MOHAMMED JAFFERKHAN Vs. T H MUSTHAFFA

JUDGEMENT

(1.) In the general elections held on 19-3-1977 for electing members to the Legislative Assembly of the Kerala State, four duly nominated candidates contested from the Alwaye constituency. After counting of votes, on the next day, the returning officer concerned declared one Sri. T. H. Musthafa as elected to the Assembly. Thereupon one of the defeated candidates has filed this election petition challenging the election. Avoiding the unnecessary details it can be broadly stated that the election in question is challenged essentially on two grounds, namely, (a) corrupt practices; and (b) irregularity in the counting of votes. The court ordered notice to the respondents, and on acceptance of summons the 1st respondent entered appearance Instead of filing a regular written statement, the first respondent filed a written objection on 20-6-1977 to the effect that the High Court has no jurisdiction to entertain and decide this petition. Since a similar contention has been raised in certain other election petitions pending trial, on the agreement of parties, the preliminary objection raised by the 1st respondent was heard preliminarily. I may refer to the parties as they are arrayed ia the election petition.

(2.) Since corrupt practice also is alleged as a ground for invalidating the election, the short contention put forward by the first respondent is that in view of Art.192 of the Constitution as it now stands the High Court has no jurisdiction to decide the issue regarding corrupt practice and for declaring the election as void on that ground. Art.192, as it originally stood, was one of the provisions amended by S.33 of the Constitution (Forty-Second Amendment) Act, 1976 (for brevity the Constitution Act). In its present form Art.192 of the Constitution is in the following terms:

(3.) For a correct understanding of the true import of Art.192 as it now stands, it may be necessary to consider the law as it existed prior to the Constitution Act, relating to corrupt practice and disqualification in elections. Art.191 of the Constitution deals with the disqualifications for membership of either House of the legislature of State. Sub clauses (a) to (d) of Clause (1) of that Article mention four categories of disqualifications. Sub clause (e) enables the Parliament to make law to add other grounds of disqualification. The corresponding provision relating to either House of the Parliament is Art.102. Art.329(b) directs that no election to either House of Parliament or to the House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. For the purpose of implementing the various constitutional provisions regarding elections to legislatures and offices, the Parliament enacted certain laws including the Representation of the People Act, 1951 (briefly the Act), with which alone we are concerned in this case. Certain provisions of that Act were subsequently amended by amending statutes, and for the purpose of this case we are concerned with the provisions of the Act as obtained after the commencement of Act 40 of 1975. S.79 to 116 of the Act deal with disputes regarding elections. S.80 enjoins that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. In S.80A(1) it is provided that the court having jurisdiction to try an election petition shall be the High Court. The grounds for declaring an election to be void are contained in S.100. Corrupt practice is one of the grounds, as could be seen from S.100(1)(b) and (d)(ii) subject to the provisions of sub-s.(2). The kind of order that the High Court may pass on an election petition is contained in S.98. If corrupt practice is relied on by the High Court for declaring an election as void the High Court while making its order under S.98 shall make a further order under S.99 of the Act. A careful reading of S.79 to 116 of the Act would show that the High Court is the exclusive authority under law to decide election petitions and that the proof of the commission of any corrupt practice disputed in a particular petition is a ground only for declaring the election void In other words, the order the High Court may pass in that case has nothing to do with disqualification on the ground of corrupt practice. This conclusion is amply supported by S.8A of the Act, which before the commencement of Act 40 of 1975, read as follows: