Thankamma N. Menon v. A. M. Thoma — 1952 DIGILAW 8 (KER)

Judgment :- 1. The petition is filed under Art.226 of the Constitution of India for directions, orders, or writ of prohibition or any other appropriate writ to the respondents in order that the petitioner may be allowed to continue her membership and retain her seat in the Legislative Assembly and also to direct the 1st respondent, the Honourable Speaker of the Legislative Assembly, Travancore-Cochin State to administer oath to her and to allow her to take her seat in the Assembly. The petitioner was returned unopposed in a bye-election held in August 1951 to the Travancore-Cochin Legislative Assembly with regard to 43, Ernakulam Women Constituency which fell vacant. Her election was duly notified in a Gazette Extra-ordinary dated 10.9.1951. The only other candidate who had filed the nomination paper for this seat was one Dr. Madhavi Amma. 26.8.1951 was the last date fixed for the withdrawal of the nomination paper. That was a period of unrest among the members in the assembly. The ministry had been reconstituted and none from the Cochin members had been included in the Cabinet of Ministers. Some of the members from the Cochin group had even tendered their resignation of their membership and protested against the exclusive formation of the ministry from among the members of the Travancore area. Negotiations for re¬approchment were pending at that time. So some prominent persons including some leaders of the seceding party approached the petitioner with a proposal that they would persuade the rival candidate to withdraw her candidature so as to enable the petitioner to be returned unopposed, if the petitioner would, if necessary, record her protest against the exclusion of the Cochin members from the ministry. One Sri. K.B. Mohamed, along with Sri. Pullayil Krishnankutty Menon induced the petitioner to sign a paper to the effect that she resigned her membership, though on that day she was not even a member. They had also expressly told her that the paper would not be used by them against the petitioner's wishes. The petitioner accepted their suggestion and advice and wrote out on a piece of paper to their dictation that she had resigned her membership in the Assembly. That was purported to be addressed to the Speaker, Legislative Assembly, Trivandrum. There was no date put on it, as it was not intended to be used. The petitioner accepted their suggestion and advice and wrote out on a piece of paper to their dictation that she had resigned her membership in the Assembly. That was purported to be addressed to the Speaker, Legislative Assembly, Trivandrum. There was no date put on it, as it was not intended to be used. This note was prepared on 26.8.1951, the date fixed for the withdrawal of nominations submitted by her candidature. Subsequently, her rival candidate withdrew her candidature, so that eventually she was declared to have been returned unopposed. This letter was written even before she became a member. It was given only as earnest of giving a real letter of resignation if subsequent events and political situation called for it. It was also clearly understood that this paper would be returned to her and that she would write a proper letter of resignation with the date thereon in case that became necessary. This paper was handed over Sri. Pullayil Krishnankutty Menon who was helping her in her candidature, and in whom she had placed full confidence. When the political situation eased and some of the members from Cochin group were proposed to be included in the ministry, the petitioner demanded the return of that paper from Sri Pullayil Krishnankutty Menon. He first began to prevaricate, but later, said that he might despatch it. This aroused rank suspicion in her mind and she pointed out to him that it was clear breach of faith to withhold it. In order to prevent foul play and mischief the petitioner despatched an express telegram to the first respondent, the Hon'ble Speaker, on 4.9.1961. She also posted a letter the same day confirming the telegram. This telegram intimated the first counter-petitioner that an undated letter purporting to be her resignation of assembly membership was understood as being despatched, that she did not confirm the same, that if any such letter should happen to reach him, her present letter might be considered as a withdrawal of the contents therein, and that no action was to be taken on any such letter. The next day she sent another letter to the same effect by registered post. The next day she sent another letter to the same effect by registered post. On 10.9.1951, the petitioner received from the Secretary, Legislative Assembly, a requisition to the effect that she should make it convenient to be present in the Hon'ble Speaker's Chambers at 10.45 a.m. on 17.9.1951 for the purpose of taking the oath of office. The petitioner was away in Rameswaram from the 13th to 15th September 1951 and so she sent a reply to the Secretary on 16th September 1951 that she would be able to go to Trivandrum for swearing only on the 24th September. The petitioner attended the session on the 24th September 1951 and the first counter-petitioner asked her to take her seat and promised to swear her in after lunch. After some time, an Hon'ble member Sri. P. Nanu raised a point of order whether the petitioner was entitled to take her seat before taking oath and whether it was true that she had resigned her membership. The Hon'ble Speaker replied that as the petitioner had been elected as a member she was entitled to take her seat, that the other question did not arise then, and that the same would be considered later. Despite the assurance given by the Hon'ble Speaker in the morning, the oath was not administered to the petitioner by the first counter-petitioner on that day. The next day an official communication was handed over to her by the Secretary, Legislative Assembly, stating that a letter dated 13.9.1951 purporting to be the petitioner's resignation of her membership was received by the Hon'ble Speaker on 17.9.1951, and that she might confirm or repudiate the authorship of that letter. There was no reference in it to the petitioner's telegram and the letter of 4.9.1951 or the registered letter of the next day. 2. On 1.10.1951, the petitioner personally handed over a reply to the Secretary, Legislative Assembly, explaining in detail the circumstances under which the undated letter, which was not intended to operate or to be used as a letter of resignation, happened to be handed over to the aforesaid Sri. Pullayil Krishnankutty Menon, even before the petitioner was declared elected to the assembly. It was pointed out that it was clearly a breach of faith to forge the date in that letter and despatch it to the first counter petitioner as if it was sent by the petitioner. Pullayil Krishnankutty Menon, even before the petitioner was declared elected to the assembly. It was pointed out that it was clearly a breach of faith to forge the date in that letter and despatch it to the first counter petitioner as if it was sent by the petitioner. The circumstances were also explained by her to the Hon'ble Speaker. She was however surprised to receive a copy of the notification dated 15.10.1951 from the Secretary, Legislative Assembly, that the petitioner had resigned her seat in the Travancore-Cochin Legislative Assembly with effect from 13.9.1951. That was neither true nor correct. The procedure adopted by the first counter-petitioner - the Hon'ble Speaker - and the second counter-petitioner - the State of Travancore-Cochin was ultravires and erroneous. After the explanation tendered by the petitioner, the first counter-petitioner should have held that the petitioner did not "resign her seat by writing under her hand". The petitioner anticipated foul play and the necessary authorities had been informed of this sufficiently early. The resignation referred to in Art. 190 of the Constitution should be a genuine and voluntary resignation, and a fraudulent letter despatched by post with forged date by a third party without authority would not come under this section. The petitioner's reply was a repudiation of the letter as a letter of resignation and her telegram and letters of the 4th and 5th September would show that she had repudiated the gunuine character of the alleed letter of resignation. The action of the first counter-petitioner was illegal, inequitable and opposed to natural justice. The letter itself was despatched by registered post at Ernakulam on the 14th September 1951 when the petitioner was in Rameswaram. She therefore contends that her seat in the assembly has not become vacant, that she continue to be a member and retains her seat and is entitled to exercise all the rights and privileges of member of the Legislative Assembly, and that in view of the communication received by the petitioner from the Secretary of the Legislative Assembly, the petitioner is obliged to seek redress in this court against the action of the counter-petitioners. The petitioner therefore prays that this court may be pleased to enquire into the matter and issue directions, orders, writ of prohibition, or any other appropriate writ, which this court deems fit, to the counter-petitioners, to abrogate the said notification and allow the petitioner to continue her membership and retain her seat in the assembly, and also to direct the first counter-petitioner to administer oath to her and allow her to take her seat in the assembly. 3. An affidavit in support of the several facts mentioned in the petition has also been filed along with the petition. The original letters received by the petitioner from the Secretary of the Legislative Assembly and copies of letters sent by her along with postal acknowledgements are filed as annexers A to J. An affidavit from Sri. P.S. Parameswara Iyer, the agent for the Hindu, Madras in Rameswaram is also attached to the petition. This was intended to show that she was in Rameswaram on the 13th and 14th of September 1951, that she left the place only on the 15th and that he had made the necessary arrangements for the stay of the petitioner and her party in Rameswaram. Three other affidavits, one from Sri. K.B. Mohammed, mentioned in the petition, another from Sri. Narayanan and a third from Sri. Kelambi are also attached to the petition. Sri. K.B. Mohammed is a municipal conciller of the Ernakulam Municipality for