JUDGMENT
U.L. Bhat, C.J.
1. After recent elections to the Madhya Pradesh Legislative Assembly, 5th respondent became the Chief Minister. By virtue of Article 164(4) of the Constitution of India, if the 5th respondent does not get elected as Member of the State Legislature within a period of six consecutive months, he shall cease to hold office. It is stated that the 5th respondent’s brother who was elected to the Legislative Assembly from Raghorarh
constituency, resigned, but on account of an election petition filed by the son of a defeated candidate Ramprasad Shivare, the Chief Election Commissioner directed that by-election would not be held for that constituency. It is alleged that 5th respondent offered inducement to Shri Ramprasad Shivahare to cause the election petition withdrawn, but without success. Second respondent who was elected to the State Legislature from Cha-choda constituency, tendered his resignation on 16-3-1994 on account of pressure and inducement offered by 5th respondent. According to the petitioner, the resignation was not accepted by the Speaker. It is alleged that the resignation was not voluntary or lawful and there was no acceptance in the eye of law. On these averments, petitioner lias sought declaration that the resignation was neither voluntary, nor one within the meaning of “resignation” as per Article 190(3)(b), quashing the declaration made in the Legislative Assembly in regard to the resignation and declaration that the Chachoda Assembly seat is not vacant and the second respondent continues to be the member representing the constituency.
2. Second respondent filed a caveat. He has filed an affidavit and copy of the declaration made by the Speaker and the gazette notification relating to the acceptance of the resignation. Respondents 2 and 3 have sworn to separate affidavits and produced some documents.
3. We have heard learned counsel representing the petitioner and respondents 2,3 and 5. We find it unnecessary to issue notice to respondents 1 and 4.
4. Learned counsel for the petitioner has urged the following contentions in the course
of his arguments:
(i) The resignation tendered by second respondent is not “resignation” as contemplated by Article 190(3)(b) of the Constitution.
(ii) The resignation does not conform to the requirements of Article 190(3)(b) of the Constitution.
(iii) The resignation was not voluntary.
(iv) There was no real acceptance of resignation by the Speaker and the purported
acceptance by the Deputy Speaker is invalid.
(v) No enquiry was made by the Speaker in regard to the voluntariness of the resignation.
5. Learned counsel appearing for the respondents have rebutted the above contentions. Learned counsel for the fifth respondent has also argued on the extent of justiciability of the action of the Speaker.
6. Point No. (i) Clauses (I) to (3) of Article 190 of the Constitution read thus:
“190(1). No person shall be a member of both Houses of the Legislature of a State and provision shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other.
(2) No person shall be a member of the Legislatures of two or more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States, then at the expiration of such period as may be specified in rules made by the President, that person’s seat in the Legislatures of all such States shall become vacant unless he has previously resigned his seat in the Legislatures of all but one of the States.
(3). If a member of a House of the Legislature of a State- (a) become subject to any of the disqualifications mentioned in Clasue (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, and his resignation is accepted by the Speaker or the Chairman, as the case may be his seat shall thereupon become vacant; Provided that in the case of any resignation referred to in Sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation."
7. Where a State has two Houses of Legislature and a person is chosen as a member of both Houses, the State Legislature shall, by law, provide for the vacation of his seat in one house or the other. Such vacation of the seat could be only by resignation. Where a person is chosen as a member of the Legislature of two or more States, on expiration of the specified period, the person’s seat in the Legislatures in all such States shall become vacant unless he has previously resigned his seat in the Legislatures of one of the States. Sub-sections (1) and (2) relate to two contingencies in which a seat becomes vacant. Sub-section (3) deals with other circumstances under which a seat becomes vacant. Clause (a) refers to a seat becoming vacant on disqualification. Clause (b) contemplates yet another contingency of a seat becoming vacant, namely, acceptance of the resignation of a member.
