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PETITIONER: FLECTION COMMISSION, INDIA

       Vs.

RESPONDENT: SAKA VENKATA SUBBA RAOUNION OF INDIA-Intervener.

DATE OF JUDGMENT: 27/02/1953

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR  210            1953 SCR 1144  CITATOR INFO :  RF         1954 SC 207  (3)  R          1954 SC 440  (5)  R          1956 SC 246  (21,23)  F          1961 SC 532  (3)  R          1962 SC1513  (3,4)  R          1963 SC1124  (1,2,5)  R          1965 SC1892  (7)  R          1967 SC 112  (10)  D          1967 SC1244  (12)  R          1976 SC2283  (43)  RF         1986 SC1272  (83)  R          1992 SC1277  (19,61)

ACT: Constitution of India, 1950, arts. 132, 192, 226-High  Court -Power  to issue writs-  Limitations-Power to issue writ  on persons  residing outside territorial  jurisdiction-Election to  Madras  Assembly-Reference to Election  Commission,  New Delhi-Jurisdiction  of  Madras  High  Court  to  issue  writ against  Commission-Disqalificatioin before  election-Effect of -Appeals from Single Judge.

HEADNOTE:  The  respondent,  who had been convicted  and  sentenced  to  rigorous imprisonment for seven years, was elected a  member  of   Madras  Legislative Assembly.  At the instance  of  the  Speaker the Assembly, the Governor of Madras referred to the  Election  Commission,  which  had  its  offices  permanently  located  at New Delhi, the question whether  the  respondent  was disqualified and could be allowed to sit and vote in the  Assembly.   The  respondent thereupon applied  to  the  High  Court of Madras under article 226 of the Constitution for  a  writ restraining the Election Commission from enquiring into  his alleged disqualification for membership of the Assembly:     Held,  that  the power of the High Court to  issue  writs  under article 226 of the Constitution is subject to the two-  fold limitation  1145  that such writs cannot run beyond the territories subject to

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its  jurisdiction  and the person or authority to  whom  the  High Court is empowered to issue such writs must be amenable  to the jurisdiction of the High Court either by residence or  location within the territories subject to its jurisdiction.  The  High Court of Madras bad therefore no  jurisdiction  to  issue  a writ under article 226 of the Constitution  against  the Election Commission.  Held further, that articles 190(3) and 192(1) are applicable  only to disqualifications to which a member becomes  subject  after heis elected as such, and neither the Governor nor the  Election  Commission  had jurisdiction to enquire  into  the  respondent’s  disqualification which arose long  before  his  election.  A  tribunal  or authority permanently located  and  normally  carrying on its activities outside the territorial limits of  a High Court cannot be regarded as functioning within  those  territorial   limits   and   therefore   amenable   to   the  jurisdiction of that High Court, merely because it exercises  jurisdiction within those territorial limits so as to affect  the rights of parties therein.  The fact that the matter referred to it for decision related  to  the  opposite  party’s  right to sit  and  vote  in  the  Legislative  Assembly  at  Madras and  the  parties  to  the  dispute  resided  in  the State of  Madras  could  not  give  jurisdiction  to  the High Court of Madras to issue  such  a  writ against the Election Commission.  An appeal lies to the Supreme Court under article 132 of the  Constitution even from a judgment, decree or final order  of  a  Single  Judge  of a High Court,  provided  the  requisite  certificate is given.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 205 of 1952.   Appeal  from  the  Judgment  and  Order  dated  the   16th September,  1952, of the High Court of Judicature at  Madras (Subba Rao J.) in Writ Petition No. 599 of 1952 filed  under the  Special Original Jurisdiction of the High  Court  under article 226 of the Constitution of India.      M.C.  Setalvad,  Attorney-General.for  India  (G.    N. Joshi, with him) for the appellant and Intervener.      Mohan Kumaramangalam, for the respondent.    1953.   February  27.   The judgment  of  the  court  was delivered by    PATANJALI SASTRI C.J.--This is an appeal from an order of a  Single  Judge of the High Court of Judicature  at  Madras issuing a writ of prohibition restraining the 1146 Election  Commission, a statutory authority  constituted  by the President and having its offices permanently located  at New Delhi, from enquiring into the alleged  disqualification of  the respondent for membership of the Madras  Legislative Assembly.   The respondent was convicted by the Sessions Judge of East Godavari  and sentenced to a term of seven  years’  rigorous imprisonment in 1942, and he was released on the occasion of the  celebration  of the ludependence Day  on  15th  August, 1947.   In  June, 1952, there was to be a by-election  to  a reserved  seat  in the Kakinada constituency of  the  Madras Legislative Assembly, and the respondent, desiring to  offer himself  as  a candidate but  finding  himself  disqualified under section 7 (b) of the Representation of the People Act, 1951,  as  five  years had not  elapsed  from  his  release, applied  to  the Commission on 2nd April, 1952,  for  exemp-

