HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.1 AFR Reserved on 15.05.2015 Delivered on 28.05.2015 Case :- MISC. BENCH No. - 697 of 2015 Petitioner :- Uma Shanker Singh Respondent :- Principal Secretary to His Excellency The Governor Of U.P. Lucknow & 4 Ors. Counsel for Petitioner :- Akshat Srivastava,Avishesh Kumar Singh,Bharat Singh,Mudit Agarwal,Vibhanshu Srivastava Counsel for Respondent :- Abhinav N. Trivedi,Anish Kumar Gupta,Anupam Mehrotra,Brijesh Kumar Shukla,Dr. L.P. Mishra,Jai Narayan Pandey,V.K. Dubey ----------- Hon'ble Dinesh Maheshwari, J.
Hon'ble Ritu Raj Awasthi, J.
[Per Dinesh Maheshwari, J.] Preliminary The petitioner Uma Shankar Singh contested the General Elections held in the year 2012 to the Uttar Pradesh Legislative Assembly from Rasara (Ballia) constituency and was declared elected on 06.03.2012. However, in exercise of the powers conferred by Article 192 of the Constitution of India, the Governor of the State of Uttar Pradesh has declared, in his order dated 29.01.2015, that the petitioner had incurred disqualification in terms of clause (e) of Article 191 (1) of the Constitution of India read with Section 9A of the Representation of People Act, 1951 ('the Act of 1951' hereinafter) for the reason of his having continued with the work of contracts obtained from the Government of Uttar Pradesh even after election as the Member of the Legislative Assembly ('MLA'). Aggrieved, the petitioner has preferred this writ petition questioning the order so passed by the Governor of Uttar Pradesh, as also the reports/orders/proceedings preceding such decision, including the report dated 18.02.2014 as submitted by the Lokayukta of the State of Uttar Pradesh and the opinion dated 31.12.2014, as stated by the Election Commission of India.
The provisions contained in Article 192 of the Constitution of India could be taken note of at the outset as under:-
"192. Decision on questions as to disqualifications of members.-(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 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."
Section 9-A of the Act of 1951 could also be taken note of as under:-
"9A. Disqualification for Government contracts, etc. --A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works, undertaken by that Government.
Explanation.--For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part."
Multiple and variety of contentions have been urged in this matter on behalf of the petitioner and the contesting respondents on the legality and validity of the report dated 18.02.2014 of the Lokayukta of the State of Uttar Pradesh; on the opinion forwarded by the Election Commission dated 31.12.2014; and the order passed by His Excellency the Governor of Uttar Pradesh dated 29.01.2015, related with the operation of the relevant provisions of law, as also the facts of the case.
Before dealing with the relevant contentions to the extent requisite for disposal of this writ petition, appropriate it would be to take note of, in brief, the relevant background aspects of the matter.
The Background:
The respondent No. 5, Subhash Chandra Singh alias Krantikari, said to be practicing as an Advocate, made a complaint dated 23.12.2011 before the Lokayukta, Uttar Pradesh alleging therein, inter alia, that the petitioner had connived in misappropriation of Government money by managing the contracts from Public Works Department of the Government of Uttar Pradesh and had even executed the works without the requisite tender process. The instances mentioned in the complaint dated 23.12.2011 had essentially been of the years 1999-2004; and allegations were made against the petitioner as contractor and against the concerned engineers of the Public Works Department of Government of Uttar Pradesh ('PWD').
The aforesaid complaint remained pending with Lokayukta for long without there being any specific proceedings thereupon. In the meantime, as noticed, the petitioner got elected to the Legislative Assembly on 06.03.2012. Thereafter, on 18.12.2013, the respondent No. 5 addressed a fresh communication to the Lokayukta with the allegation that the petitioner had obtained Government contracts without furnishing the requisite security and with several manipulations. The respondent No. 5 also submitted an affidavit alleging that the petitioner had misappropriated crores of rupees; and prayed that the matter of corruption of the petitioner be got inquired into. The respondent No. 5 submitted yet another affidavit dated 18.12.2013 (Annexure-8) with reference to his complaint made in the year 2011, with the submissions that at the time of filing of the complaint, the petitioner Sri Uma Shankar Singh was not a Public Servant but, from the month of March 2012, he had become Public Servant; and in his regard, the Lokayukta had the authority to take up the inquiry. The complainant further submitted that he shall be furnishing the evidence against the petitioner by 15.01.2014 The contents of this affidavit are reproduced hereunder for ready reference:
"1 ;g fd tc ;g ifjokn nkf[ky fd;k x;k Fkk ml le; mek'kadj flag yksdlsod ugha FksA 2 ;g fd Jh mek'kadj flag yksdlsod ekpZ lu~ 2012 esa cus Fks vc bl ifjokn dh Js.kh esa yksdlsod gSA vc tkWap dh Js.kh esa vk jgs gSaA 3 ;g fd jlM+k ¼cfy;k½ ds fo/kk;d mek'kadj flag dqN gh le; esa ywV [klksV ds tfj;s yksd lsod dks viuh lkft'k nqjHklaf/k vkSj feyhHkxr ds dkj.k tks lEifRr vftZr fd;k gS og lEifRr vk;dj dh pksjh ls cpus ds fy, vius fe=x.k] fj'rsnkj] dEiuh ,u0th0vks0] QeZ] ds uke cukdj dkys /ku dks ua0 1 esa cny fn;k gSA 4 ;g fd yksdk;qDr egksn; th ls lfou; fuosnu gS fd mijksDr 'kiFk i= dks fjdkMZ ij fy;k tk;sA 5 ;g fd Jh mek'kadj flag vc yksdlsod gSa buds Hkz"Vkpkj ds izdj.k ij vki yksx vk;qDr egksn; dks tkWap djus o djkus dk vf/kdkj gS budh tkWap djkdj ds HkzVkpkj ds izdj.k ij dkuwuh dk;Zokgh fd;k tkuk U;k;ksfpr gSA 6 ;g fd ekuuh; yksdk;qDr egksn; dks fo/kk;d mek'kadj flag ds fo#+) lcwr 15 tuojh rd ns nWawxkA^^ It appears that on the complaint so made and the available evidence, the Lokayukta, primafacie, formed an opinion that the dealings of the petitioner were hit by Section 9A of the Act of 1951 and Article 191 of the Constitution of India. The Lokayukta however, allegedly 'admitted' the complaint for investigation and issued notice to the petitioner in terms of Section 10 of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 ('the Act of 1975' hereinafter) and sent a notice dated 01.01.2014 affording opportunity to the petitioner to offer his comments. The contents of this notice dated 01.01.2014 being also relevant for the present purpose, are noticed hereunder for ready reference:
^^mi;qZDr fo"k; ds laca/k esa eq>s vkils ;g dgus dh vis{kk dh x;h gS fd ifjoknh Jh lqHkk"k pUnz flag mQZ dzkfUrdkjh] ,MoksdsV] cfy;k }kjk yksd vk;qDr iz'kklu esa ,d ifjokn izLrqr fd;k x;k gS ftlesa izkIr lk{;ksa ls Li"V gqvk gS fd vkius fo/kk;d fuokZfpr gksus ds ckn fcuk Bsdsnkjh dk iathdj.k uohuhd`r djk;s Hkkjrh; lafo/kku ds vuqPNsn 191 vkSj tu izfrfuf/kRo vf/kfu;e 1951 dh /kkjk 9 ¼d½ ds izko/kkuksa ds mYya?ku esa jkT; ljdkj ds yksd fuekZ.k foHkkx ds Bsds viuh dEiuh eS0 Nk= 'kfDr dULVz~D'ku dEiuh fyfeVsM ds uke izkIr fd;s gSaA blfy, izLrqr ifjokn dks blh fcUnq ij vkids fo#) ekuuh; yksd vk;qDr th us mRrj izns'k yksd vk;qDr rFkk mi yksd vk;qDr vf/kfu;e] 1975 dh /kkjk 10 ¼1½ ¼d½ ds vUrxZr vUos"k.k gsrq xzg.k fd;k gSA ifjokn dh izfrfyfi] ifjoknh }kjk nkf[ky fd;s x;s 'kiFk i= vkSj vkids }kjk izkIr fd;s x;s Bsdksa ds laca/k esa ,df=r lk{;ksa o Bsdksa dh lwph layXu dh tk jgh gSA vr% mi;qZDr laca/k esa vkidks viuk i{k ekuuh; yksd vk;qDr th ds voyksdukFkZ eq>s fnukad 15 tuojh] 2014 rd mRrj izns'k yksd vk;qDr rFkk vf/kfu;e 1975 dh /kkjk 10 ¼1½ ¼[k½ ds izkfo/kku ds vUrxZr miyC/k djkus dk volj iznku fd;k tkrk gSA^^ The contents of the aforesaid communication dated 01.01.2014 makes it clear that the allegation entertained against the petitioner had essentially been of his having obtained the contracts, even after getting elected as the Member of Legislative Assembly, in the name of his company 'M/s Chhatra Shakti Constructions Company Ltd.'. As would unfold hereafter, the name of the contracting company, its status and the petitioner's relation therewith has been a matter of several doubts and disputes. Put in a nutshell, suffice it to notice at present that the contractor concerned was registered with the Public Works Department of the Government of Uttar Pradesh and had been working in the name and style of the firm 'M/s Chhatra Shakti Construction Company'. The petitioner, for all purposes, appears to have remained a person in charge of the affairs of this firm. This firm had been, in several documents, referred as the 'proprietorship' concern of the petitioner; and the petitioner had even himself stated his status as being the proprietor of this firm.
However, in the proceedings under consideration, the case of the petitioner has been that M/s Chhatra Shakti Construction Company was a partnership firm which, as per the expression of the petitioner, was "loosely used as propriety concern". The case of the petitioner further has been that this firm came to be incorporated as a Limited company in the name of 'C.S. Infraconstruction Limited' under Part IX of the Companies Act, 1956 by the Registrar of the Companies, as per the certificate of incorporation issued on 10.11.2009 (Annexure-11); and the information in that regard was duly forwarded to the Public Works Department, who issued a registration certificate on 24.05.2010 whereby, the registration of erstwhile M/s Chhatra Shakti Construction Company, which was available up to 30.06.2012, was cancelled and while adjusting the security deposit made by the said firm, the later incorporated company i.e. 'C.S. Infraconstruction Ltd.' was registered as 'A' class contractor with the PWD until 30.06.2012. The certificate so issued by the PWD has been placed on record as Annexure-12 and its contents are also reproduced hereunder for ready reference:
^^iathdj.k izek.k&i= esllZ Nk='kfDr dULVz~D'ku dEiuh ¼lksy izks0&Jh mek'kadj flag½ xzke o iksLV&[kuoj] ftyk&cfy;k dk yksd fuekZ.k foHkkx] m0iz0 esa ekxZ dk;Z gsrq Js.kh ^,^ dh Bsdsnkjh esa iathdj.k bl dk;kZy; ds i=kad&1694,[email protected],e0&[email protected]] fnukad&-16-03-0207 }kjk rFkk uohuhdj.k i=kad&7092-,[email protected] lkekU; [email protected] ,e0&[email protected]] fn0&-10-09-2009- }kjk fnukad& 30-06-2012 rd ds fy, izksijkbVjf'ki esa fd;k x;k FkkA Bsdsnkj }kjk izksijkbVjf'ki iathdj.k dks lh0,l0 bUQzk dkULV~zD'ku fy0] xzke o iksLV&[kuoj] ftyk&cfy;k ds uke ls ifjofrZr fd;s tkus ,oa iwoZ esa tek dh x;h tekurh /kujkf'k dks lek;ksftr djrs gq, ekxZ ^,^ Js.kh esa iathdj.k fd;s tkus dk vuqjks/k fd;k x;k gSA vr% Bsdsnkj }kjk izLrqr vkosnu i= ij fopkjksijkUr bl dk;kZy; ds i=kad& 7092-,[email protected] lkekU; [email protected],e0&[email protected] fn0&-10-09-2009 }kjk fnukad& 30-06-2012 rd fd;s x;s mDr [email protected] uohuhdj.k dks fujLr fd;k tkrk gS rFkk iwoZ esa tek tekurh /kujkf'k :0&5-00 yk[k ¼:0&ikap yk[k½ dks lek;ksftr djrs gq, vc lh0,l0 bUQzk dkULV~zD'ku fy0] xzke o iksLV&[kuoj] ftyk&cfy;k dk yksd fuekZ.k foHkkx] m0 iz0 esa ekxZ dk;Z gsrq Js.kh ^,^ esa iathdj.k fn0&30-6-2012 rd ds fy, fd;k tkrk gSA la'kksf/kr iathdj.k fu;ekoyh fnukad&12-09-2002 ,oa 'kklukns'k fnukad& 28-07-2008 ds vuqlkj vkSipkfjdrk,a iw.kZ gSaA ;g izek.k&i= yksd fuekZ.k foHkkx] m0iz0 esa ekU; gksxk] rFkk bldh ekU;rk fnukad 30-06-2012 ds ckn] Lor% lekIr le>h tk;sxhA^^ With reference to the aforesaid facts, the petitioner filed his reply and objections before the Lokayukta on 30.01.2014 (Annexure-10). The petitioner, inter alia, urged that Section 9A of the Act of 1951 was not applicable in his case; and that there was no contract subsisting between himself and the Government at any relevant stage, whether at the time of his filing nomination or after his election as MLA. The petitioner further asserted that the contract works stated in the list and details had not been awarded to him and infact, they related to company C. S. Infraconstruction Company Ltd. The petitioner asserted that award of contract to the said company could not be considered as the contract awarded to him in his personal capacity. The petitioner also referred to several decisions including that of the Hon'ble Supreme Court in the case of Mangi Lal vs K. R. Pawar & Anr, AIR 1971 SC 1943. The petitioner also made a request to the learned Lokayukta to consider in the first instance, his preliminary objections regarding 'applicability of Article 191 (1) of the Constitution of India and Section 9A of the Act of 1951 under Section 10(1)(a) of the Act of 1975'.
After receiving of the reply/objections from the petitioner, the learned Lokayukta proceeded to make his report dated 18.02.2014 which has been seriously questioned by the petitioner in this case. The learned Lokayukta in his report specifically indicated that the complaint had been registered on the limited question as to whether the petitioner had incurred disqualification under Article 191 (1) (e) of the Constitution of India read with Section 9A of the Act of 1951 for his having executed the contract works under the PWD of the Government while remaining as MLA. The learned Lokayukta referred to and indicated the factual aspects essentially to the effect that several contract works were continuing at the time of election of the petitioner as MLA in the name of his firm 'Chhatra Shakti Construction Company' with the petitioner as sole proprietor; and that several payments were made in the name of said firm 'M/s Chhatra Shakti Construction Company' and were deposited in the said firm's bank account. Suffice it to notice at present that on the given facts, the Lokayukta stated his satisfaction that the question of disqualification of the petitioner had indeed arisen for which, His Excellency the Governor was competent to make a declaration under Article 192 of the Constitution of India.
