A BHEEMANNA Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) (At the Admission stage) The petitioner, who is an Advocate in Jagitial, Karimnagar District, has filed this Writ petition seeking issuance of a writ directing the first respondent, the Election Commission of India "to recall the permission granted to the fourth respondent for withdrawing the seat of Member Legislative Assembly representing Panyam Constituency in Kumool District and consequently withdraw the Notification of vacancy of the Panyam Constituency and directing the first respondent restraining him from issuing Notification calling for nominations and to hold elections in Panyam Constituency."

(2.) Petitioner submits that the resignation of the fourth respondent, who was Member of the State Legislative Assembly representing Panyam Constituency, was motivated, improper, illegal and therefore its acceptance by the second respondent, the Speaker of the Legislative Assembly is tainted by all the illegalities mentioned above. He submits that the fourth respondent, who was elected for a period of five years, was normally bound to serve for the entire term and was not entitled to resign from the Assembly at any intermediate stage. He submits further that in so far as resignation was manifestly for purpose of enabling the third respondent, Chief Minister, to get elected from Panyam Constituency to the Legislative Assembly and continue as Chief Minister of the State it is totally improper and unconstitutional. He submits further that the Election Commission which had initially refused to conduct the bye-elections in Panyam Constituency before 9-4-1993, the date by which the third respondent should be elected to the State Legislature, over-turned its decision succumbing to extraneous and political pressure exerted by the third respondent. He submits that the impugned decision to conduct the election contrary to his earlier decision, was taken only for the purpose of obliging the third respondent, and that vitiates the order of the Election Commission. He submits that the impugned decision is unreasonable and arbitrary and vitiates by the undue anxiety of the 1st respondent to facilitate the election of the 3rd respondent. It is substantially on these grounds that the petitioner seeks the reliefs which we have mentioned above.

(3.) Counsel for the Petitioner submits that the Proviso to Article 190(3) of the Constitution of India was engrafted by Section 3 of the Constitution 33rd Amendment Act, 1974 for purpose of casting an obligation in the Speaker of the Legislature or the Chairman of the Council, to ascertain whether the resignation, if any, submitted by a Member is not voluntary or genuine and in case if he finds that it is not voluntary or not genuine, he is bound to reject the same. Counsel submits that in the present case, the Speaker did not discharge the obligation cast on him by Proviso to Article 190(3) of the Constitution of India, and in that sense, his action is liable to be called in question for non-performance of the constitutional obligations. Naturally, if the acceptance of the resignation by the Speaker is found to be illegal or unconstitutional, the Notification of vacancy to which the third respondent may be elected from that constituency will also become invalid.