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tion so as to enable him to contest the election.  No  reply to the application having been received till 5th May,  1952, the  last day for filing nominations, the  respondent  filed his nomination on that day, but no exception was taken to it either  by the Returning Officer or any other  candidate  at the  scrutiny  of the nomination papers.  The  election  was held on 14th June, 1952, and the respondent, who secured the largest number of votes, was declared elected on 16th  June, 1952.  The result of the election was published in the  Fort St.  George Gazette (Extraordinary) on 19th June, 1952,  and the respondent took his seat as a member of the Assembly  on 27th  June,  1952.  Meanwhile, the Commission  rejected  the respondent’s application for exemption and communicated such rejection  to the respondent by its letter dated  13th  May, 1952,  which however was not received by him.  On 3rd  July, 1952,  the Speaker of the Assembly read out to the  House  a communication  received from the Commission bringing to  his notice  "for such action as he may think fit to  take",  the fact  that  the respondent’s application for  exemption  had been   rejected.    A  question  as  to   the   respondent’s disqualification  having  thus  been  raised,  the   Speaker referred the question to the Governor of 1147 Madras  who  forwarded the case to the  Commission  for  its "opinion"  as required by article 192 of  the  Constitution. The respondent having thereupon challenged the competency of the reference and the action taken thereon by the  Governor, the  Commission notified the respondent that his case  would be  heard  on  21st August, 1952.   Accordingly,  the  Chief Election  Commissioner  (who  wag the  sole  Member  of  the Commission for the time being) went down to Madras and heard the respondent’s counsel and the Advocate-General of  Madras on  21th August, 1952, when it was agreed that, in case  the petitioner’s  counsel  desired to put  forward  any  further representations  or  arguments, the same should be  sent  in writing  so  as  to reach the Commission in  Delhi  by  28th August,  1952,  and  the Commission should  take  them  into consideration before giving its opinion to the Governor. On  the same day (21st August, 1952) the respondent  applied to  the  High Court under article 226  of  the  Constitution contending  that  article 192 thereof  was  applicable  only where a member became subject to a disqualification after he was  elected  but not where, as here,  the  disqualification arose  long  before  the election, in which  case  the  only remedy was to challenge the validity of the election  before an  Election Tribunal.  He accordingly prayed for the  issue of  a  writ  of mandamus or  of  prohibition  directing  the Commission  to  forbear from proceeding with  the  reference made by the Governor of Madras who was not, however, made  a party to the proceeding.  On receipt of the rule nisi issued by   the  High  Court,  the  Commission  demurred   to   the jurisdiction  of the court to issue the writs asked for,  on the  ground  that  the  Commission  was  not  "with  in  the territory  in  relation to which the  High  Court  exercised jurisdiction".   A further objection to the  maintainability of  the application was also raised to the effect  that  the action  of  the  Governor  in seeking  the  opinion  of  the Commission  could not be challenged in view of the  immunity provided  under  article 361 (1), and  that  the  Commission itself,   which  had  not  to  "decide"  the   question   of disqualification, but had merely to give its 1148 "opinion", could not be proceeded against under article 226. On  the  merits, the Commission contended that  article  192 was,  on  its  true construction,  applicable  to  cases  of