the last ten years and was its chairman for about four years. In that affidavit he had stated that there was great randour in the hearts of Cochin members of the Legislative Assembly against the Travancoreans on account of the non-inclusion of Cochinites in the Cabinet, that Janab K.G.M. Mather and some other persons of influence took him and Sri. Pullayil Krishnankutty Menon to the petitioner with a proposal that they would induce Dr. Madhavi Amma to withdraw, provided the petitioner was prepared to tender her resignation if the unpleasant political crisis continued, that the petitioner agreed to this, and at the instance of some of them she wrote out on a piece of paper that she resigned, that this was done at about noon on the 26th August 1951, that subsequent to this Dr. Madhavi Amma withdrew her candidature, that the paper signed by the petitioner was handed over at their instance to Sri. Madhavi Amma withdrew her candidature, that the paper signed by the petitioner was handed over at their instance to Sri. Pullayil Krishnankutty Menon, so that it could be shown to others as an indication of protest, that this paper was not intended to be used as a letter of resignation, that she had however promised to write out and sign a formal solemn letter of resignation in case the Travancore Cabinet remained stubborn, and that it was also promised by them that if the situation grew better, this piece of paper would be returned to her. Sri. Narayanan was then present in the petitioner's house. He is one who pays a sale tax of about Rs. 2000, income-tax of about Rs. 800, and land tax of about Rs. 100 a year. He confirms the statement made by Sri. K.B. Mohammed in his affidavit. Sri Kelamabi is a Managing Director of a bank. He pays land revenue to the extent of Rs. 49. He was also present when the negotiations were carried through, at about the noon of 26.8.1951, and he supports the other two deponents. 4. Notice of this petition was given to the counter-petitoners. The Secretary to the Legislative Assembly has filed a counter affidavit. He does not say anything about the circumstances under which the letter which bore the date 13.9.1951 was written and signed by the petitioner. He would say that the Hon'ble Speaker and the Assembly Office were unware of the allegations, and that they were entirely irrelevant for the determination of the issue. According to him, when the Hon'ble member Sri Nanu raised the point of order, the reply of the Hon'ble Speaker was to the effect that Mrs. Menon (the petitioner) has been elected as a member and that she is to occupy a seat for the purpose of being sworn in and for that purpose alone. In paragraph 4 of the affidavit he admitted the letter sent by him to the petitioner on 25.9.1951 and the reply received. In paragraph 8 of the affidavit by the petitioner she had stated that no reference was made, in the letter of 25.9.1951, or thereafter, by either, the first counter petitioner or the Secretary, to the petitioner's telegram and letter of the 4th September 1951 and her registered letter of the next day. In paragraph 8 of the affidavit by the petitioner she had stated that no reference was made, in the letter of 25.9.1951, or thereafter, by either, the first counter petitioner or the Secretary, to the petitioner's telegram and letter of the 4th September 1951 and her registered letter of the next day. To this the reply was that there was no need to mention the early resignation correspondence in that letter. In the counter-affidavit it was further stated that the letter of resignation was received by the Honourable Speaker by registered post on the 17th September, that the same was opened by him in the Secretary's presence, initialled and handed over to him, that the allegation in the petitioner's affidavit regarding the procedure adopted and the decision come to by the Hon'ble Speaker were without substance that the petitioner was not entitled to a writ, that the Civil Courts had no jurisdiction to entertain or consider a matter which was purely one that related to the privileges of members and the procedure to be adopted by the House of Legislature, that a member's resignation automatically put an end to his or her membership under Art. 190(3)(b) of the Constitution, that no question of acceptance of resignation arose, that resignation was unilateral act, that no power was vested in any authority to accept or reject the same, and that since the authorship of the letter was admitted, it was no part of the function of the Hon'ble Speaker to go further into the matter. The petition was therefore pressed to be dismissed with costs. 5. I shall first consider the preliminary objection raised by the Advocate General on behalf of the counter-petitioners. It was stated that the Civil Courts have no jurisdiction to go into the question raised in the petition and he relied on C1.2 of Art. 212 of the Constitution and also on Art. 188. Art. 212, Cl. 2 reads as follows: "No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers". 