A NESAMONY Vs. T M VARGHESE AND STATE

JUDGEMENT

(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. 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.) 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. 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.