8. According to the learned counsel for the petitioner, election which is a necesssary concomitant of democracy, is a costly exercise, that an eligible person is entitled to contest the election and once he is elected, he is bound to continue to serve as a member of the Legislature for the requisite period except in cases contemplated in Sub-section (1) or (2) of Article 190 and the provisions for resignation in Sub-section 3(b) relates only to the resignation contemplated in Sub-sections (1) and (2). An elected member of the Legislature has no right to resign his seat except where he is chosen as a member of either both Houses of Legislature or of Legislatures of two or more States. Learned counsel placed reliance on certain observations relating to democracy being the basic structure of the Constitution and a candidate securing votes on the representation made by him to the electors, election being the essential concomitant of democracy and people being political sovereigns, seen at pages 429, 432 and 433 in the decision in Shri Kihota Hollohon v. Zachilhu, AIR 1993 SC 412. Learned counsel further contended that the Constitution does not contemplate resignation of an elected member soon after the election, as such resignation amounts to betrayal of the election and the elected member is bound to consult the
electorate before tendering resignation.
9. Any eligible person has a right to contest the election. It is for the electorate to make its choice. Once a candidate is elected, ordinarily he is expected to function as a member of the Legislative Assembly for the requisite term. There is nothing in the Constitution which takes away the right of an elected member to resign his seat. Denial of such a right to an elected member would be destructive of principles of democracy. A legislator is the servant, but not the slave of the people. It is true that frequent resignations and frequent by-elections are a drain on the finances of the State and may prove irksome. But that is no reason to compel an elected member who has no desire to continue his membership, to continue as such. A person, after getting elected, may, for variety of reasons, desire not to continue as a member. His reasons may be good or bad, but that is his decision and his right.
10. Article 190 occurs in Chapter III of Part VI of the Constitution. Part VI deals with States. Chapter III deals with the Legislature. This Chapter is divided into several sub-parts, namely general, Officers of the State Legislature, conduct, of business, disqualifications of members, legislative procedure, procedure in financial matters and procedure generally. Article 190 no doubt occurs below the sub-heading ‘disqualifications of members’. The sub-heading itself is not of much importance in view of the heading of the Articles itself which is given as ‘Vacation of Seats.’ It is clear that Article 190 deals with vacation of seats, i.e. contingencies in which seats become vacant. Sub-section (I) deals with seats being vacated by a person elected and chosen as member of two Houses of the Legislature. Sub-section (2) deals with seats being vacated where a person is chosen as a member of the Legislatures of two or more States. His seat in all the Legislatures shall become vacant unless there is a previous resignation. Neither Sub-section (1), nor subsection (2) can be said to relate to disqualification of members. Sub-section (3) relates to a seat becoming vacant, either on account of disqualification or on account of resignation which is accepted. The disqualification
referred to in Clause (a) is one contemplated in Sub-sections (1) and (2) of Article 191 of the
Constitution. Provisions in Article 191 have
nothing to do with the contingencies contem
plated in Sub-section (1), (2) or (3) (b) of Article 190. Sub-section 3(b) is an independent
provision providing for a seat becoming
vacant on the acceptance of resignation of a
member. The resignation which may be
tendered to escape the consequences of Sub-section (1) or (2), has to be given and accepted
in the manner provided in Sub-section 3(b),
but this provision is not limited-to the situations contemplated under Sub-sections (1)
and (2). There is nothing in the language of Sub-section 3(b) which indicates any such
limitation regarding the amplitude of its
scope. There is no principle of democracy
which compels an elected member to continue
to be a member even if he no longer desires to
continue as such or which inhibits him from
resigning his seat. It cannot be that the
electorate has the right to compel an
unwilling member to continue or to be
consulted before resignation. We are inclined
to hold that an elected member can resign his
seat independently of the circumstances
contemplated in Sub-sections (1) and (2) of Article 190. He may resign for any reason which
weighs with him, and the tenability of the
reason cannot be subjected to scrutiny either
by the Speaker or any other authority. The
resignation by second respondent, though not
one contemplated by Sub-section (1) or (2) of Article 190 is permitted by sub-Section (3)(b) of
Section 190.