2 reads as follows: "No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers". It was argued that the matters complained of in the petition related to the conduct of business, and as such, the courts have no jurisdiction. Arts. 188 and 189 are given under the heading "Conduct of Business". "Every member of the Legislative Assembly or the Legislative Council of a State shall before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath, or affirmation according to the form set out for the purpose in the Third Schedule". Part VI of the Constitution relating to the States in Part A of the First Schedule are made to apply to the States in Part B of the same Schedule with slight modifications, of which we are not concerned in this petition, except to substitute "Rajapramukh" for Governor. The business of the House is to be conducted by the members thereof in the assembly presided over by the Speaker or the Deputy Speaker or in their absence by the Chairman nominated by the Speaker under R. 7 of the Travancore-Cochin Legislative Assembly rules. Necessarily therefore, the members are to take their seat in the Assembly for this purpose. What Art. 188 provided for was that the members before taking their seats should make or subscribe an oath or affirmation before His Highness the Rajpramukh or some person appointed by him in that behalf. The taking of oath is therefore not an item in the conduct of business mentioned in Art. 212, but it allows the members to sit in the Assembly and take part in the conduct of the business of the Assembly. So it is only a condition precedent to entitle the members to sit in the Assembly and conduct the business. There is also another reason why the Learned Advocate General's objections cannot be sustained. 6. Art.212(2) relates to the business conducted by the officers of the assembly or the members thereof in whom powers are vested by or under the Constitution. The officers of the assembly are mentioned in Art. 178. There is also another reason why the Learned Advocate General's objections cannot be sustained. 6. Art.212(2) relates to the business conducted by the officers of the assembly or the members thereof in whom powers are vested by or under the Constitution. The officers of the assembly are mentioned in Art. 178. They are the Speaker and the Deputy Speaker of the Legislative Assembly (the Chairman and Deputy Chairman of the of the Legislative Council or panel of Chairman nominated by the Hon'ble Speaker). The Hon'ble Speaker is therefore an officer of the assembly and the ruling that he gives in the conduct of business may not be subject to the control of the Civil Courts. But it can easily be seen from Art. 188 of the Constitution that the oath to the member is to be administered by His Highness the Rajpramukh or by some one appointed by him in that behalf. So the administration of the oath is not a function exercised by the Hon'ble Speaker in his official capacity. It may be, that His Highness the Rajpramukh may appoint him to administer the oath, just as it is competent for His Highness to appoint any one else or the same purpose. It might be that in this case, His Highness the Rajpramukh had been pleased to authorise the Speaker to administer oath to the members; otherwise there was no necessity for the Secretary of the Assembly to write to the petitioner on 10.9.1951 to be present in the Speaker's chambers to take the oath. But that will not give him any special prerogative to seek shelter under Art. 212. His refusal to administer the oath would not therefore clearly come under Art. 212. The learned Advocate General referred me to Bradlaugh v. Gossett (12 QBD 271). There, the House of Commons passed a resolution to expel one Mr. Bradlaugh, who was duly elected a burgess to serve in the House of Commons for Northampton and for that purpose the Serjeant-at-Arms was given the authority to take the necessary steps. It was this resolution that was called in question in this case. There, the House of Commons passed a resolution to expel one Mr. Bradlaugh, who was duly elected a burgess to serve in the House of Commons for Northampton and for that purpose the Serjeant-at-Arms was given the authority to take the necessary steps. It was this resolution that was called in question in this case. It was held there that the House of Commons was not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which had relation to its internal procedure only, and that what was said or done within its walls could not be inquired into in a court of law. But this ruling has no application to the matter at issue in this case. There is no other provision in the Constitution disentitling the Civil Courts from going into questions of the nature now before me. Under Art. 226 of the Constitution, the High Court has jurisdiction to issue to any person or authority, including in appropriate cases any Government, within those territories directions, order or writs, for the enforcement of any of the rights conferred by Part III and for any other purpose. The preliminary objection is therefore overruled. 