STATE ELECTION COMMISSION Vs. PUNAM KUMARI

JUDGEMENT

(1.) IN a writ petition the respondent-petitioner complained before this court that the seat of Makhiya of a particular Panchayat was reserved for extremely backward class community, and the same is being occupied by a person, who does not belong to the said community, and the Election Commission failed to even address itself to a complaint made by the petitioner to the effect. By the judgment" and Order under appeal the writ petition was allowed with a direction upon the Commission to decide the merits of the said complaint. While the appeal was preferred by the Commission against the judgment and order under appeal, the Commission applied its mind to the complaint lodged by the petitioner-respondent and concluded, ultimately, that the person elected does not belong to the community for which the post in question was reserved. On such conclusion, Commission declared the election invalid. Subsequent thereto, the person, whose election was, thus, declared invalid, preferred a separate appeal against the judgment and order under appeal. These two appeals were heard together and are being disposed of by this common judgment and order.

(2.) THE one and the only question raised in the present appeals is whether the Commission had competence to decide the complaint of the petitioner-respondent and if not what is the effect of the decision rendered by the Commission in compliance with the directions issued by the judgment and order under appeal.

(3.) ARTICLE 191 of the Constitution of India provides what are the disqualifications for membership of Legislative Assembly or legislative Council of a State. The said Article, amongst others, provides that one of those disqualifications would be as may be prescribed by and under any law made by the Parliament. Therefore, in addition to specific disqualifications mentioned in the said Article, any other disqualification prescribed by any law made by the Parliament would also be a disqualification for being a member of Legislative Assembly or Legislative Council of a State. At the same time, article 193 provides, amongst others, that if a disqualified person, knowing that he is disqualified, sits or votes as a member of legislative Assembly or Legislative Council of a State, he shall be liable to be penalized to the extent as mentioned in the said Article. However, neither the said Articles, nor any other provision contained in the Constitution prescribed who shall adjudicate such disqualification, if any. At the same time, however, Article 329 (b) makes it abundantly clear that notwithstanding anything in the Constitution no election to either house of Parliament or either House of the legislature of the State shall be called in question except by election petition presented to such authority and in such manner as has been provided for by and under any law made by the Legislature. There is no dispute that by law made by the Parliament many other disqualifications have been added to the disqualifications mentioned in article 191 of the-Constitution. While exercising power of selecting an Authority and providing manner for resolving election disputes, there is no dispute that the High court has been constituted as the election tribunal, which, at the same time, has been authorized to go into the question of disqualifications. Despite that matters pertaining to disqualification have been frequenting Courts under Article 226 and not through the Election Petitions. After consideration of many earlier judgments of the hon'ble Supreme Court, the Hon'ble Supreme Court in the case of K. Venkatachalam v. A. Swamickan; (1999) 4 SCC 526 : AIR 1999 SC 1723, at paragraph 27 of the reported judgment, upheld the jurisdiction under Article 226 of the Constitution pertaining to disqualification of a member of a legislative Assembly while observing as follows :