LexK. VENKATACHALAM versus A. SWAMICKAN AND ANR.
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- K. VENKATACHALAM A v. A. SWAMICKAN AND ANR. APRIL 26, 1999 [D.P. WADHWA AND N. SANTOSH HEGDE, JJ.] B Constitution of India, 1950 : Articles 226, 329(b) 173(c), 190(3), 19!, 192(1) and 193-Election to Legislative Assembly-Candidate not an elector in the electoral roll of the C constituency-Impersonated himself for another person of the same name- Elected to Legislative Assembly-Writ pe~ition by rival candidate challenging the election-Dismissed by Single Judge holding that petition not maintainable in view of bar contained under Article 329(b)-Division Bench allowing the appeal and declaring the appellant disqualified as member of Legislative Assembly-On appeal, Held, High Court was justified in exercising D its jurisdiction under Article 226 of the Constitution-Disqualification incurred prior to election and therefore bar under Article 329(b) not attracted-Penalty imposed on appellant for sitting and voting as member of Legislative Assembly-Representation of People Act, 1951-Section 81 and JOO. E Article 226-Jurisdiction of High Court-Scope and extent of In the general election to the Legislative Assembly in Tamil Nadu both appellant and respondent contested. Appellant was declared elected. After the elections, while scrutinising the entire electoral roll, respondent found that F . appellant was not an elector in the electoral roll of the said constituency and has impersonated him for another person of the same name in the electoral roll. Thus appellant lacked the basic qualification under clause(c) of Article 173 of the Constitution read with sec. 5 of the Representation of the People Act, 1951 to sit as a member of the Legislative Assembly. Respondent filed a petition under Article 226 of the Constitution after lapse of one year for G a declaration that appellant was not qualified to be a member of Legislative Assembly. A Single Judge of the High Court dismissed the petition on the ground that it was not maintainable under Article 226 of the Constitution in view of bar contained in Article 329(b) of the Constitution. However, on appeal, the Division Bench of the High Court held that the appellant was not H 857 \ 858 SUPREME COURT REPORTS (1999] 2 S.C.R. A \iualified to sit as a member of Legislative Assembly as he did not possess ~e basic qualification. Aggrieved, the appellant has preferred the present L appeal The contention of the appellant was that in view of the provisions of . Article 329(b) of the Constitution, High Court could not exercise its B jurisdiction under Article 226 of the Constitution and that a writ of quo warranto could not be issued after lapse of one year at the instance of the candidate who was defeated in the elections. --- The contention of the respondent was that as the appellant lacked basic --- and fundamental qualification under the Constitution to be elected to the · C Legislative Assembly it could not be said that a petition under Article 226 was not maintainable after the declaration of the election. Dismissing the appeal, this Court D HELD : I. High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on. him from functioning as a member of the Legislative Assembly. (879-B) E 2. Appellant not being an elector in the electoral roll of the Assembly constituency lacked the basic qualification under clause (c) of Article 173 of the Constitution read with section 5 of the Act which mandated that a · person to be elected from an Assembly constituency has to be elector of that constituency. He, therefore, could not be elected as a. member of the Legislative Assembly. Appellant in his nomination form impersonated a person taking F advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud to the Constitution. The election of the appellant could have been challenged f?y holding an election petition G under section 81 of the Act which was not done. Election petition under section 81 had to be filed within forty days from the date of election of the / returned candidate. There is no provision for limitation under the Act. Ther
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