Writ Petition No. 1066 of 2013 (MS). Case: Ajay Bhatt Vs State. Uttarakhand High Court
| Case Number | Writ Petition No. 1066 of 2013 (MS) |
| Counsel | For Petitioner: Satya Pal Jain, Sr. Advocate, Rakesh Thapliyal, Pankaj Chaturvedi, Sanjay Bhatt, Advs. and For Respondents: U. K. Uniyal Advocate General, K. P. Upadhyaya, Chief Standing Counsel, Paresh Tripathi, Addl. Chief Standing, Mrs. Anjali Bhargava, Adv. |
| Judges | V. K. Bist, J. |
| Issue | Constitution of India - Articles 191, 192 |
| Citation | AIR 2013 Utr 108 |
| Judgement Date | July 09, 2013 |
| Court | Uttarakhand High Court |
Judgment:
1. By means of this petition, the petitioner has challenged the Notification No.178/XXXVI(3)/2013/36 (2)/2006 dated 13th April, 2013, whereby His Excellency the Governor of the State of Uttarakhand, by exercising the powers as provided under Article 213 (1) of the Constitution of India, has promulgated the Ordinance No.01 of 2013 known as The Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Ordinance, 2013 {hereinafter referred to as the 'Ordinance'}, according to which the amended Ordinance shall be deemed to have come into force with retrospective date i.e. 13.03.2012. By this Ordinance, an amendment has been made in Section 3 of the Uttar Pradesh State Legislature (Prevention of Disqualification) Act, 1971(as applicable in the State of Uttarakhand) {hereinafter referred to as the 'Principal Act'}, by inserting five bodies at serial No.58 to serial No.62. In addition to amendment in Section 3 of the Principal Act by inserting five bodies, a saving clause has also been incorporated by the Ordinance, wherein it is provided that notwithstanding such amendments, anything done or any action taken under the Principal Act, shall be deemed to have been done or taken under the Ordinance. Further prayer has been made for declaring private respondent, namely, Dr. Harak Singh Rawat as disqualified for being a Member of the Uttarakhand Legislative Assembly in view of Article 191 of the Constitution of India.
2. In the year 2012, the respondent No.4, Dr. Harak Singh Rawat was elected as a Member of the State Legislative Assembly in the General Election held in the month of January, 2012, and thereafter, he was appointed as the Cabinet Minister. By an Office Memorandum dated 7th August, 2012, issued by the Principal Secretary of the Agriculture and Marketing Department, he was appointed as Director of Uttarakhand Seeds and Tarai Development Corporation Ltd. By a subsequent Office Memorandum dated 7th August, 2012, he was also appointed as Chairman of the said corporation. Further, the respondent No.4 was also appointed as Chairman of Uttarakhand Purva Sainik Kalyan Nigam Ltd. and also Chairman of Uttarakhand State Seeds and Organic Certification Agency. Offices of these posts were office of profit. The respondent No.4 took over the charge of these posts.
3. The petitioner was also elected as Member of the State Legislative Assembly. Thereafter, he was elected as the Leader of Opposition for the State Legislative Assembly. On 2nd April, 2013, the State President of the B.J.P. submitted a memorandum to His Excellency the Governor of the State with the contention that the respondent No.4, Dr. Harak Singh Rawat, Agriculture Minister, is also holding the office of profit of different corporations including Uttarakhand Seeds and Tarai Development Corporation Ltd. and in view of Article 191 (1)(a) of the Constitution of India, he should be declared disqualified for being a Member of the Uttarakhand Legislative Assembly. Another Memorandum dated 10.04.2013 was also submitted before the Governor of the State. The Memorandum dated 2nd April, 2013 was signed by the Leader of Opposition i.e. the present petitioner and other members of the party.
4. Mr. Satya Pal Jain, Senior Advocate for the petitioner by referring Article 191 and Article 192 of the Constitution of India submitted that admittedly, on the date of filing of representation before His Excellency the Governor on 2nd April, 2013, seeking disqualification of the respondent No.4, the respondent No.4 was holding the posts, which were outside the Principal Act. Therefore, since the respondent No.4 was holding the post of office of profit on 2nd April, 2013, he stood disqualified under Article 191 of the Constitution of India. He further submitted that the Governor was under the obligation to decide the question raised by the petitioner with regard to the disqualification of the respondent No.4. The Governor was under legal obligation to obtain the opinion of the Election Commission and to take a decision on the question raised by the petitioner. Subsequently, on 13.04.2013, an Ordinance has been promulgated by the Governor of the State by inserting five bodies at serial No.58 to serial No.62 of the Principal Act and this brought all the posts, which were being occupied by the respondent No.4, outside the office of profit from retrospective date. Thus, the Ordinance has been promulgated using colourable exercise of power. According to Mr. Satya Pal Jain, Senior Advocate the Governor, before considering the promulgation of Ordinance, should have referred the matter to the Election Commission and should have taken decision as provided under Article 192 of the Constitution of India, which has not been done. He argued that the Ordinance promulgated by the Governor is subject to approval by Legislature. The same may lapse after a period of six months. He contended that there is nothing, which could show the emergency in the matter and the Governor has exercised the power in improper manner. By referring the judgments...
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