G VASANTHA PAI Vs. C K RAMASWAMY

JUDGEMENT

(1.) THE petitioner had been a Member of the Tamil Nadu Legislative Council from june 1969 to April 1976. In the biennial election held on 9-4-1978, he was by a notification dated 11-4-1078, made by the Returning Officer, declared to have been duly elected to fill one of the seats from Madras District Graduates constituency for the Legislative Council of Tamil Nadu. In pursuance of Section 74 of the Representation of the People Act, 1951, the election of the petitioner was notified in the Tamil Nadu Government Gazette Extraordinary dated 21-41978. On such notification under Section 74, the petitioner had become a member of the Legislative Council and his term of office as such Member began on and from 21-4-1978, as contained in the provision of Section 157 of the representation of the People Act. Though he had thus become a Member by virtue of the declaration and notification of the result under Section 74, Article 188 of the Constitution required that he shall before taking his seat in the council make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. Certain penalties and consequences are provided in Article 193 if a Member takes a seat in the Council or votes before he has complied with the requirements of Article 188. The council's rules require the member to sign the roll of members kept by the council's Secretary before he takes his seat and enters on his duties as a legislator in the Council.

(2.) ON the 12th April 1978, after he was declared elected, the petitioner contacted the first respondent who is the Secretary of the Legislative Council and informed him that he would like to take his oath. Later, the first respondent informed the petitioner that the Notification as to the report of the result of the election was expected to be made in the Official Gazette and that he could take the oath after such notification made under Section 74 of the Representation of the People Act. Though there are certain allegations made in the affidavit filed in support of the writ petition about the telephonic conversations between the petitioner and the first respondent during the period from 12-4-1978 to 21-41978, it is not necessary for me to take note of those statements as they are not relevant except to note two factors. One is that the petitioner was insisting on his being sworn to and his right to be sworn arose only on 21-4-1978, when he had become a member by reason ofthe Notification under Section 74. The other factor is that by a D. O. letter dated17-4-1978, the first respondent informed the petitioner that before the petitioner could take his seat in the legislative Council, he will have to make and subscribe an oath or affirmation as required under Article 188 of the Constitution and, that "the Tamil Nadu legislative Council will meet at 4 p. m. on Monday the 24th April 1978 for the administration of oath or affirmation to the newly elected or nominated members of the Legislative Council. " In this letter, the first respondent further requested the petitioner to be present in the Legislative Council Chamber before 4 p. m. on Monday the 24th April 1978, with the certificate of election issued by the Returning Officer, as it had to be deposited with the Secretary, Legislative council, before taking the oath or affirmation.

(3.) BY one notification dated 20-4-1978, published in the Gazette Extraordinary, on the same date, the Governor of Tamil Nadu notified that as the Office of the chairman, Tamil Nadu Legislative Council was vacant, in exercise of the powers conferred by Clause (1) of Article 184 of the Constitution, he had appointed the second respondent who is a Member of the Legislative Council to perform the duties of the Chairman from the forenoon of 21st April 1978, until a Chairman is chosen by the Council under Article 182 of the Constitution. By another notification of the same date published in the Gazette, in exercise of the powers conferred by Article 188 of the Constitution, the Governor of Tamil Nadu appointed the second respondent "as the person before whom the oath or affirmation may be made by the members of the Legislative Council under the said Article. "