R SIVASANKARA MEHTA Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) THE Appellant in this writ appeal Sri R. Sivasankara Mehta was a Member of the madras Legislative Council having been elected in April 1962 from the Madras district Local Authorities Constituency. His term would continue till April 1968. In the meanwhile on a petition filed by a creditor he was adjudication as insolvent on 26-4-1966. He filed an appeal on 29-4-1966 against the adjudication and this appeal was numbered as O. S. A. 43 of 1966. Pending the disposal of the appeal he applied for interim relief from the appellate court and three orders in succession were passed on 29-4-1966, 8-8-1966 and finally on 3-2-1967. It is not necessary to set out at length the gist of these orders. We have been taken through these interim orders passed by the Bench of this court dealing with the O. S. Appeal of which one of us was a member. The main conclusion that emerges from these order is that while certain reliefs were orders is that while certain reliefs were given to Sri Mehta, the adjudication as such was not suspended or stayed pending disposal of the O. S. Appeal.

(2.) ART. 191 (1) (c) of the Constitution says that a person shall be disqualified for being a member of the Legislative Council of a State, if he is an undischarged insolvent. Art 192 (1) of the Constitution states that--

(3.) THE opinion of the Election Commissioner on the reference thus made to him by the Government is embodied in the Madras Government Gazette notification dated 14-12-1966, publishing the decision of the Governor under Art. 192 (1) of the constitution. The Election Commission gave an opportunity to Sri Mehta to present his view of the matter. In fact the appellant himself in para 6 of his affidavit in C. M. P. 11701 of 1966 has categorically admitted that, "the Election Commission, india, has issued a Memorandum dated 12-10-1966 to me giving me an opportunity to present my views on the question raised either in writing or in person or by an authorised counsel and also to put in a written representation so as to reach the Commission on or before 1st November 1966 and also inter alia advising me that if I wanted a personal hearing I will be heard in the Commission's office at New Delhi on 2nd November 1966". After considering his objections, the Election Commission tendered the opinion that Sri Sivasankara Mehta had become subject to the disqualification in Art 191 (1) (c) of the Constitution on and from 24-4-1966. Thereafter his seat was declared to be vacant as provided in Art 190 (3) of the Constitution and the Election commissioner took up proceedings for holding a fresh election and called for nomination papers for filling up the vacancy. The nomination papers have been also filed, and the election is due to be held on 22-4-1967.