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disqualification arising both before and after the  election and  that  both  the reference of the  question  as  to  the respondent’s disqualification to the Governor of Madras  and the latter’s reference of the same to the Commission for its opinion were competent and valid. The application was heard by Subba Rao J. who overruled  the preliminary objections and held that article 192 on its true construction   applied   only  to   cases   of   supervening disqualifications and that the Commission had, therefore, no jurisdiction to deal with the respondent’s  disqualification which  arose  long  before  the  election  took  place.   He accordingly  issued a writ prohibiting the  Commission  from proceeding  with  the  enquiry in  regard  to  the  question referred  to  it  by the Governor under  article  192.   The learned Judge, however, granted a certificate under  article 132  that the case involved substantial questions of law  as to   the  interpretation  of  the  Constitution,   and   the Commission has accordingly preferred this appeal. A   preliminary   objection   was  raised   by   Mr.   Mohan Kumaramangalam, who argued the case for the respondent  with marked ability, that the appeal brought from the judgment of a  single  Judge  was barred under  article  133(3)  of  the Constitution despite the certificate granted by the  learned Judge  overruling the same objection which was  also  raised before him.  It has been urged that, so far as civil matters are concerned, the more comprehensive provisions in  article 133(1)  (c)  for the grant of a certificate of  fitness  for appeal  to  the  Supreme Court  completely  overlap  article 132(1) which relates only to one specific ground, namely,  a substantial  question  of  law  being  involved  as  to  the interpretation  of  the Constitution, and that  the  court’s power,  therefore, to grant a certificate of fitness on  any ground including the ground referred to above, must be deem- ed  to arise under article 133(1) (c), with the result  that the exercise of such power is excluded by the opening 1149 words  of  clause (3) of that article which bars  an  appeal from  the judgment, decree or final order of one Judge of  a High  Court.   The argument was sought to be  reinforced  by reference  to clause (2) of that article and the proviso  to article  145(3) both of which contemplate appeals  involving substantial questions of law as to the interpretation of the Constitution being brought without a certificate having been obtained  under  article 132.  The argument  has  no  force. While  it  is true that constitutional  questions  could  be raised in appeals filed without a certificate under  article 132, the terms of that article make it clear that an  appeal is  allowed from "any judgment, decree or final order  of  a High  Court" provided, of course, the requisite  certificate is  given,  and  no restriction is placed on  the  right  of appeal having reference to the number of Judges by whom such judgment,  decree  or final order was passed.  Had  it  been intended  to  exclude the right of appeal in the case  of  a judgment  etc.,  by one Judge, it would have  been  easy  to include a reference to article 132 also in the opening words of  article 133(3), as in the immediately preceding  clause. If the respondent’s contention were accepted, not only would article  132 become redundant so far as it relates to  civil proceedings,  but  the  object of the  Explanation  to  that article, which was designed to supersede the decision of the Federal Court in S. Kuppuswami Rao v. The King (1) and  thus to  secure a speedy determination of  constitutional  issues going  to  the  root of a case, would be  defeated,  as  the Explanation  is not made applicable to the  same  expression "final  order" used in article 133(1).  The whole scheme  of

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the  appellate  jurisdiction of the  Supreme  Court  clearly indicates  that questions relating to the interpretation  of the Constitution are placed in a special category  irrespec- tive  of  the nature of the proceedings in  which  they  may arise,  and  a right of appeal of the  widest  amplitude  is allowed  in cases involving such questions.  We  accordingly overrule the preliminary objection and hold that the  appeal is maintainable. (1)  [1947] F.C.R. 180. 149 1150 Turning now to the question as to the powers of a High Court under  article  226,  it will be noticed  that  article  225 continues to the existing High Courts the same  jurisdiction and   powers  as  they  possessed  immediately  before   the commencement  of  the Constitution.  Though there  had  been some  conflict  of  judicial opinion on  the  point  it  was authoritatively   decided  by  the  Privy  Council  in   the Parlakimedi case(1) that the High Court of Madras--the  High Courts of Bombay and Calcutta were in the same  position-had no power to issue what were known as high prerogative  writs beyond the local limits of its original civil  jurisdiction, and  the power to issue such writs within those  limits  was derived by the court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras  and  was replaced by the High Court  established  in pursuance  of  the  Charter Act of 1861.   The  other,  High Courts in India had no power to issue such writs at all.  In that  situation,  the  makers of  the  Constitution,  having decided  to  provide for certain basic  safeguards  for  the people  in  the new set up, which  they  called  fundamental rights,  evidently  thought it necessary to provide  also  a quick  and  inexpensive remedy for the enforcement  of  such rights  and,  finding that the prerogative writs  which  the Courts  in  England had developed and used  whenever  urgent necessity  demanded  immediate and  decisive  interposition, were  peculiarly suited for the purpose, they conferred,  in the  States’ sphere, new and wide powers on the High  Courts of  issuing directions, orders, or writs primarily  for  the enforcement  of fundamental rights, the power to issue  such directions,  etc.,  "for  any  other  purpose"  being   also included with a view apparently to place all the High Courts in  this country in somewhat the same position as the  Court of  King’s  Bench in England.  But wide as were  the  powers thus conferred, a two-fold limitation was placed upon  their exercise.  In the first place, the power is to be  exercised "throughout   the  territories  in  relation  to  which   it exercises jurisdiction", that is to say, the writs issued (1)  70 I.A, 129 1151 by  the court cannot run beyond the territories  subject  to its jurisdiction.  Secondly, the person or authority to whom the  High  Court is empowered to issue such  writs  must  be "within those territories", which clearly implies that  they must be amenable to its jurisdiction either by residence  or location within those territories.   Such  limitation  is indeed a logical consequence  of  the origin  and  development of the power to  issue  prerogative writs as a special remedy in England.  Such power formed  no part  of the original or the appellate jurisdiction  of  the Court of King’s Bench.  As pointed out by Prof.   Holdsworth (History of English Law, Vol. 1, p. 212 et seq.) these writs had  their origin in the exercise of the King’s  prerogative power of superintendence over the due observance of the  law by his officials and tribunals, and were issued by the Court

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of  King’s  Bench-habeas  corpus, that  the  King  may  know whether  his  subjects  were  lawfully  imprisoned  or  not; certiorari,  that  he  may  know  whether  any   proceedings commenced against them are conformable to the law; mandamus, to  ensure  that his officials did such acts  as  they  were bound  to do under the law, and prohibition, to  oblige  the inferior  tribunals  in  his realm to  function  within  the limits  of  their  respective jurisdiction.   See  also  the introductory  remarks  in the judgment  in  the  Parlakimedi case(1).  These writs were thus specifically directed to the persons  or authorities against whom redress was sought  and were made returnable in the court issuing them and, in  case of   disobedience,  were  enforceable  by   attachment   for contempt.   These  characteristics of the  special  form  of remedy rendered it necessary for its effective use that  the persons or authorities to whom the court was asked to  issue these  writs should be within the limits of its  territorial jurisdiction.  We are unable to agree with the learned Judge below  that if a tribunal or authority  permanently  located and normally carrying on its activities elsewhere  exercises jurisdiction within those territorial  (1) 70 I.A. 129, 140. 1152 limits  so as to affect the rights of parties therein,  such tribunal  or  authority must be  regarded  as  "function’mg" within  the territorial limits of the High Court  and  being therefore amenable to its jurisdiction under article 226.   It  was, however, urged by the respondent’s  counsel  that the  High  Court  had jurisdiction to issue a  writ  to  the Commission at New Delhi because the question referred to  it for  decision related to the respondent’s right to  sit  and vote  in the Legislative Assembly at Madras and the  parties to  the  dispute also resided in the State of  Madras.   The position,  it  was  claimed,  was  analogous  to  the  court exercising  jurisdiction over persons outside the limits  of its jurisdiction, provided the cause of action arose  within those  limits.   Reliance  was  placed  upon  the  following observations  of  the  Privy  Council  in  the   Parlakimedi case(1):  "The question of jurisdiction must be regarded  as one of substance and that it would not have been within  the competence  of the Supreme Court to claim  juisdiction  over such  a matter as the present of issuing certiorari  to  the Board  of  Revenue on the strength of its  location  in  the town.   Such a view would give jurisdiction to  the  Supreme Court  in  the matter of the settlement of  rents  of  ryoti holdings in Ganges between parties not otherwise subject  to its  jurisdiction,  which  it would not have  had  over  the Revenue   Officer  who  dealt  with  the  matter  at   first instance." We cannot accede to this argument., The rule that cause  of action attracts jurisdiction in suits is based  on statutory enactment and cannot apply to writs issuable under article 226 which makes no reference to any cause of  action or where it arises but insists on the presence of the person or  authority within the territories" in relation  to  which the   High  Court  exercises  jurisdiction.   Nor  is   much assistance to be derived from the observations quoted above. That case arose out of proceedings before a special  Revenue Officer  for  settlement of fair rent for  certain  holdings within  the zemindary estate of Parlakimedi situated  beyond the  local limits of the original civil jurisdiction of  the Madras High Court.  Dissatisfied  (1) 70 I.A. 129. 1153 with  the settlement made by the Revenue Officer, the  ryots appealed  to the Board of Revenue which had its  offices  at