It may be pointed out at this stage that during the course of such consideration of the case of the present petitioner, the learned Lokayukta noticed from the documents of the PWD that another MLA Sri Bajrang Bahadur Singh, who too was elected on 06.03.2012 from a different constituency, had also been working as a contractor with the PWD and he had indeed obtained contract works even after being elected as MLA. The learned Lokayukta, again, stated his satisfaction that in relation to said Sri Bajrang Bahadur Singh, the question of disqualification had arisen. The learned Lokayukta, therefore, recommended that the cases of the petitioner Uma Shankar Singh, as also the said Sri Bajrang Bahadur Singh be referred to the Governor for declaring the decision under Article 192 of the Constitution of India. The relevant concluding passages in the report of the Lokayukta dated 18.02.2014 are being reproduced as under:
"34- Jh mek 'kadj flag us vius tks 3 Li"Vhdj.k layXud&6] 7 o 8 esa nkf[ky fd;s gSa muesa tks fof/kd rdZ j[ks x;s gSa mu ij lgefr ;k vlgefr gksus dh dksbZ vko';drk gh ugha jg x;hA tc mi;qZDr bafxr rF;ksa ls ;g Li"V gks x;k fd mi;qZDr 37 dk;Z tuin bykgkckn fejtkiqj] lksuHknz vkSj cfy;k esa ,sls vHkh py jgs gSa ftuds vuqcU/k eS0 Nk= 'kfDr dULV~zD'ku ¼lksy izksijkbVj mek 'kadj flag½ ds uke gSA vuqcU/k ,d i{kh;] i{kdkjksa dh lgefr ls ;k fdlh Hkh mu 4 dkj.kksa ls lekIr ugha gq, gSa ftudk mYys[k Jh mek 'kadj flag us vius mRrj fnukad 10&02&2014 esa fn;k gSA Jh mek 'kadj flag us vius mRrj esa dgk gS fd fuEu 4 ifjfLFkfr;ksa esa lafonk lekIr ekuh tkrh gSa %& ¼1½ By performance, ¼2½ By Express Agreement, ¼3½ Under the Doctrine of Frustration, and ¼4½ By breach 35- mi;qZDr pkjksa esa ls dksbZ Hkh ifjfLFkfr ,slh lkeus ugha vk;h gS ftlls bl fu"d"kZzZ ij igqWapk tk lds fd eS0 Nk= 'kfDr dUlV~zD'ku dEiuh ¼lksy izksijkbVj mek 'kadj flag½ ds mi;qZDr 37 dk;ksaZ ds vuqcU/k mi;qZDr fdlh ifjfLFkfr esa }kjk lekIr le>s tk; D;ksafd mi;qZDr leLr dk;Z izxfr ij gSA ml QeZ }kjk fd;s tk jgs gSa ftlds lksy izksijkbVj Jh mek 'kadj flag vfHkys[ksa esa gSa] fuekZ.k dk;Z py jgk gS] Hkqxrku psd ls Nk= 'kfDr dULV~D'ku dEiuh ds uke gks jgs gSa vkSj blh QeZ ds [kkrksa esa tek Hkh gks jgs gSa ftudk lapkyu Jh mek 'kadj flag gh djrs gSA bu dk;ksaZ esa ,slh fLFkfr ugha ik;h x;h fd dsoy Hkqxrku ckdh gks vkSj dk;Z iw.kZ gks pqds gksaA 36- mi;qZDr lHkh ifjfLFkfr;ksa vkSj lk{;ksa ds gksrs gq, Hkh eSa ,slk dksbZ fu"kd"kZ viuh laLrqfr esa ugha ns jgk gWawa fd Jh mek 'kadj flag tks orZeku fo/kku lHkk esa fnukad 6&3&2012 dks fuokZfpr ?kksf"kr gq, gSa og lafo/kku ds vuqPNsn 191 ¼1½ ¼d½ lifBr /kkjk 9&d tu izfrfuf/kRo vf/kfu;e] 1951 ds vUrxZr fo/kku lHkk ds lnL; gksus ds fy, vugZ gks x;s D;ksafd lafo/kku ds vuqPNsn 192 ds vuqlkj mDr iz'u ij fu.kZ; Hkkjr ds fuokZpu vk;qDr ds ijke'kZ ls mRrj izns'k ds egkefge Jh jkT;iky }kjk mn~?kksf"kr fd;k tk;sxkA 37- mi;qZDr ds vfrfjDr yksd fuekZ.k foHkkx ds vfHkys[kksa dh tkWap ds nkSjku ;g rF; Hkh lkeus vk x;k fd orZeku fo/kku lHkk ds ,d vU; fo/kk;d Jh ctjax cgknqj flag fnukad 6&3&2012 dks mRrj izns'k fo/kku lHkk ds lnL; fuokZfpr gksus ds ckn tuin xksj[kiqj esa fnukad 6&3&2012 ds ckn fuekZ.k dk;Z dk ,d Bsdk izkIr fd;s gSa ftldk Vs.Mj fnukad 8&1&2013 dks gqvk gSA Jh ctjax cgknqj flag fnukad 6&3&2012 ls iwoZ Hkh fo/kk;d Fks vkSj 3 dk;ksZa ds Bsds yksd fuekZ.k foHkkx ls xksj[kiqj o`Rr esa izkIr fd;s FksA pWawfd Jh ctjax cgknqj flag Hkh fo/kk;d gksrs gq, yksd fuekZ.k foHkkx esa iathd~r pys vk jgs Fks vkSj fo/kk;d cuus ds ckn Hkh fuekZ.k dk;Z ds Bsdksa dk dk;Z xksj[kiqj esa dj jgs gSaA blfy, fof/k ds og micU/k tks Jh mek 'kadj flag ds laca/k esa ykxw gksrs gSa ogh Jh ctjax cgknqj flag ds laca/k esa