11. Point No. (ii): Article 190(3)(b) contemplates a situation where a member “resigns his seat by writing under his hand addressed to the Speaker or the Chairman as the case may be.” There is no dispute about the genuineness of second respondent’s resignation, copies of which are Annexures A and R-1. It is typewritten and bears the signature of the second respondent. It was addressed to the Speaker. Second respondent stated therein that he was voluntarily resigning from his seat. According to learned counsel for the petitioner, since the resignation must be “by writing and under his hand,” it must be actually written by hand and cannot be typed. Section 3(65) of the General
Clauses Act 1897, states thus : “Expressions referring to ‘writing’ shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form”. Undoubtedly, a paper which is typed or typewritten, is a writing according to the above definition. We are supported in this conclusion by a decision of a Division Bench of Karnataka High Court in Vice-Chairman, Maranbeed Village Panchayat v. Channa-bassappa B. Gaddi, AIR 1985 Kant 252. The provision under consideration in that case required that the Vice-Chairman may “resign his office by writing under his hand addressed to the Chairman” a language similar to that used in Article 190(3)(b). The court, after noticing the definition in the Karnataka General Clauses Act, 1899, which is on par with the definition in the Central Act, the absence of definition of the word ‘hand’ in the particular statutes or in the General Clauses Act, the variety of meanings attributed to the word ‘hand’ in the dictionaries and permanent edition Vol. 43 of permanent edition of Words and Phrases, came to the following conclusion (at p 256 of AIR):
“It is, therefore, clear that the phrase ‘under his hand’ ordinarily means that it is a writing signed by the person concerned. The question for consideration is as to whether there is any good reason why we should not interpret the expression ‘writing under his hand’ as including within its ambit a type-written letter of resignation duly signed by the person tendering his resignation. If an illiterate person becomes Chairman of a Panchayat, it is important for him to write his resignation in his own hand. There may also be a case of a person without any hand becoming Chairman of the Panchayat.”
The Court held that the letter of resignation, the contents of which are typed and which bear the signature of the Vice-Chairman, satisfied the requirements of law.
12. According to learned counsel for the petitioner, the Karnataka High Court did not pay any attention to the word ‘by’ occurring before the word ‘writing’. The Supreme Court, in State of Gajarat v. Jamnadas G. Pabri, AIR 1974 SC 2233, interpreting the
words “by reason of disturbances,” held that the expression “by reason of” indicates that” “disturbances” and “situation” must be proximately connected as cause and effect. It is, therefore, argued that the use of the word “by” would indicate that “hand” and “working” should have proximate connection as cause and effect. We do not think the principle discussed by the Supreme Court can have any application in the present context. The phrase “by writing” cannot, by any stretch of imagination, be considered as requiring the person resigning to write, the resignation in his own hand. Such an interpretation will assume that the founding fathers of the Constitution were unaware that the majority of electors and a few of those elected would be illiterate and some of them may not be in a position to hold a pen with the hand and write anything, or even put the signature. “Sign”, as indicated in Section 3(56) of the General Clauses Act, 1897, shall, with reference to a person who is unable to writ his name, includes ‘mark’. An illiterate can sign by putting any mark. We are unable to accept the interpretation sought to be placed on the provision by learned counsel for the petitioner. The phrase “by writing under his hand” is used to indicate that the resignation cannot be oral and it must be in writing and must be by hand, i.e. it must bear his signature. If these two elements are present, the resignation satisfies the requirement of law. Undoubtedly, the resignation letter in question is typed or typewritten and bare the signature of the second respondent. There is no infirmity in the same. The point is answered accordingly.
13. Point No. (iii): It is contended that the resignation is not voluntary. The allegation of the petitioner is that it was under pressure and inducement of 5th respondent who, “it is learnt”, had promised second respondent Chairmanship of a Corporation, with Cabinet Rank. It is said that the resignation is not voluntary,, since second respondent who must have spent a huge sum of money for election and undertaken hard labour in canvassing, would not have resigned for no reason. The rules of procedure relating to the . Legislature make it clear that a person
tendering resignation is not required to state the reason. We do not think this aspect should detain us since the second respondent who tendered his resignation has sworn to an affidavit that he tendered the resignation of his own free will and without any duress and without being influenced by anyone and that he had personally handed over the resignation to the Speaker on 16-3-1994 and conveyed to him that he was resigning of his own free will. The third respondent, the Speaker, has sworn to an affidavit that the second respondent came to his chamber in the Legislative Complex and stated that he was resigning from his seat and handed over the letter dated 16-3-1994 to him. He read it and found that it was letter of resignation. The third respondent asked second respondent if he was resigning voluntarily after considering the pros and cons and the second respondent replied that the had thought over the matter and decided to resign of his own without any pressure or inducement from any quarters and after such verification from the second respondent, third respondent was fully satisfied about the voluntary nature of the resignation.
14. We may also point out that the petitioner could not have any personal knowledge in regard to the voluntariness or otherwise of the resignation. The petitioner does not claim any such personal knowledge though curiously in his affidavit, he states that contents of paras 1 to 19 of the petition are true to his personal knowledge. He does not claim to be a witness to the application of pressure or inducement.
15. Having regard to the affidavits of respondents 2 and 3 and other circumstances referred to above, we hold that the challenge against the voluntariness of the resignation must fail. The point is answered accordingly.
16. Point No. (iv): it is contended that there is no acceptance by the Speaker in the eyes of law. This contention is rebutted by the affidavits of respondents 2 and 3. Annexure R-l is a photo copy of the resignation letter with all the endorsements. The letter states that the petitioner, of his own volition, was submitting his resignation and requested the
Speaker to accept it. At the top of the letter is the endorsement by the Speaker to the Secretary dated 16-3-1994. On the left hand side are endorsements by the Officers of the Secretariat with initial of the Speaker dated 17-3-1994. The affidavit of the Speaker states that after perusing the resignation letter and considering the answers given by the second respondent to his questions, he was satisfied that the resignation was voluntary and he marked it to the Secretary, put his signature and date and the Secretary prepared the note sheet and after due processding, it was placed before the Speaker on 17-3-1994 and accepting the resignation, he affixed his signature on the note sheet. Of course, the word ‘accepted’ is not present in the letter or the note sheet, but we have no reason to disregard the statement of the Speaker that he put his signature in token of acceptance of the resignation. This is further supported by the admitted fact that the Dy. Speaker announced in the House the acceptance of the resignation. The affidavit of the Speaker shows that declaration of acceptance was made on the floor of the House by the Dy. Speaker who was then in the Chair. A copy of the declaration furnished by the learned counsel for the third respondent shows that it was the declaration in the name of the Speaker. This was also made on 17-3-1994. The gazette notification was also made on 17-3-1994. In the circumstances, it is futile for the petitioner to contend that there was a no valid acceptance by the Speaker of the resignation after being satisfied about its voluntary nature. Point is anaswered accordingly.
17. Point No. (v): The proviso to Clause (3)(b) of Article 190 requires that if on information received or otherwise and after making such enquiry as he thinks fit, the Speaker is satisfied that such resignation is not voluntary or genuine, he shall not accept such resigantion. It may be useful to refer to Article 190(3)(b) as it existed before it was amended by the 33rd Amendment Act, 1974. The unamended provision read as follows:
“190(3)(b) — If a member of a House of the Legislature of a State ********
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 vacate.”
This clause was amended to clarify that the seat shall become vacant only on the resignation being accepted by the Speaker. A proviso was also added. The proviso which is in the negative form, requires the Speaker not to accept the resignation if he is satisfied on the basis of information received or otherwise and after making such enquiry as he thinks fit the resignation is not voluntary or genuine.