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Madras.   The appeal was accepted by a single member of  the Board  who  reduced the rent as desired by the  ryots.   The zemindar appealed by way of revision to the Collective Board which  sanctioned  an  enhancement.   Thereupon  the   ryots applied  to  the  High  Court for the issue  of  a  writ  of certiorari  to  bring up and quash the  proceedings  of  the Collective Board which passed the order complained of in the town  of Madras.  The Privy Council considered the  question of jurisdiction from two separate standpoints:-    "(a) independently of the local civil jurisdiction  which the High Court exercises over the Presidency town; or    (b)solely  by  reason  thereof, as  an  incident  of  the location of the Board of Revenue within the town."    On question (a), they examined the powers of the  Supreme Court  at Madras to issue certiorari beyond  the  Presidency Town  under  clause  8 of the Charter of  1800,  as  it  was suggested that the High Court succeeded to the  jurisdiction and  powers of the Supreme Court which had been granted  the same  powers  of issuing prerogative writs as the  Court  of King’s  Bench in England throughout the Province,  and  they recorded their conclusion thus: " Their Lordships are not of opinion that the Supreme  Court would  have  had any jurisdiction to correct  or  control  a country  court  of the company deciding  a  dispute  between Indian inhabitants of Ganjam about the rent payable for land in that district."     Then,  dealing with question (b) and referring to  their decision  in  Besants  case(1)  that  the  High  Courts   of Calcutta, Madras and Bombay had power to issue certiorari in the exercise of their local jurisdiction, they held that the principle  could not be applied "to the settlement  of  rent for  land in Ganjam merely on the basis of the  location  of the Board of Revenue as a body which is ordinarily  resident or located within  (1) 46 I.A. I 76. 1154 the  town  of  Madras,  or  on  the  basis  that  the  order complained of was made within the town. if SO, it would seem to  follow that the jurisdiction of the High Court would  be avoided  by the removal of the Board of Revenue  beyond  the outskirts of the town and that it would never attach but for the  circumstance  that  an     appeal  is  brought  to,  or proceedings in revision taken by, the Board of Revenue."   Then  followed  the passage already quoted  on  which  the respondent’s  counsel laid special stress.  It will thus  be seen  that the decision is no authority for dispensing  with the necessity of the presence or location, within the  local limits  of  the  court’s  jurisdiction,  of  the  person  or authority to whom the writ is to be issued, as the basis  of its  power to issue it.  Their Lordships considered, in  the peculiar  situation  they were dealing with, that  the  mere location  of  the appellate authority alone in the  town  of Madras  was  not  a sufficient basis  for  the  exercise  of jurisdiction  whereas  both the  subject-matter,  viz.,  the settlement  of  rent for lands in Ganjam,  and  the  Revenue Officer authorized to make the settlement at first  instance were  outside  the local limits of the jurisdiction  of  the High  Court.   If the court in Madras  were,  recognised  as having  jurisdiction to issue the writ of certiorari to  the appellate authority in Madras, it would practically be recognising  the  court’s  jurisdiction  over  the   Revenue Officer  in  Ganjam and the settlement of  rents  for  lands there,  which their Lordships held it never had.   That  was the  "substance"  of the matter they were  looking  at,  and their  observations lend no support to the view that if  the