Hkh ykxw gksrs gSaA ;|fi Jh ctjax cgknqj flag dk jftLV~zs'ku fnukad 26&12&2013 dks dfri; vfu;ferrkvksa ds dkj.k fujLr gks pqdk gS ijUrq fnukad 6&3&2012 dks fo/kk;d fuokZfpr gksus ds ckn yksd fuekZ.k foHkkx ds fuekZ.k dk;Z vkoafVr gksuk mudh fo/kku lHkk dh lnL;rk ds laca/k esa vugrkZ dk iz'u mRiUu djrk gSA Jh ctjax cgknqj }kjk fd;s x;s 4 dk;ksaZ dh vuqcU/kksa dh dqy ykxr #i;s 6]59]69]093-90 gSA 38- Jh ctjax cgknqj flag dks xksj[kiqj ls vkoafVr dk;ksZa dk pkVZ layXud&16 gSA mUgksaus tks mRrj izsf"kr fd;k gS og layXud 8 gSA Jh ctjax cgknqj flag us vius mRrj esa yksd fuekZ.k foHkkx ds Bsds ysus ds laca/k esa dksbZ mRrj ugha fn;k dsoy bruk dguk i;kZIr le>k gS fd fo/kk;d ij yksd fuekZ.k foHkkx esa Bsdsnkj ds :i esa iathd`r djkus ds fy, dksbZ jksd ugha gSA pWawwfd leku rF;ksa ij Jh mek 'kadj flag dh fo/kk;d ds :i esa vugrkZ dk iz'u lafo/kku ds vuqPNsn 192 ds vUrxZr mRrj izns'k ds egkefge Jh jkT;iky dks lanfHkZr fd;k tkuk gS blfy, leku rF;ksa ds vk/kkj ij mPpre U;k;ky; ds mi;qZDr bafxr fu.kZ; dks ns[krs gq, ifjokn nkf[ky gksus dh ck/;rk ugha ekywe gksrhA ;g iz'u fdlh Hkh O;fDr ds }kjk egkefge Jh jkT;iky dks lanfHkZr fd;k tk ldrk gSA 39- mi;qZDr bafxr 37 dk;ksaZ ¼vuqcU/kksa dh ykxr #i;s 3]93]91]24][email protected]&½ esa dksbZ Hkh dk;Z ,slk ugha gS] ftldk Vs.Mj lh0,l0 bUQzkdULVz~D'ku dEiuh fyfeVsM us fd;k gks vkSj vuqcU/k Hkh dEiuh ds lkFk gqvk gksA D;ksafd dEiuh jftLVz~kj ds dk;kZy; esa iathd`r fdlh Hkh dEiuh ds }kjk fy;s x;s Bsdksa ds izdj.k egkefge Jh jkT;iky ds fu.kZ; ds fy, lanfHkZr fd;s tkus dk vk/kkj miyC/k ugha gS Hkys gh Jh mek 'kadj flag eS0 lh0,l0 bUQzkdULVz~D'ku dEiuh ds igys v/;{k] izcU/k funs'kd jgs gksa vkSj ckn esa vius dks bl dEiuh ls vyx dj fy;k gksA dsoy Nk= 'kfDr dULVz~D'ku dEiuh lksy izksijkbVj mek 'kadj flag ds }kjk muds fo/kk;d cuus ds ckn fuekZ.k dk;Z ds Bsdksa ds dk;Z djrs jgus ds vk/kkj ij gh mudk fo/kk;d ds :i esa vugrkZ dk iz'u mRiUu gqvk gSA 40- mi;qZDr ds n`f"Vxr esjk ;g lek/kku gks x;k gS fd mRrj izns'k ds orZeku fo/kku lHkk ds tuin cfy;k ds jlM+k fuokZpu {ks= ds fuokZfpr fo/kk;d Jh mek 'kadj flag vkSj tuin egjktxat ds QjsUnk fuokZpu {ks= ds fo/kk;d Jh ctjax cgknqj flag dh fo/kku lHkk dh lnL;rk ls lafo/kku ds vuqPNsn 191 ¼1½ ¼d½ lifBr /kkjk 9&d tu izfrfuf/kRo vf/kfu;e] 1951 ds vUrxZr ,d ,slk iz'u mRiUu gqvk gS ftlds laca/k esa fu.kZ; mn~?kksf"kr djus ds fy, vuqPNsn 192 ds vUrxZr izns'k ds egkefge Jh jkT;iky l{ke gSa tks mPpre U;k;ky; ds fu.kZ; dks ns[krs gq, vfr'kh?kz Hkkjr ljdkj ds fuokZpu vk;qDr ls ijke'kZ djds vius fu.kZ; dks mn~?kksf"kr dj ldrs gSaA 41- mi;qZDr lek/kku ds n`f"Vxr eSa fuEu laLrqfr djrk gwWa %& ¼1½ mRrj izns'k orZeku fo/kku lHkk ds fuokZfpr lnL; Jh mek 'kadj flag dk Hkkjr ds lafo/kku ds vuqPNsn 191 ¼1½ ¼d½ lifBr /kkjk 9&d tu izfrfuf/kRo vf/kfu;e] 1951 ds vUrxZr fo/kk;d ds :i esa vugrkZ dk iz'u lafo/kku ds vuqPNsn 192 ds vUrxZr mRrj izns'k ds egkefge Jh jkT;iky dks vfr'kh?kz fof/kor fu.kZ; mn~?kksf"kr djus ds fy, lanfHkZr dj fn;k tk;A ¼2½ vugrkZ ds rF; leku izd`fr ds gksus ds dkj.k tuin egjktxat ds QjsUnk fo/kku lHkk {ks= esa fuokZfpr Jh ctjax cgknqj flag dh fo/kk;d ds :i esa Hkkjr ds lafo/kku ds vuqPNsn 191 ¼1½ ¼d½ lifBr /kkjk 9&d tu izfrfuf/kRo vf/kfu;e] 1951 ds vUrxZr izns'k ds egkefge Jh jkT;iky dks lafo/kku ds vuqPNsn 192 ds vUrxZr fu.kZ; mn~?kksf"kr djus ds fy, lanfHkZr dj fn;k tk;A ¼3½ mi;qZDr laLrqfr ij dh x;h dk;Zokgh ls ,d ekg esa voxr djk;k tk;A"
It appears that on the basis of the report so made by the Lokayukta, the matter was placed before His Excellency the Governor of Uttar Pradesh, who made a reference on 03.04.1014 to the Election Commission of India for its opinion, as required by Article 192(2) of the Constitution of India.
