A disqualified legislator sought to prohibit a constituency bye-election pending a Presidential decision. The court held that the Lieutenant Governor had merely forwarded the representation, not made a reference for decision. It dismissed the petition without examining the merits of disqualification.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.8110 of 2019
and
W.M.P.No.8700 of 2019
Mr.A.Ashok Anand .. Petitioner Vs. 1.The Election Commission of India, represented by its Chief Election Commissioner, having his office at Nirvachan Sadan, Ashoka Road, New Delhi-110001.
2.The Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi-110001.
3.The Secretary, Lt. Governor's Secretariat, Government of Puducherry, Raj Nivas, Puducherry - 605001.
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, issuance of a Writ of Prohibition, prohibiting the respondents No.1 or any one acting on his behalf from in any manner Notifying Bye-Election to No.9,
Thattanchavadi Assembly Constituency in the Union Territory of Puducherry or holding By-Election to the said constituency, in pursuant to the Notification issued by the Speaker of the Puducherry Assembly and the sixth respondent by publication in The Gazettee of Puducherry, Part-1 Extraordinary NO.156 dated 8th November 2018, holding that the Petitioner is disqualified from being a member of the Puducherry Legislative Assembly from the date of conviction i.e.30th October 2018, passed by the learned Special Judge for Prevention of Corruption Act, 1988, (Principal District and Sessions Judge) Puducherry made in Special C.C.No.1 of 2008, till the validity of the question of the petitioner's disqualification is decided by Her Excellency, the Adminstrator/the Lt.Governor for the Union Territory or His Excellency The President of India in terms of Article 192 of the Constitution of India and Section 14(3) and (4) of the Government of Union Territories Act, 1963, in pursuant to the letter from Her Excellency, the Administrator/the Lt. Governor from the Union Territory to His Excellency The President of India in proceeding No.LGS/2019/5803/MLA-Disq. Dated 15th March 2019.
For Petitioner : Mr.J.Raja Kalifulla Senior Counsel for Mr.M.S.Govindarajan For R1, R2 and R5 : Mr.Niranjan Rajagopal For R3 : No appearance For R4 : Mr.A.V.Ramalingam Additional Govt. Pleader (Pondicherry) For R6 : Mr.ARL.Sundaresan, Senior Counsel, for Mr.D.RAvichandran Additional Govt. Pleader (Pondicherry)
ORDER (Order of this Court was made by S.MANIKUMAR, J.)
Petitioner who has been disqualified from being a Member of the Puducherry Legislative Assembly from the date of conviction dated 30.10.2018, passed by the learned Special Judge for Prevention of Corruption Act, 1988 (Principal District and Sessions Judge), Puducherry, made in Special C.C.No.1 of 2008 under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 read with Section 109 of Indian Penal Code under Section 8(1) of the Representation of People's Act, 1951, vide notification No.5154/2018/LA(Legn), dated 08.11.2018, issued by the Secretary to the Government, Legislative Assembly, Puducherry, has filed W.P.No.452 of 2019, on the following
grounds:-
“(a) The impugned Order passed by the Government of Puducherry, Legislative Assembly Secretariat, and published by the 5th and 6th Respondents in the Gazette of Puducherry, Part-1 Extraordinary No.156 dated 8th November 2018 disqualifying me from being a member of the Puducherry Legislative Assembly from the date of conviction i.e. 30th October 2018 under section 8 of the Representation of People Act 1951 Act ( Act 43 of 1951) read with sub-clause (e) of clause (1) of Article 102 of the Constitution of India read with section 14(1) of the Government of Union Territories Act, 1963, is in Gross violation of the Principles of Natural Justice and not justifiable both in law and on facts. It is ab-initio void and illegal.
(b) The Respondents ought to have noted that neither Article 102 of the Constitution of India nor the provisions of The Prevention of Corruptions Act 1951 or Government of Union Territories Act 1963 has any application. The respondents have exceeded their jurisdiction in passing the impugned order for extraneous reasons and narrow political consideration, as the Petitioner is from the Opposition party.
(c) The Impugned order passed by the 5th and 6th. Respondent is wholly without Jurisdiction and not maintainable both in law and on facts.