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subject-matter  or  the  cause of  action  and  the  parties concerned   were  within  the  territorial  limits  of   the jurisdiction,  the High Court could issue prerogative  writs to  persons or authorities who are not within those  limits. In  any case, the decision did not turn on the  construction of  a  statutory  provision similar  in  scope’  purpose  or wording  to article 226 of the Constitution, and is  not  of much assistance in the construction of that article. 1155 It was said that it could not have been contemplated that an inhabitant  of the State of Madras, feeling aggrieved  by  a threatened  interference with the exercise of his rights  in that  State  by  an authority located in  Delhi  and  acting without  jurisdiction, should seek his remedy under  article 226 in the Punjab High Court.  It is a sufficient answer  to this argument of inconvenience to say that, the language  of the article being reasonably plain, it is idle to  speculate as to what was or was not contemplated.   Our attention has been called to certain decisions of High Courts  dealing  with  the  situation  where  the  authority claiming  to  exercise jurisdiction over a matter  at  first instance is located in one State and the appellate authority is  located in another State.  It is not necessary  for  the purposes  of  this appeal to decide which High  Court  would have jurisdiction in such circumstances to issue prerogative writs under article 226. In the view we have expressed above as to the  applicability of  article  226 to the present case, it is  unnecessary  to enter  upon  a discussion of the  question  whether  article 192(1)  applies  only to members who,  having  been  already elected, have become subject to a disqualification by reason of  events happening after their election; but having  heard the  point  fully  argued before us, we think  it  right  to express  our opinion thereon, especially as both sides  have invited us to do so in view of its general importance. The  relevant  provisions of the Constitution on  which  the determination of the question turns are as follows:    190.   (3) If a member of a House of the Legislature of a State---  (a) becomes   subject  to  any  of  the   disqualifications mentioned in clause (1) of article 191 ; or    (b)    resigns  his  seat  by  writing  under  his   hand addressed  to the Speaker or the Chairman, as the  case  may be,  his seat shall thereupon become vacant, 1156 191. (1) A person shall be disqualified for being chosen as, and  for  being,  a member of the  Legislative  Assembly  or Legislative Council of a State   (a)     if  he  holds  any  office  of  profit  under  the Government  of  India  or  the  Government  of  any   State, specified  in  the  First Schedule,  other  than  an  office declared  by  the  Legislature of the State 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 acknowledgment of allegiance or adherence to  a foreign   State;   (e)     if he is so disqualified by or under any law  made by   Parliament.    192.   (1) If any question arises as to whether a  member of a House of the Legislature of a State has become  subject to  any of the disqualifications mentioned in clause (1)  of