7. Art.190(3) provides, that if a member of a House of the Legislature of a State 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. This provision necessarily indicates that the letter of resignation must proceed from the member and that the resignation must relate to a membership held by the person who sends the same. The mere receipt by the Speaker of a letter of resignation purporting to be from a member will not cause that member's seat to become vacant. It is open to the Hon'ble Speaker to enquire whether that is a genuine letter or a forged letter, for one obtained by fraud or force is only a void document. The position taken, that the Hon'ble Speaker has no right to enquire into any matter relating to resignation cannot therefore be sustained. What is contemplated in the section is a resignation with the full consent of the writer of his or her own volition and not any letter of resignation. From the facts placed before me and the allegations not controverted by the opposite parties. What is contemplated in the section is a resignation with the full consent of the writer of his or her own volition and not any letter of resignation. From the facts placed before me and the allegations not controverted by the opposite parties. I take it that the following facts are to be established. 8. There was a vacancy of a seat to the Assembly from 43, Ernakulam Women Constituency. The petitioner and Dr. Madhavi Amma were candidates who stood for election for that seat. The latest date for withdrawal of the candidature was 26.8.1951. Before Dr. Madhavai Amma withdrew her candidature, the petitioner had given the alleged letter of resignation to Sri Pullaiyil Krishnankutty Menon for the purpose and under the conditions mentioned by the petitioner. On suspicion of foul play she had intimated the import of that letter and the circumstances under which it was written to the Hon'ble Speaker. It was not dated then. Before the date which is now borne by that letter, that is, 13.9.1951, she had informed the Speaker that it was not a letter of resignation and that she withdrew the contents thereof. After the petitioner gave the letter in question Dr. Madhavi Amma withdrew her candidature, and the petitioner was declared elected by the Gazette Notification dated 10.9.1951. This Gazette Notification was after the Hon'ble Speaker and the Secretary of the Assembly were apprised of the real nature of the alleged resignation letter handed over by her to a third party. It was also after the receipt of her letters of the 4th and 5th September that the Secretary invited her to be present on the 17th September to take the oath of office. Meanwhile, the letter given by the petitioner to Sri. Pulllayil Krishnankutty Menon was given a date 13.9.1951 without the knowledge and consent of the petitioner and it was sent by registered post to the Hon'ble Speaker who received it on 17.9.1951. At the time this date was inserted on the letter sent by registered post on 14.9.1951 from Ernakulam, the petitioner was nowhere here. The petitioner presented herself for taking oath on 24.9.1951 and she was allowed a seat in the assembly for the purpose of taking oath. On the 25th September the Secretary asked her by a letter about the genuineness of the alleged resignation letter and she gave her reply on 1.10.1951 explaining the circumstances. The petitioner presented herself for taking oath on 24.9.1951 and she was allowed a seat in the assembly for the purpose of taking oath. On the 25th September the Secretary asked her by a letter about the genuineness of the alleged resignation letter and she gave her reply on 1.10.1951 explaining the circumstances. This was followed by a notification by the Secretary that the seat in the assembly had become vacant from 13.9.1951. 9. The letter in question was in the hands of the learned Advocate General and on the motion of the petitioner, it was directed to be produced. The letter was shown to me at the time of the argument by the Advocate General and I saw that the date was put in a different ink. It was abundantly clear that the date was not there when the letter was handed over to Sri Pullayil Krishankutty Menon by the petitioner. Her repudiation of the same on the 4th September 1951 would clearly indicate this. These facts would show that the letter of resignation was not intended to be one resigning her seat, for at that time she was not even an elected member of the Legislative Assembly. Her securing the seat was after she passed the letter, after which alone Dr. Madhavi Amma withdrew her candidature. She cannon resign prospective statists which she may or may not get in the ordinary course of events. I would therefore hold that the letter is a void document and by virtue of that, the petitioner had not lost her seat in the assembly. It follows from this, that the Hon'ble Speaker to whom the power to administer oath had been delegated acted wrongly in not administering oath and thereby refusing the petitioner a seat in the assembly. She is therefore entitled to an order or direction being issued to administer oath to the petitioner and to allow her to take a seat in the assembly, thereby enjoying all the rights and privileges of a Hon'ble member of the Assembly. Ordered accordingly. 10. Since the whole trouble arose out of the inadvertence of the petitioner, she is not allowed the costs of this petition. The counter-petitioners also raised unnecessary questions regarding the maintainablity of the petition and other matters in this enquiry. They will also suffer their costs. Allowed.