(d) The respondents 5 and 6 have passed the Impugned order on 08.11.2018, within 8 days of the Judgment passed in the Criminal case convicting the Petitioner for offence under section 109 r/w section 13(1)(e) r/w 13(2) of P.C. Act and sentenced to one year R.I. and to pay a fine of Rs.1,00,000/- and in default to undergo R.I for three months. This order is passed without any notice to me or considering the Judgment passed in the Criminal case in Spl. C.C. No.1 of 2008 in proper perspective or the provisions of The Prevention (Corruptions Act 1951 or Government of Union Territories Act 1963.
(e) The respondents ought-to have referred the matter to His Excellency the President of India under section 14(3) of The Government of Union Territories Act 1963, before passing the impugned order.
(f) The respondents have passed the impugned order within 8 days without considering the fact that I have filed Appeal in C.A. No.724 of 2018, before this Hon'ble High Court and the Hon'ble High Court was pleased to admit the Appeal and after notice to the respondent in the Appeal was pleased to pass an order suspending the sentence imposed as against me till the disposal of the Appeal by order dated 26.11.2018 in
Crl.M.P. No.15301 of 2018. I have also filed Crl.M.P. No.15303 of 2018 and Crl.M.P. No.15762 of 2018 to stay the order of attachment and to stay the conviction passed in C.A. No.724 of 2018 respectively. Notice is ordered in these petitions and the same is pending adjudication.
(g) The respondents ought to have noted that the charge framed against the Petitioner, 2nd. Accused in Spl.C.C. No. 1/2008 is for offence under section 109 r/w section 13(l)(e) r/w 13(2) of P.C. Act. The finding against the Petitioner is that he had abetted his father, the First Accused in accumulating wealth disproportionate to his known source of Income.
(h) The Respondents failed to consider the circumstances as referred to by the learned Judge, which amounts to abetment in para 155 of the Judgment, to hold the Petitioner guilty. None of the circumstances can be construed as "Abetment "as set out under section 107 I.P.C.
(i) The respondents ought to have noted that my conviction for one year R.I., is under section 109 I.P.C r/w section 13(l)(e) r/w section
13(2) of the Prevention of corruption Act. The allegation against me is for abetment under section 109 of I.P.C., which is a separate and distinct offence and not under the provisions of the Prevention of Corruption Act. The order passed by respondents 5 and 6 disqualifying me from being a member of the Puducherry Legislative Assembly from the date of conviction I.e. 30th. October 2018, is ex-facie illegal and without jurisdiction.
(j) The respondents ought to have noted that there is no express
provision providing for punishment for abetment of offence under section 13 of P.C. Act. In such circumstances under the provisions of Section 8(3) of The Representation of Peoples Act 1951, the elected member can be disqualified only if his conviction is for two years and above. The impugned order passed against me is ab-initio void and illegal.
(k) The respondents ought to have noted that the learned Special
Judge for Prevention of Corruption Act 1988 (Principal Districts & Sessions Judge) Puducherry has framed the charge against me, as referred to in para 2 at page 2 of the Judgment for offence under section 109 I.P.C. r/w Section 13 (2) and 13(l)(e) of the P.C. Act 1988. The finding against me in para 155 is also on abetment as set out in concluding Para 165 and 167 at page 86 and 87 of the Judgment. The learned Judge has observed
as follows:-
Para 165 ....." There is no specific punishment for abetment under the Prevention of Corruption Act, thereby as per dictum laid down by the Hon'ble Supreme Court in Nallammal Case; conviction can be made under section 109 I.P.C. In this case A-2 (Petitioner) has abetted A-l for the commission of the offence u/s 13 (l)(e) of P.C. Act 1988 thereby we have to punish the accused as per section 109 I.P.C. Since there is no specific provision of punishment we have to invoke for punishment the provisions of section 13(1)(e) of P.C. Act 1988.
Para 167..... The 2nd Accused ( Petitioner ) is sentenced to undergo R.I. for one year u/s 13(1)(e) r/w 13(2) r/w 109 of I.P.C. and to pay a fine of Rs.1,00,000/-( Rupees One Lakh only ) an default to undergo R.I. for three months ".
Having observed as above the learned erred in convicting and sentencing me erroneously u/s 13(1)(e) r/w 13(2) r/w 109 of I.P.C. The conviction even, if the allegations are true, can be only under section 109 I.P.C. r/w Section 13 (2) and 13(l)(e) of the P.C. Act 1988. This erroneous approach has been misconstrued by the respondents 5 and 6 in passing the impugned order and disqualifying me from continuing as Member of Puducherry Legislative Assembly.
(l) Tne respondents 5 and 6 have passed the impugned order under section 8 of the Representation of People Act 1951 ( Act 43 of 1951) read with subclause (e) of clause (1) of Article 102 of the Constitution of India read with section 14(1) of the Government of Union Territories Act, 1963.
Section 8(1) of the Prevention of Corruption Act has no Application as my conviction is only under section 109 of I.P.C. r/w section 13(1)(e) r/w 13(2) of P.C. Act. Since my conviction and sentence is only for One year, section 8(3) of the Act also cannot be invoked. Without considering the said legal position the impugned order has been passed disqualifying me from continuing as Member of the Legislative Assembly.
(m) The respondents ought to have noted that under Section 14(3) me Government of Union Territories Act, 1963, If any question arises as to whether a member of the Legislative Assembly of the Union
Territory has become disqualified for being such a member, the question shall be referred for the decision of the President and his decision shall be final.
Without following the Mandatory provision of this
Act, the respondents 5 and 6 have passed this order, due to extraneous and narrow political consideration.
(n) The respondents ought to have noted that In respect of Union Territories the Administrator is the Lt. Governor, and the impugned order passed by respondents 5 and 6 is wholly without jurisdiction and beyond the powers vested in them.
(o) The respondents ought to have noted that the during the check period from 1st January 1997 to 7 th January 2006, the Petitioner was neither in any Public service nor was he a member of the Legislative Assembly.”
"Government of Puducherry LEGISLATIVE ASSEMBLY SECRETARIAT No.5154/2018/LA(Legn.). Puducherry, the 8th November 2018. NOTIFICATION VACANCY OF SEAT IN THE UNION TERRITORY OF PUDUCHERRY DUE TO DISQUALIFICATION UNDER SUB-CLAUSE (e) OF CLAUSE (1) OF ARTICLE 102 OF CONSTITUTION OF INDIA READ WITH SECTION 14(1) OF THE GOVERNMENT OF UNION TERRITORIES ACT, 1963
Whereas, Thiru Ashok Anand, Elected Member of the Puducherry Legislative Assembly from 9-Thattanchavady Assembly Constituency has been convicted under clause (e) of sub-section 9(1) of Section 13 read with subsection (2) of Section 13 of the Prevention of Corruption Act, 1988 read with section 109 of Indian Penal Code by the Hon'ble Court of the Special Judge (Principal Sessions Judge), Puducherry in Spl.C.C.No.1/2008 on the 30th October, 2018 followed by an award of sentence of one year rigorous imprisonment alongwith a fine of Rupees One lakh (in default to undergo further rigorous imprisonment for three months) and confiscation of the property to the State for the disproportionate wealth value to the tune of Rs.1,74,36,839.
1951 (Act 43 of 1951) readwith sub-clause (e) of clause (1) of Article 102 of the Constitution of India readwith section 14 (1) of the Government of Union Territories Act, 1963 provide for disqualification of a person convicted for offences referred to in the said sections;
Puducherry, VE.VAITHILINGAM, 8th November, 2018. Speaker
A.VINCENT RAYAR, Secretary, Legislative Assembly,"
Act, 1951 (Act 43 of 1951) read with sub-clause (e) of clause (1) of Article 102 of the Constitution of India read with section 14(1) of the Government of Union Territories Act, 1963 disqualifying the petitioner from being a member of the Puducherry Legislative Assembly from the date of conviction i.e.30th October 2018, in Spl. C.C.No.1/2008 on the file of the learned Special Judge for Prevention of Corruption Act, 1988 (Principal District and Session Judge), Puducherry till the disposal of the writ petition.
"In the above circumstance, I submit to state that, if any action is proposed to be taken for conducting By-poll Election at 09-Thattanchavady Legislative Constituency, Union Territory of Puducherry in 2019 subsequent to the Gazette Notification issued by the Secretary, Legislative Assembly of Puducherry, Government of Puducherry and any request made from the Government of PUducherry may please be reconsidered and requested to take any decision after the pronouncement of order in SLP (Crl.) No.798-799 of 2019 by the Supreme Court of India as well as after hearing my representation and render justice since if any damages done it cannot be undone."
"In view of above-stated submissions, I humbly pray that in light of the Final Order passed by the Hon'ble Supreme Court of India in SLP (Crl.) No.798799 of 2019, the Commission may be pleased to reconsider legal submissions while taking a decision on conducting By-poll Election at 09-Thattanchavady Legislative Constituency, Union Territory of Puducherry in 2019 subsequent to Impugned Notification or in the alternative, keep such decision in abeyance till the final disposal of the writ petition and appeal pending adjudication before the Hon'ble Madras High Court and render justice as damage done cannot be undone in present facts and circumstances of the matter."
Dr. Kiran Bedi Raj Nivas Lieutenant Governor Pondicherry-605 001 -------------------------------------------------------------------------------------No.LGS/2009/5803/MLA- DISQ. March 15, 2019 Respected President, I am to forward herewith the representation of Shri Ashok Anand, farmer MLA, received on 13th March 2019, raising question on his disqualification made pursuant to his conviction for offence u/s. 13(1 )(e) r/2 13(2) of PC Act r/w 109 of IPC under Section 8(1) of Representation of People’s Act, 1951.
Hon’ble Speaker, Puducherry Legislative Assembly passed the orders of his disqualification w.e.f the date of his conviction i.e., 30th Oct 2018, declaring No.9 Thattanchavady Assembly constituency deemed to be vacant from the said date. The disqualification order was notified in Gazette Extraordinary No. 156, dated 8th Nov 2018.
Shri Ashok Anand, has contended that the sentence of punishment for abetment of offence falls under the domain of IPC and not under Prevention of Corruption Act, 1988. Citing Hon’ble Supreme Court judgment in Thomas vs. Union of India in WP No. 490 of 2005 that filling of the seat which falls vacant may await the decision of the President or the Governor under Art 103 and 192 respectively of the constitution, he has made a request to defer the by-elections announced by Election Commission of India to No.9 Thattanchavady Assembly Constituency from where he was elected in the last two elections.
I am to state that as per the schedule of polls, the statutory notification for the by-election will be issued on 19th March 2018 for the polls to be held on
18th April 2018 along with Parliament Elections to Puducherry Parliamentary Constituency.
In as much as, question if any arises, as to whether a Member of the Legislative of the Union Territory has become disqualified, has to be referred for the decision of the President under Section 14(3) of Government of Union Territories Act, 1963, the representation is forwarded, as such, with enclosures.
With kind regards.
Yours sincerely Sd/DR. KIRAN BEDI"
End: As above
To
Shri Ram Nath Kovind
Hon’ble President of India,
Rashtrapathi Bhavan,
NEW DELHI 110 001
Copy to
Shri Rajiv Gauba
Union Home Secretary,
Ministry of Home Affairs,
North Block,
NEW DELHI 110 001
DR.KIRAN BEDI
LT. GOVERNOR"
8. For brevity, reply letter dated 16.03.2019, is
reproduced:-
GOVERNMENT OF PUDUCHERRY
LT. GOVERNOR’S SECRETARIAT
Raj Nivas
Pondicherry 605 001
Phone : 0413 2332301
Fax : 0413 2334025
------------------------------------------------------
--------------------------------
No. LGS/RTI/( 20-19/2019 16.03.2019
To
Thiru. Ashok Anand,
No.6, Third Main Road,
Awai Nagar,Lawspet,
Puducherry 605 008.
Sir,
SUB: LGS -RTI Application from Thiru. Ashok Anand,
seeking Information relating to action taken report on the representation
REF: Your RTI application dated 15.03.2019 .
Please refer to your RTI application seeking Information relating to action taken report on the representation dated 15.03.2019.
Yours faithfully.