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article 191, the question shall be referred for the decision of the Governor and his decision shall be final.   (2)     Before  giving any decision on any such  question, the  Governor  shall  obtain the  opinion  of  the  Election Commission and shall act according to such opinion.   193.  If  a  person  sits or votes  as  a  member  of  the Legislative  Assembly  or  the  Legislative  Council  of   a State............ when he knows that he is not qualified  or that  he is disqualified for membership thereof, or that  he is  prohibited  from so doing by the provisions of  any  law made by Parliament or the Legislature of the State, he shall be  liable  in respect of each day on which he  so  sits  or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.   As  has been stated already, the  respondent’s  conviction and sentence in 1942 disqualified him both for being  chosen as,  and  for being, a member of  the  Legislative  Assembly under  article,  191  (1) (e) read with  section  7  of  the Representation of the People Act, 1951, 1157 passed  by  Parliament, the period of five years  since  his release on 15th August, 1947, not having elapsed before  the date of the election.  The respondent having thus been under a  disqualification  since  before his  nomination  on  15th March,  1952, could he be said to have "become"  subject  to that  disqualification within the meaning of article  192  ? The rival contentions of the parties centred round the  true interpretation  to be placed on that word in the context  of the provisions quoted above.     The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of  members", viz.,  articles.190 to 193, should be read together, and  as articles  191  and 193 clearly cover  both  preexisting  and supervening  disqualifications, articles 190 and 192  should also  be similarly understood as relating to both  kinds  of disqualification.   According  to him all  these  provisions together    constitute    an   integral    scheme    whereby disqualifications   are   laid  down   and   machinery   for determining  questions  arising in regard to  them  is  also provided.  The use of the word "become" in articles 190  (3) and 192 (1) is not inapt, in the context, to include  within its  scope preexisting disqualifications also,  as  becoming subject to a disqualification is predicated of "a member  of a  House  of Legislature", and a person who,  being  already disqualified,  gets  elected, can, not  inappropriately,  be said to "become" subject to the disqualification as a member as  soon as he is elected.  The argument is  more  ingenious than  sound.  Article 191, which lays down the same  set  of disqualifications for election as well as for continuing  as a  member, and article 193 which prescribes the penalty  for sitting and voting when disqualified, are naturally  phrased in   terms  wide  enough  to  cover  both  preexisting   and supervening  disqualifications; but it does not  necessarily follow that articles 190 (3) and 192 (1) must also be  taken to  cover both.  Their meaning must de end on  the  language used  which, we think, is reasonably plain.  In our  opinion these two articles go together and 150 1158 provide  a  remedy when a member incurs  a  disqualification after  he is elected as a member.  Not only do the  words  " becomes subject" in article 190(3) and "has become  subject" in  article 192(1) indicate a change in the position of  the member after he was elected, but the provision that his seat is  to  become thereupon vacant, that is to  say,  the  seat

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which the member was filling  theretofore becomes vacant  on his becoming disqualified, further reinforces the view  that the article contemplates only a sitting member incurring the disability  while  so  sitting.   The  suggestion  that  the language used in article 190(3) can equally be applied to  a pre-existing disqualification as a member can be supposed to vacate  his seat the moment he is elected is a strained  and farfetched   construction  and  cannot  be  accepted.    The Attorney-General  admitted  that  if the word "  is  "  were substituted  for "becomes" or " has become ", it would  more appropriately  convey the meaning contended for by him,  but he was unable to say why it was not used. It was said that on the view that articles 190(3) and 192(1) deal  with  disqualifications incurred after election  as  a member,  there  would be no way of unseating  a  member  who became  subject to a disqualification after  his  nomination and before his election, for, such a disqualification is  no ground for challenging the election by an election  petition under article 329 of the Constitution read with section  100 of  the Representation of the People Act, 1951.  If this  is an  anomaly,  it  arises  out of  a  lacuna  in  the  latter enactment  which  could  easily have  provided  for  such  a contingency, and it cannot be pressed as an argument against the   respondent’s   construction  of   the   constitutional provisions.   On  the  other  hand,  the  Attorney-General’s contention might, if accepted, lead to conflicting decisions by  the Governor dealing with a reference under article  192 and  by  the Election Tribunal inquiring  into  an  election petition  under  section 100 of  the  Parliamentary  statute referrred to above. For  the reasons indicated we agree with the  learned  Judge below in holding that articles 190(3) and 192(1) 1159 are  applicable only to disqualifications to which a  member becomes  subject  after  he is elected  as  such,  and  that neither the Governor nor the Commission has jurisdiction  to enquire  into the respondent’s disqualification which  arose long before his election. As,  however,  we  have held that the  High  Court  was  not competent under article 226 to issue any prerogative writ to the appellant Commission, the appeal is allowed and the writ of  prohibition issued by the learned Judge is quashed.   We make no order as to costs.                    Appeal allowed.    Agent for the appellant and the Intervener: G. H. Rajadhyaksha.     Agent for the respondent: S. Subramaniam.