NAND LAL SHARMA Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) The case of the petitioner is that he submitted an application on 1st March, 1982, before Hon'ble the Governor of Rajasthan against 40 members of the Legislative Assembly of Rajasthan that they were disqualified, for membership as they were holding office of profit. The Governor referred the matter for opinion of the election commission as required under Article 192 (2) of the Constitution. According to the petitioner, the Election Commission made an open inquiry in the capacity of a Civil Court under Section 146 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'). The grievance of the petitioner now is that the Election Commission should have given finding on all the issues raised by the petitioner and the final decision taken by the Election Commission should have been pronounced in the open Court and the order pronounced by the Election Commission cannot be kept as a secret document. The petitioner appeared in person and contended before this Court that the Governor after obtaining the opinion of the Election Commission and before acting according to such opinion should have given an opportunity of hearing to the petitioner. It is also coo-tended that the Governor should be allowed to be impleaded as a party in the present writ petition. Main emphasis has been laid on Section 146 of the Act, according to which the Election Commission is deemed to be a Civil Court while making an inquiry under the aforesaid provision in order to tender its opinion to the Governor under Article 192 of the Constitution. It is contended that when the Election Commission makes an inquiry under the aforesaid provision as a Civil Court, it was incumbent upon it to decide all the issues and to pronounce the order in the open Court.

(2.) On the other hand, it was submitted by the learned, Advocate General that the opinion dated 8th February, 1983, given by the Election Commission has been duly published in Rajasthan Gazette, Extraordinary, dated March 17, 1983, and the order passed by the Governor on March 5, 1983, has also been published in the same gazette. It is contended that the Governor of Rajasthan had sought the opinion of the Election Commission whether 40 sitting members of Legislative Assembly of Rajasthan had become subject to a disqualification for continuing as such members on the ground that each of them was holding an office of profit as alleged in the petition presented to him by Shri Nand Lal Sharma of Bassi, Jaipur District, petitioner. The Election Commission had asked the contending parties to file written statements, rejoinders, supporting affidavits and documents. The petitioner appeared personally and the opposite parties through Shri N. L. Jain Advocate General, assisted by S/Shri M. I. Khan and Kamlakar Sharma, Advocates and arguments were heard on 27th December, 1982. Thereafter, the Election Commission came to the conclusion that following three main issues emerged for determination:

(3.) The Election Commission then has given detailed order for giving its opin- ion on the abovementioned issues. In the order it has been finally observed as under: