K VENKATACHALAM Vs. A SWAMICKAN

JUDGEMENT

(1.) Division Bench of the High Court of Judicature at Madras by its judgment dated April 23, 1986 in writ appeal declared that K. Venkatachalam, appellant before us, was not qualified to sit as a member of the Legislative Assembly in Tamil Nadu as he did not possess the basic qualifications prescribed in Cl. (c) of Art. 173 of the Constitution read with S. 5 of Representation of the People Act, 1951 (for short 'the Act'). The Division Bench held that the appellant was not an elector for Lalgudi Assembly Constituency and, therefore, did not possess the necessary qualification to be chosen from that constituency. High Court passed the impugned judgment in exercise of its jurisdiction under Art. 226 of the Constitution. A single Judge of the High Court had, however, earlier dismissed the writ petition challenging the election of the appellant on the ground that it was not maintainable under Art. 226 of the Constitution in view of bar contained in Cl. (b) of Art. 329 of the Constitution.

(2.) General elections to the Legislative Assembly in Tamil Nadu were held in December, 1984 and both Venkatachalam, the appellant and Swamickan, respondent were the candidates. In the result declared Venkatachalam was elected. A year after the date of election of Venkatachalam, petition under Art. 226 of the Constitution was filed by Swamickan for a declaration that Venkatachalam was not qualified to be member of the Tamil Nadu Legislative Assembly representing Lalgudi Assembly Constituency since he was not elector in the electoral roll of Lalgudi Assembly Constituency for the general elections in question. He also prayed alternatively for writ of quo warranto directing Venkatachalam to show under what authority he was occupying the seat in Tamil Nadu Legislative Assembly as a member representing Lalgudi Assembly Constituency. Swamickan did not present any petition calling in question the election of Venkatachalam under S. 81 of the Act. He alleged that Venkatachalam impersonated him for another person of the same name in the electoral roll of Lalgudi Assembly Constituency and thus sworn a false affidavit that he was elector of that constituency. It was alleged that the act of Venkatachalam was fraudulent and a criminal act, which came to be known to Swamickan after he scrutinized the entire electoral roll of the Lalgudi Assembly Constituency.

(3.) By judgment dated December 3, 1985 a learned single Judge of the High Court dismissed the writ petition holding that Art. 329(b) of the Constitution was a complete bar when remedy was available under the Act. Aggrieved Swamickan filed writ appeal which, as noted above, was allowed by the Division Bench of the High Court by judgment dated April 23, 1986. High Court held that it was not powerless in exercise of its jurisdiction under Art. 226 of the Constitution from declaring that the election of Venkatachalam was illegal inasmuch as he did not possess the basic constitutional and statutory qualifications. Aggrieved Venkatachalam got leave to appeal to this Court. His main contention has been that having regard to the provisions of Art. 329(b) of the Constitution, High Court could not exercise its jurisdiction under Art. 226 of the Constitution and further that a writ of quo warranto could not be issued after lapse of one year at the instance of the candidate who was defeated in the elections.