K. S. SIDHU, J. - (1.) IN pursuance of section 12 of the Representation of the People Act, 1951 (43 of 1951), hereinafter to be referred to as the Act, the President issued a notification (Ex. 4), published in an Extraordinary issue of the Gazette of INdia, dated June 17, 1980, calling upon the elected members of the Legislative Assembly of Rajasthan to elect 4 members for the purpose of filling the seats of such of the members of the Council of States as had retired on April 2,1980, on the expiration of the term of their office. As a follow-up to the aforesaid notification, the Election Commission of INdia issued another notification under section 39 (1) of the Act, published in the same issue of the Gazette of INdia, appointing; June 24, 1980, as the last date for making nominations; June 25, 1980, as date for scrutiny of nominations; June 27, 1980, as the last date for withdrawal of candidatures July 4, 1980 as the date on which a poll shall, if necessary, be taken; and July 7, 1980, as the date before which the election shall be completed. The Returning Officer concerned has already issued a public notice of the intended election. Ex 2 is a Cyclostyled copy of the said notice.
(2.) A general election was held in the last week of May, 1980 for the purpose of constituting a new Legislative Assembly for the State of Rajasthan. Results of the said election were declared early in the first week of June, 1980. In pursuance of section 73 of the Act, the Election Commission of India issued a notification dated, June 6. 1980, and published in the Official Gazette, notifying the names of all the 200 members election for various constituencies. According to section 73, upon the issue of such a notification, the Legislative Assembly "shall be deemed to be duly constituted". None of the elected members has so far made and subscribed the requisite oath or affirmation as required by Article 188 of the Constitution of India. The petitioner, Nathu Singh, who describes himself as "elected from Bandi Kui (51) State Legislative Assembly Constituency of the State of Rajasthan in the election, the results of which were declared on 1-6-1980", has filed this writ petition under Article 226 of the Constitution of India, challenging notification, Ex 3 and Ex. 4, as invalid on grounds which may be summarised as follows : - (i) Notwithstanding the declaration of the results of the election under section 66 of the Act, and the grant of certificates of election by the Returning Officers concerned under Rule 66 of the Conduct of Election Rules, 1961 (hereinafter called the Rules), declaring various candidates to have been duly elected, the candidates concerned, do not become elected members of the Legislative Assembly until and unless they, respectively, make and subscribe an oath or affirmation according to Article 188 of the Constitution of India. A candidate who has been declared to be duly elected, as mentioned above, still remains, according to the petitioner, "a member elect" or "only a person intended to be a member of the State Legislative Assembly" till be makes and subscribes the oath or affirmation as stated above. (ii) Under the Act, only an elected member of the Legislative Assembly can sign the nomination paper of a candidate for election to the Council of States as a proposer. Since none of the so-called 'members-elect" has so far made and subscribed the requisite oath or affirmation, no candidate will be able to find a proposer who may validly nominate him. (iii) The Rajasthan Legislative Assembly has not so far been constituted. It will be constituted on June 26,1980. when it has been summoned to meet and when the persons elected are "likely" to make and subscribs the requisite oath or affirmation. The election process for biennial election to the Council of States cannot be validly initiated till the Legislative Assembly" which is the electorate in the case, is constituted according to law. The Advocate General for the State of Rajasthan who had entered a caveat on behalf of the Returning Officer, Biennial Election to the Council of States by the elected members of the Rajasthan Assembly, opposed this writ petition at the stage of admission itself and also contested the accompanying application for stay of the election. 420 After hearing both sides, I am of the considered opinion that this writ petition and, for that matter, the stay applications are wholly devoid of force and therefore deserve to be dismissed in limine. The core of the petitioner's argument which is common to all the three grounds taken up in the writ petition and summarised above is that without making and subscribing an oath or affirmation, as required by Article 188 of the Constitution, a candidate who is declared by a Returning Officer to have been duly elected by an Assembly Constituency to be a member of the Legislative Assembly, cannot be validly accepted as an elected member of the Legislative Assembly for the purpose of biennial election of members of the Council of States. I may rightaway point out that the fallacy of this argument is patent on the face of it. It will be seen that the petitioner would have as accept the unacceptable proposition that notwithstanding the statutory declaration by the Returning Officer that a candidate is declared to have been duly elected to be a member of the Legislative Assembly, he cannot be validly accepted as an elected member of the Legislative Assembly. I am quite aware of the fact that law is not always logical and that the Legislature could have enacted a legal fiction that a candidate who is declared to have been duly elected to be a member of the Legislative Assembly shall be deemed not to have been so duly elected for the purpose of being an elector for election of members of the Council of State until he makes and subscribes the requisite oath or affirmation I have very carefully examined the provisions of the Constitution the Act and the Rules, and find that no such legal fiction has been enacted therein either expressly or by necessary implication. Mr. Calla, learned counsel for the petitioner contended that the words "to be" in the collection of the words in the certificate of Election in Form 22 of the Rules, to the effect that "i have. . . declared Shri. . to have been duly elected. . . to be a member of the Legislative Assembly", clearly indicate the futurity of the declaration and the certificate, and that the candidate declared elected has yet to do something more by way of making and subscribing the oath or affirmation to convert his status from what Mr. Calla describes as "a member-elect" to an elected member of the Legislative Assembly within the purview of sections 12 and 152 of the Act, I am afraid the whole argument is based on a misconstruction of the words "to be" occurring in the Certificate of Election mention above. Mr Calla is reading a hyphen. which is not there, between the words "to" and "be" so that, put together, they make "to-be", which expression certainly imports an element of future. The meaning of the words "to be" as they occur in the certificate of election is plain and simple One of the dictionary meaning of the word "be" is "remain continue". If we substitute "remain, continue for "be" in the aforesaid extract from the certificate, the extract would read "i have. . . . . . declared Shri. . . to have been duly elected to remain/continue a member of the Legislative Assembly". It can therefore be safely held that Mr. Calla's reading of the words "to be" as if they were "to-be" is not correct and that the words "'o be" mean in the context that the candidate declared to have been duly elected as a member of the Legislative Assembly will have continuity of status as such or remain as such
(3.) A careful study of the relevant provisions of the Act and the Constitution will show that election of a person to a seat in either House of Parliament, or in the House or either House of the Legislative of a State, is one thing; and the taking by that person of the seat to which he has been elected is quite another. "election to a seat " and "taking a seat" are two entirely different legal concepts. "election to a seat" is provided for and dealt with by the Act. "taking a seat" is a concept which is linked with conduct of business of the Legislative 'conduct of Business" of the Legislative is provided for by the Constitution. Articles 99 and 100 of the Constitution deal with "conduct of Business" in either House of Parliament; and Articles 188 and 189 deal with "conduct of Business" in the Legislative Assembly or the Legislative Council of a State. Article 99 relating to either House of Parliament and Article 188 relating to either House of the Legislature of a State make it obligatory upon every member of either House of Parliament or Legislature of a State, regardless of the fact whether he is an elected member or a nominated member, to make and subscribe an oath or affirmation in the form prescribed in the Third Schedule of the Constitution as a condition precedent of his "taking his seat" to which he has been elected or nominated, as the case may be. Whether a person has become a member of either House of Parliament or the Legislature of a State is a question which is determined by reference to the provisions of the Act alone. Whether, after becoming such a member, he has taken the seat to which he has been elected or nominated, as the case may be, is a different issue which can be resolved by reference to Articles 99 and 188, and the Third Schedule, of the Constitution. It will thus be seen that "election to a seat" and "taking a seat" are two entirely different concepts One must therefore guard against confusing one for the other. Mr. Calla, learned counsel for the petitioner, was in my opinion, confusing the two concepts when he argued that a candidate who is declared, under the Act and the Rules, to have been duly elected to be a member of the Legislative Assembly does not become a member of the Legislative Assembly, until he makes and subscribes the requisite oath or affirmation. The only consequence of non-compliance by an elected member of the Legislative Assembly with the statutory requirement regarding the making and subscription of an oath or affirmation is that he cannot take the seat to which he has been elected. There is no bar to his exercising his other rights, powers and privileges as an elected member of the Legislative Assembly. It will be presently seen that even before he has made and subscribed the requisite oather affirmation, he is entitled to vote at the biennial election to the Council of States by virtue of being an elected member of the Legislative Assembly. Section 12 of the Act which deals with notification for biennial election to the Council of States provides inter alia that the President shall call upon "the elected members of the Legislative Assembly" to elect members of the Council of States "in accordance with the provisions of this Act and of the rules and orders made thereunder". In other words, the Act and the Rules are a complete Code among themselves so far as the election of members to the Council of States is concerned. Section 39 deals with "nomination of candidates at other elections" which includes a biennial election to the Council of States by the elected members of the Legislative Assembly. It lays down, inter alia, that most of the provi-sions. of sec 31 to 38, excluding a few, shall apply to a biennial election, like the impugned one, as they apply in relation to an election in any constituency. Provide (a) to section 39 (2) explains that reference in sections 31 to 38 to the electoral roll of the Constituency shall be construed, in the case of an election by the elected members of the Legislative Assembly of the State (like the impugned election), as reference to the list of elected members of that Assembly maintained under section 152 (1 ). In other words, the list of elected members of the Legislative Assembly maintained by the Returning Officer under section 152 (1) of the Act constitutes the electoral roll for the impugned biennial election and the elected members listed therein as such are the persons who are entitled to vote at the said election. The Rules also make this position clear beyond any doubt. Some of the definitions given in rule 2 of the Rules are important for our present purpose. These may be reproduced here as under : 2 (c) "election by assembly members" means an election to the Council of States by the elected members of the Legislative Assembly of a State or by the members of the electoral college of a Union territory, or an election to the Legislative Council of a State by the members of the Legislative Assembly of that State; 2 (d) "elector" in relation to an election by assembly members, means any person entitled to vote at that election; 2 (e) "election roll", in relation to an election by assembly members, means the list maintained under section 152 by the returning officer for that election. ;