THANKAMMA N MENON Vs. A M THOMA

JUDGEMENT

(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. 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. 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. 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. 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.