On the reference so made, the Election Commission of India proceeded to consider the cases of the petitioner Uma Shankar Singh and the said other MLA Sri Bajrang Bahadur Singh together and stated its common opinion in Reference Case No. 2 of 2014 on 30.12.2014. The Election Commission, in its opinion stated to the Governor, in the first place took note of the factual matrix as emanating from the proceedings of the Lokayukta and also noticed the distinction in the case of present petitioner Sri Uma Shankar Singh and that of the said other MLA Sri Bajrang Bahadur Singh that as regards the petitioner, there was no finding of his having obtained new contract after his election, whereas in respect of Sri Bajrang Bahadur Singh, the Lokayukta report clearly stated that he got a contract after his election. The relevant passages in the Election Commission's opinion, as occurring in paragraphs 3 to 6, could be taken note of as under:
"3. Both the aforesaid two MLAs, i.e., Shri Uma Shankar Singh and Bajrang Bahadur Singh, contested the election to the Legislative Assembly of Uttar Pradesh, 2012. They were declared elected on 6th March, 2012. According to Lokayukta's report, since 2009 (i.e. prior to and after his election) Shri Uma Shankar Singh as sole Proprietor of M/s Chhatra Shakti Construction Company, a partnership firm, and as Managing Director of M/s C.S. Infraconstruction Co. Pvt. Ltd. was involved in taking Govt. contracts in different regions of Uttar Pradesh. In the enquiry report, though the Lok Ayukt has not categorically mentioned as to whether Shri Uma Shankar got any new contract after his election, but he has noted that even after his election, Shri Singh's company kept performing their contracts taken earlier and also kept receiving payment therefor. In respect of Shri Bajrang Bahadur Singh, Lok Ayukt report inter-alia mentions that, during the enquiry process in the case of Shri Uma Shankar Singh, a new fact came before him that another MLA Shri Bajarang Bahadur Singh, after his election, got contract and in his case also the question of same disqualification under Article 191(1)(e) read with section 9A of the Representation of the People Act, 1951 arose and accordingly he was also issued notice by the Lok Ayukt.
4. The Lok Ayukt stated in his report that Shri Uma Shankar Singh and Shri Bajarang Singh are liable to be disqualified under Article 191 read with Section 9A of the Representation of the People Act, 1951 and therefore, he recommended that the matter may be referred to the Governor under Article 192 for taking decision on the question of their disqualification under Article 191 of the Constitution.
5. Accordingly, the Hon'ble Governor, Uttar Pradesh referred the matter to the Commission for its opinion under Article 192(2) of the Constitution of India on 3rd April, 2014.
6. In respect of Shri Uma Shankar Singh, in the enquiry report of Lok Ayukt, Uttar Pradesh, there is no finding that Shri Uma Shankar has got any new contract after his election. Instead, it is stated that even after his election, Shri Singh's company performed contracts taken earlier and was receiving payment therefor. In respect of Shri Bajarang Bahadur Singh, the Lok Ayukt report clearly states that he has got a contract after his election."
A comprehensive look at the opinion stated by the Election Commission makes it clear that the observations as made by the Lokayukta in his report have been referred by the Election Commission as being the 'findings' of Lokayukta and infact, paragraphs 25 to 35 of the report have been reproduced as such. On its part, the Election Commission had sought information from the Government of Uttar Pradesh under its communications dated 19.06.2014 and 18.07.2014 regarding the contracts awarded and the works executed by the said M/s Chhatra Shakti Construction Company. In response, the Election Commission received the communication dated 01.09.2014 from the Chief Engineer PWD to the effect that no contract was awarded to the petitioner in his individual capacity as a contractor after his election on 06.03.2012 but 20 contracts had been awarded to CS Infraconstruction Limited, the company said to have been formed by converting the said partnership firm on 10.11.2009; and the details of these 20 contracts were also stated.
After reproducing paragraphs 25 to 35 of the Lokayukta report, the Election Commission proceeded to state its impression and deductions in paragraphs 20 to 22 of the opinion, which are reproduced as under:
"20. The perusal of the above findings of the learned Lok Ayukt will show that though no contract has been awarded to the partnership firm M/s. Chhatra Shakti Construction Company after 6th March, 2012, the date of election of the respondent No.1 to the Uttar Pradesh Legislative Assembly, several of the contracts entered into between the State Government and M/s. Chhatra Shakti Constructions Company, the partnership firm of which the respondent No.1 was the sole proprietor, were still subsisting even after the said date of 6th March, 2012, i.e., the date on which he got elected as an MLA. The learned Lok Ayukt has observed that works continued to be performed in respect of those subsisting contracts and payments for the works done by the said partnership firm continued to be made on various dates after 6th March, 2012 and the last such payment was made on 5th January, 2014 and the same were duly received and acknowledged by the said partnership firm.
21. Apart from the above, the Commission also obtained vide its letters dated 19th June, 2014 and and 18th July, 2014, information from the State Government of Uttar Pradesh regarding the contracts awarded, if any, by the State Government for execution of any works by the said M/s. Chhatra Shakti Construction Company. In reply thereto, the Chief Engineer, Development and Head of the Division, PWD, Uttar Pradesh, vide her letter dated 1st September, 2014, has intimated the Commission that whereas no contract was awarded by the PWD Department to the respondent No.1 in his individual capacity as a contractor after his election on 6th March, 2012, twenty (20) contracts have been awarded by that department to the CS Infra Construction Limited, the company said to have been formed by converting the said partnership firm on 10th November, 2009, after the said date of 6th March, 2012. The details of these contracts have also been furnished which all show that these contracts are for the execution of works undertaken by the Government of Uttar Pradesh relating to widening and strengthening of various roads and bridges, etc. in various divisions of the State.
