubtful or ambiguous expression of its will, such a construction should be adopted as will make all the provisions of the statute consistent with each other and with the pre-existing body of the law". In "Maxwell on Interpretation of Statutes" 9th Edn. In "Maxwell on Interpretation of Statutes" 9th Edn. at page 163, it was stated as follows: "An author must be supposed to be consistent with himself, and therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the Legislature is treated in the same manner as that of any other author, and the language of every enactment must be construed as far as possible in accordance with the terms of every other statute which it does not in express terms modify or repeal. The law, therefore, will not allow the revocation or alteration of a statute by construction when the words may be capable of proper operation without it. It cannot be assumed that Parliament has given with one hand what it has taken away with another". Thus the absence of a provision in Art. 385 for the continuance of the office of the Speaker in the Legislative Body of Part B States could be taken to have been intentional on the part of the Legislature if we do not look into the circumstances under which the constitution itself was evolved. 9. The Constituent Assembly had its existence by virtue of S.8 of the Indian Independence Act 1947. The Legislatures in Part A States which were originally known as Provinces had been constituted under S.18 of the Government of India Act 1935. These two Acts were therefore the foundation for the legislative bodies that existed before the Constitution came into force and which are referred in Art.379 and 382 of the Constitution of India. These two Acts of 1935 and 1947 were repealed by Art. 395 of the Constitution. Thus in order to continue the Legislative Bodies formed under these two repealed statutes definite and specific provisions had to be made in the Constitution itself. The Legislatures relating to Part B States which were originally called Native or Princely States were not governed by either of the two Acts mentioned above. The Government of India Act of 1935 would have applied to the Indian States only if they had acceded to the Federation envisaged in that Act. These States had not joined the Federation envisaged in that Act. The Government of India Act of 1935 would have applied to the Indian States only if they had acceded to the Federation envisaged in that Act. These States had not joined the Federation envisaged in that Act. These States had not joined the federation and so they had their own Legislative bodies or authorities to pass the necessary law for them. Thus the Part B States stood on an entirely different footing from the Part A States. 10. The States of Travancore and Cochin had their separate Legislatures. These two States were integrated by a covenant entered into by the Rulers of the two States and concurred in and guaranteed by the Government of India. In Art.10 of that covenant it was provided that there shall be a Legislature for the United State consisting of the Raj Pramukh and the Legislative Assembly. It was further provided that all persons who immediately before the appointed day, i.e., the first day of July 1949 are members of the representative body of Travancore or the Legislative Assembly of Cochin, shall, on that day become members of the Legislative Assembly of the United State. Art.11 gave powers to the Raj Pramukh of the United State to make and promulgate ordinances for the peace and good Government of the United State or any part thereof. Ordinance No. III of 1124 was accordingly promulgated to regulate and control the Travancore and Cochin Legislative Assembly. S.5 to 9 provided for the election of the Speaker to this Assembly. Another Ordinance VIII of 1124 was promulgated to make temporary provision for the working of the Assembly and for certain matters consequential and incidental thereto until other provisions were made by the Legislature. The Speaker elected under Ordinance III of 1124 was to be declared the first Speaker of the Assembly. Cl. (c) of S.6 mentions the contingencies under which the member holding the office as Speaker shall vacate his office. The Speaker could vacate his office only by his ceasing to be a member of the Assembly, by resignation, or by removal for want of confidence by a resolution of the Assembly passed by a majority of all the then members. As seen from the petition, the counter-petitioner had been elected as Speaker under Ordinance III of 1124 and he continued to hold that office by virtue of the provisions in Ordinance VIII of 1124. As seen from the petition, the counter-petitioner had been elected as Speaker under Ordinance III of 1124 and he continued to hold that office by virtue of the provisions in Ordinance VIII of 1124. It was also admitted in the petition that his holding office as a Speaker till 26th January 1950 was legal and valid. The body of authority functioning immediately before the commencement of the Constitution as the Legislature of this State was the Legislative Assembly created by covenant and continued by Ordinances III and VIII of 1124. It is this Legislature that is referred to in Art.385 of the Constitution as the Body or authority functioning as the Legislature in the State. 11. By Art.372(1) of the Constitution explained and amplified by Adaptation of Laws Order 1950, the existing laws in Part B States were allowed to continue. Existing law referred to in Art. 372 is defined in S.2(1) of this Order. It is divided under three categories; existing Central laws, existing Provincial laws and existing State laws. Cl. D of S.2(1) defined existing State law to mean an Act, Ordinance or other Legislative enactment by whatever name called which immediately before the appointed day was a law in force in an Indian State corresponding to the whole or any part of a B State and was passed by the Legislature or other competent authority of such an Indian State, or was made under the Extra-Provincial Jurisdiction Act of Jurisdiction Act of 1947 and includes any rule, order, bye-law or other instrument so in force which was made under any such Act, Ordinance or Legislative enactment. S.18 to 21 provide for the adaptations of the existing State Laws. In the supplementary provision contained in S.22, it was laid down as follows: "Save as is otherwise provided by this order all powers which under any law in force in India or any part thereof were immediately before the appointed day vested in or exercisable by any person or authority shall be continued to be so vested or exercisable until other provision is made by some Legislature or authority empowered to regulate the matter in question." 12. So far as the ordinance which enabled the formation of the Legislative Assembly of the Travancore-Cochin State, no modification had been made in the adaptation of the Laws Order or in any of the orders passed by the President of the Republic of India under C1.2 of Art.372 or C1.1 of Art. 392 of the Constitution of India. In the case of the Central Parliament and the Legislatures in Part A States, the parent Bodies were those which came into existence on the authority of the Government of India Act of 1945 and the Indian Independence Act of 1947. When these two were repealed they were no longer in force and they too do not come under the definition of existing law defined in S.2 of the Adaptation of Laws Order 1950. There is thus the difference between the Legislatures allowed to function in Part A States and those in Part B States. There was therefore the necessity to provide for the continuance of the Houses of the Legislature and the officers therein with all their paraphernalia in Part A States whereas no such necessity existed in the case of the Legislatures in Part B States. The old order in Part B States was therefore allowed to continue except as modified by the Constitution of India. Thus, by the provision in Art. 385 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, the present Legislature is allowed to continue. In construing a statute it is not reasonable to presume that the Legislature intended to violate settled principles of natural justice or to destroy a vested right unless words or expressions indicating the contrary do in clear terms appear in the new statute. Thus since the existing State law was allowed to continue, the Legislative Assembly constituted under such law and the speaker elected as provided for in that law will continue to function, and since there is nothing in the Constitution of India to indicate, that these old orders were not allowed to continue, the contention that the Speaker vacated his office from the date on which the Constitution of India came into effect could not be accepted. 13. 13. An argument was advanced on behalf of the counter-petitioner that all officers in existence before the 26th January 1950 should be allowed to continue and so the Speaker being an officer of the Legislature would continue to hold office automatically without any specific provision for the same. There can be no doubt that the speaker is an officer of the Legislature; though he should necessarily be a member of the Legislative Assembly to get himself elected. As a speaker he has a special status and separate existence apart from the Assembly over which he presides. Though the constitution (Removal of Difficulties) O. No. 2 of 1950 kept in abeyance the second Proviso to Art.178 and Art.8, 9 and 94 of the Constitution and substituted the first part of Art.178, the framing of the Constitution will show that the Speaker is an officer of the Legislature and that even if the Assembly is dissolved he can continue in office until the next Assembly begins to function. 14. The duties of the Speaker, as in the case of the Speaker of the House of Commons, are as various as they are important. He presides over the deliberations of the House, and enforces the observance of all rules for preserving order in its proceedings; he puts every question and declares the determination of the House. As "mouth of the House" he communicates its resolutions to others, conveys its thanks and expresses its censure, its reprimands or its admonitions. He is, in fact, the representative of the House itself, in its powers, its proceedings and its dignity. See page 177 of Sir T. Erskine May's Parliamentary Practice, 12th Edn: 15. Thus the Speaker is an officer of the Legislature but to me it would appear that he will not come under the category of the officers mentioned in Art. 375 of the Constitution relied upon by the learned Advocate-General. S.375 reads as follows: "All courts of civil, criminal and revenue jurisdiction, all authorities and all officers, judicial, executive and ministerial, throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of this Constitution." It refers only to authorities and officers of judicial, executive and ministerial departments and not to those of the Legislatures, I could not therefore accept this argument. 16. 16. After a careful consideration of the several provisions of the Constitution of India and the subsequent orders passed by the President by virtue of the powers vested in him under the provisions of the Constitution, it does not appear to me that the absence of a provision, in Art. 385 of the Constitution of India for the continuance of the Speaker of the Legislative Assembly of Travancore-Cochin State would in any way affect his continuance as such. The provisions relating to the same in Art.379 and 382 were necessitated because of the repeal of the Acts of 1935 and 1947 referred to already. I do not therefore find any ground to confirm the rule issued. It is therefore discharged and this petition is dismissed with costs. Advocate's Fee will be assessed as Rs. 100 (one hundred). Rule discharged and petition dismissed.