18. Learned counsel for the petitioner contends that it was necessary for the Speaker to make an enquiry, but the Speaker did not make any enquiry and merely some questions to the second respondent. According to the learned counsel, 5th respondent was in a quandary as the seat vacated by his brother was not available for him to contest in view of pendency of an election petition which he unsuccessfully tried to get withdrawn and he wanted to have another seat vacated and, therefore, must have brought to bear pressure on the second respondent and these developments were known to the Speaker. In such circumstances, it is argued, it was incumbent on the Speaker to conduct an enquiry.
19. The unamended provision in Article 190(3)(b) came up for consideration in Thankamma v. The Hon. Speaker Legislative Assembly Travancore-Cochin State, AIR 1952 Trav Co 166. The provision did not specifically refer to acceptance of the resignation. The High Court held that the mere receipt by the Speaker of a letter of resignation purporting to be from a member will not cause the member’s seat to become vacant and it was open to the Speaker to enquire whether it was a genuine letter or a forged one obtained by fraud or force. In Suratsingh Yadav v. Sudamprasad Goswami, AIR 1965 All 536, it was held that acceptance was necessary to render the seat vacant. With respect, we agree that resignation to be effective to be accepted. The seat could not be . regarded as vacant unless the resignation is accepted. The amendment to Section 190(3)(b) is clearly clarificatory in nature.
20. There was acceptance in this case as we have already held. We do not think an enquiry is required in every case by the proviso to Article 190 (3)b). The provision empowers the Speaker to make such enquiry as he thinks fit. If he is satisfied that the resignation is not voluntary or genuine from information received and after making such enquiry as he thinks fit, he shall not accept the resignation. When the second respondent personally tendered the resignation to the Speaker and assured him about the voluntary nature, the Speaker could have had no doubt on that score. It is not alleged that the Speaker had any information which could create a doubt in his mind. Nevertheless, he put necessary questions and elicited answers from second respondent. The procedure adopted by the Speaker constitutes “enquiry”. The provision does not stipulate any particular type of enquiry. The nature of enquiry depends on facts and circumstances of each case. We do not think in the facts and circumstances of the case, any further enquiry was required or necessitated. It was for the Speaker to judge the sitaution. His judgment cannot be said to be perversed or unreasonable.
21. In the course of arguments, an attempt has been made to suggest that the Speaker could have been party to a fraud. Three circumstances have been relied on for this purpose. Annexure R-l contains certain endorsements on left hand side. These endorsements are not seen in Annexure A-l which is also a photo copy of the resignation letter, Petitioner has not placed before us a copy of the application he filed to secure the copy. The petition also does not contain any specific allegation of any manipulation in the endorsements. In the circumstances, we cannot draw any inferences from such discrepancy in the photo copies. The second circumstance is that though according to the affidavit of the third respondent, on questioning the second respondent on 16-3-1994 he was satisfied about the genuineness, he did not immediately accept it, but marked it to the Secretary, evidently for processing. It is suggested that this delay is suspicious. We are unable to agree. When the resignation was submitted to him, it was his duty to question the tenderer. He performed his duty and arrived
at the requisite satisfaction. He wanted the assistance of the Secretariat to formally deal with the resignation and, therefore, marked it to the Secretary and when it was placed before him the next day, he put his signature in the note sheet in token of acceptance of the resignation. It appears to us that he dealt with the matter with all the necessary expedition and it cannot be said that there was any delay in the matter. The third circumstance relied is the alleged unsuccessful attempt of the fifth respondent to get the election petition against his brother withdrawn. Apart from the allegations, there is no prima facie material before the Court. Therefore, the challenge against the Speaker’s action must be repelled.
22. Petitioner has failed to make out the challenge against the resignation, the acceptance thereof and the consequential vacation of the seat held by second respondent. On the contentions that have been urged on behalf of the petitioner, we are inclined to accept the submissions made on behalf of respondents 2 and 5 that the petition is politically motivated and amounts to abuse of the process of the Court. It is necessary to take note of this aspect in disposing of the petition. The petition is dismissed. We direct the petitioner to pay costs of Rs. 1,000.00 to each of respondents 2 and 3 and 5.