22. From the aforesaid analysis of the findings of the learned Lok Ayukt and the information furnished by the State Government, it can be deduced that the contracts under reference awarded by the State Government to M/s. Chhatra Shakti Construction Company and the CS Infra Construction Company Limited can be classified into two categories:-
(i) Twenty (20) contracts were awarded after 6th March, 2012 to the CS Infra Construction Company Limited, apart from certain other contracts given to that Company prior to 6th March, 2012 and which were subsisting even after 6th March, 2012;
(ii) Thirty Seven (37) contracts were awarded to the partnership firm, M/s. Chhatra Shakti Construction Company before 6th March, 2012 and many of them were still subsisting even after the date (6th March, 2012) and running payments in respects of the works performed thereunder were continued to be made by the Sate Government and received by the said partnership firm, at least, right upto 5th January, 2014. Out of these, eleven contracts were awarded to the partnership firm even after 10th November, 2009, when the partnership firm was converted into a company."
The Election Commission, thereafter, proceeded to refer to the statutory provisions and the decision of the Hon'ble Supreme Court in case of Prakash Khandre v. Dr. Vijaya Kumar Khandre and others, AIR 2002 SC 2345. Thereafter, the Election Commission concluded that none of the contracts awarded by the State of U.P. to C.S. Infraconstruction Company Ltd., whether before election of the petitioner as MLA or thereafter, attracted the provisions of Section 9A of the Act merely on the ground that he was Chairman and Managing Director of the Company. This conclusion, as recorded in paragraph 28 of the opinion could also be taken note of as under:
"28. In view of the above settled position of law, it cannot be said that any of the contracts awarded by the PWD of the Government of Uttar Pradesh to the CS Infra Construction Company Limited at any time, either before the election of respondent No. 1 as MLA on 6th March, 2012, or thereafter, attracts the provisions of section 9A of the 1951-Act on the ground that the respondent No. 1 was the Chairman and Managing Director of the said company at the time of the said contracts being entered into between the State Government and the said company."
However, thereafter, the Election Commission proceeded to consider the question arising from the execution of the work of the contracts entered into between the State Government and the said M/s Chhatra Shakti Construction Company and, again, referred to the report of the Lokayukta as could be noticed in the following passage of the opinion:-
"29. Now, we come to the question of the contracts entered into between the State Government and M/s. Chhatra Shakti Construction Company, the partnership firm of which the respondent No. 1 was admittedly the main partner or sole proprietor. The communication dated 1st September, 2014, of the Chief Engineer, Development and Head of the Division, PWD, Uttar Pradesh Government, shows that the State Government has not awarded any contract to the said M/s. Chhatra Shakti Construction Company, after 6th March, 2012 when respondent No.1 became an MLA. The learned Lok Ayukt, in his report dated 18th February, 2014, has also not found any evidence that any contract was awarded by the State Government to the above partnership firm after the election of respondent No.1 to the Uttar Pradesh Legislative Assembly on 6th March, 2012. His finding is to the effect that though no contract was awarded by the State Government to the above partnership firm on or after 6th March, 2012, several contracts, referred to in paras 26 to 35 of his report dated 18th February, 2014, which were entered into between the State Government and the above partnership firm prior to 6th March, 2012, continued to subsist even after 6th March, 2012, as the work in respect of those contracts was continued to be performed after that date and running bills were submitted to the Government and payments received in respect thereof by the partnership firm. As per the report of the learned Lok Ayukt, the last such running payment to the tune of Rs.89,81,987/- in respect of one such subsisting contract was made by the State Government to the partnership firm on 5th January, 2014. The question thus raised by the learned Lok Ayukt is whether the subsistence of the abovementioned contracts though entered into between the above named partnership firm and the State Government prior to the election of respondent No.1 as an MLA on 6th March, 2012, but continuing to subsist and being performed by the partnership firm even after 6th March, 2012, would disqualify respondent No.1 from being a Member of the Uttar Pradesh Legislative Assembly. The learned Lok Ayukt has not recorded any finding or expressed any view on the above question in the Commission's opinion, rightly so - and has referred that question to the Governor of Uttar Pradesh under clause (1) of Article 192. The Governor, in turn, has referred that question to the Commission for its opinion under Article 192 (2) of the Constitution."
The Election Commission, thereafter, reproduced paragraph 40 of the Lokayukta's report and then, referred to various other passages of the Lokayukta's report and the evidence collected by the Lokayukta. The Election Commission, then, proceeded to find that even after 06.03.2012, the said partnership firm M/s Chhatra Shakti Construction Company continued to execute the contract, to submit running bills, and further to receive payments in its own name. The Election Commission said, "32. It is evident from the above factual information furnished by the concerned government officials of the Public Works Department of the Government of Uttar Pradesh, on the basis of the original official records in their possession, that at least 37 contracts awarded by various PWD Divisions of Allahabad, Balia, Mirzapur and Sohanbadra to M/s. Chhatra Shakti Construction Company, partnership firm, were subsisting when respondent No.1 got elected to the Uttar Pradesh Legislative Assembly and these contracts continued to subsist even after his election on 6th March, 2012 and the works were continued to be executed in the performance of those contracts; that the said partnership firm was submitting running bills from time to time (after 6th March, 2012) in its own name for the works executed by the firm in respect of those contracts and the firm also continued to receive payments in its own name in respect of those running bills.