PRIVATE SECRETARY TO LT. GOVERNOR
-CUM-PUBLIC INFORMATION
OFFICER"
sought for, by way of an interim order in W.P.No.452 of 2019 before another Hon'ble Division Bench, has now become the main prayer in this writ petition.
"Note on Submissions of Mr. Niranian Raiagopalan
A. Challenge to orders of disqualification and the role of Election Commission of India - as laid down in Election Commission of India vs Bajrang Bahadur Singh in (2015) 12 SCC 570.
Court has also discussed the nature and occurrence of disqualifications as contemplated under various provisions. The concluding portion is extracted below:
“65. The question, therefore, is as to how to reconcile the two apparently conflicting constitutional obligations, (i) of the High Court to adjudicate the dispute regarding the legality of the Governor's decision under Article 192, and (ii) the Commission's obligation to hold the election within a period of six months from the date of occurrence of the vacancy.
B. Whether conviction under section 109 of the Indian Penal Code, 1860 read with Sections 13(2) and 13(l)(e) of the Prevention of Corruption Act, 1988 is attracted under Section 8(l)(m) of the Representation of Peoples Act, 1951?
Section 8, where disqualification occurs only on being sentenced for a particular period or more, in case of subsection (1), mere conviction is sufficient. This also indicates that the legislature views the offences provided under Section 8(1) as more serious in context of elections.
Section 12 of PCA: (pre amendment)
Whoever abets any offence punishable under Section 7 or Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 12 of PCA: (post amendment)
Whoever abets any offence punishable under this Act, whether or not that offence is committted in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than three years, but which may extend to seven years and shall also be liable to fine.
C.Whether question pertaining to disqualification under Section 8(1)(m) is necessitated to be referred to the President of India under Section 14(3) of Government of Union Territories Act, 1963 or under Article 102 or under Article 191 of Constitution?
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the
Government of any State by reason only that he is a Minister either for the Union or for such State. (2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.
"I am to forward herewith the representation of Shri Ashok Anand, farmer MLA, received on 13th March 2019, raising question on his disqualification made pursuant to his conviction for offence u/s. 13(1 )(e) r/2 13(2) of PC Act r/w 109 of IPC under Section 8(1) of Representation of People’s Act, 1951."
Sd/-
Assistant Registrar
//True Copy//
Sub Assistant Registrar
To
1.Chief Election Commissioner, Election Commission of India, having his office at Nirvachan Sadan, Ashoka Road, New Delhi-110001.
2.The Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi-110001.
3.The Secretary,
Lt. Governor's Secretariat, Government of Puducherry, Raj Nivas, Puducherry - 605001.
4.The Government of Puducherry Represented by its Chief Secretary, Puducherry-605001.
5.The Chief Election Officer, Union Territory of Puducherry, Having his office at Villanur Road, Reddiarpalayam, Puducherry-605010.
6.The Secretary, Legislative Assembly, Union Territory of Puducherry, Puducherry.
+1cc to Mr.M.S.Govindarajan, Advocate sr.no.25590
W.P.No.8110 of 2019 and W.M.P.No.8700 of 2019
nr 19/03/2019
2 issues framed by the court
Did forwarding the disqualified legislator's representation constitute a reference to the President under Section 14(3) of the Government of Union Territories Act, 1963?
Should the court prohibit the proposed bye-election pending a Presidential decision on the forwarded representation?
Colour shows how this judgement treated each authority
Lily Thomas vs. Union of India and othersReferred¶93
Lily Thomas vs. Union of India and others, reported in (2013) 7 SCC 653 · Who else cites this
Election Commission of India vs Bajrang Bahadur SinghReferred¶102
Election Commission of India vs Bajrang Bahadur Singh in (2015) 12 SCC 570 · Who else cites this
(1999) 6 SCC 559 · Who else cites this
1 provisions across 1 enactments
A.Ashok Anand
The Election Commission of India
The Secretary, Ministry of Home Affairs, Government of India
The Secretary, Lt. Governor's Secretariat, Government of Puducherry
The Government of Puducherry
The Chief Election Officer, Union Territory of Puducherry
S.MANIKUMAR
SUBRAMONIUM PRASAD
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