33. Now, the Commission has to consider the principal issue whether the aforesaid 37 contracts subsisting even after the election of respondent No.1, as an MLA of 6th March, 2012, and continued to be executed by M/s. Chhatra Shakti Construction Company, (partnership firm of respondent No.1) would attract the provisions of section 9A of the 1951-Act. It is settled law by the Supreme Court that a contract with a partnership firm binds all its partners and that a contract of the nature mentioned in section 9A by the appropriate government with a partnership firm (as distinguished from a limited company), would disqualify all the partners of a partnership firm for being chosen as, and for being, Members of Parliament and State Legislatures (see decisions of the Supreme Court in Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy AIR 1969 SC 447; D. Gopallareddy Vs. S Bai Talpalikar 39 ELR 305 Supreme Court, etc.). In this cae, respondent No.1 is the sole proprietor of the partnership firm, M/s. Chhatra Shakti Construction Company.
34. The provisions of section 9A of the 1951-Act have been reproduced in para 23 hereinabove. The historical background relating to the incorporation of the provisions of the said section 9A in the 1951-Act and the amendments made thereto from time to time as enunciated by the Supreme Court in Prakash Khandre Vs. Dr. Vijaya Kumar Khandre and Others (AIR 2002 SC 2345) have also been quoted in extenso in para 24 hereinabove. Explaining the underlying intention of the provisions of section 9A, the Supreme Court observed in N.Satyanathan Vs. K. Subramanyam, AIR 1955 SC 459 that the provision is meant to ensure that there is no conflict between public duty and private interests. The Supreme Court further observed in Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy (Supra) that it is of the essence of the law of elections that candidates must be free to perform their duties without any personal motives being attributed to them and that after election they may not be in a position to get concessions from the government in the performance of their contracts. That they may not do so is not relevant, as with the possibility of being there, the law regards it necessary to keep them out of elections altogether.
35. The crux of the disqualificatory provision thus is that a person incurs disqualification on entering into a contract of the nature mentioned therein with the appropriate government and continues to be disqualified, for so long as that contract subsists. The meaning of 'subsist' as per the Oxford Dectionary is 'exist, continue to exist, remain in force or effect'.
36. Having regard to the above provisions of law, there cannot be any doubt that the aforementioned subsisting contracts entered into by M/s. Chhatra Shakti Construction Company (partnership firm of respondent No.1) with the Government of Uttar Pradesh for the execution of the works of strengthening and broadening of various roads in Allahabad, Balia, Mirzapur and Sohanbadra Divisions would attract the provisions of section 9A of the Representation of the People Act, 1951, insofar as respondent No.1 is concerned. The Commission is, therefore, of the considered opinion that respondent No.1 (Shri Uma Shankar Singh, MLA) is disqualified for being, i.e., for continuing as, Member of Uttar Pradesh Legislative Assembly by reason of his subsisting contracts with the Government of Uttar Pradesh within the meaning of the said section 9A."
The Election Commission, thereafter, considered the case of the other MLA Sri Bajrang Bahadur Singh and specifically found that the said MLA had continued as a registered contractor even after his election and infact, obtained atleast 4 contracts after his election, first of which was obtained on 15.10.1992. The Election Commission summed up its opinion in relation to the two MLAs in the following:
"To sum-up, the opinion of the Election Commission of India under clause (2) of Article 192 of the Constitution, on the reference dated 3rd April, 2014, received from the Governor of Uttar Pradesh, raising the question of disqualification (1) Shri Uma Shankar Singh, MLA, and (2) Shri Bajrang Bahadur Singh, MLA, is as follows:-
(i) Respondent No.1 (Shri Uma Shankar Singh, MLA) incurred disqualified under Article 191(1)(e) of the Constitution of India read with section 9A of the Representation of the People Act, 1951 for being, i.e., for continuing as, a Member of the Uttar Pradesh Legislative Assembly by reason of his having subsisting constracts with the Government of Uttar Pradesh even after his election on 6th March, 2012;
(ii) Respondent No.2 (Shri Bajrang Bahadur Singh, MLA), incurred disqualification under Section 9A of the Representation of the People Act, 1951, on 15th October, 2012, for entering into a contract with the Government of Uttar Pradesh and was thus disqualified, for being, i.e., for continuing as, a Member of the Uttar Pradesh Legislative Assembly from that day (15th October, 2012) onwards."
The opinion of Election Commission was placed before His Excellency the Governor, who afforded an opportunity of hearing to both the MLAs involved i.e., the petitioner and said Sri Bajrang Bahadur Singh. In relation to the petitioner, His Excellency the Governor concluded that he had incurred disqualification under Article 191 (1) (e) of the Constitution of India read with Section 9A of the Act of 1951 for having continued to execute the work of contracts obtained from the Government of U.P. even after his election as MLA. The Governor concluded in relation to said Sri Bajrang Bahadur Singh that he had incurred disqualification for having obtained a contract from the Government of U.P. even after his election as MLA on 15.10.2012. The Hon'ble Governor, therefore, declared that the petitioner Uma Shankar Singh had become disqualified from the membership of the U.P. Legislative Assembly from 06.03.2012. In relation to said Sri Bajrang Bahadur Singh, the Governor declared that he had become so disqualified from 15.10.2012.
THE PROCEEDINGS AND INTERIM ORDER IN THIS PETITION We may indicate that this petition, filed on 16.2.2015, was considered by a Coordinate Bench initially on 23.02.2015. The submissions on behalf of the petitioner were noted that the proceedings before the Lokayukta were entirely incompetent. The submissions made on behalf of Lokayukta were also noted that the Governor in this matter had exercised exclusive jurisdiction under Article 192 (1) of the Constitution of India and the Court had no jurisdiction in the matter. This Court found that the matter required consideration and hence, the petition was admitted for consideration; however, the prayer of the petitioner for interim relief was declined. Thereafter, the petitioner approached the Hon'ble Apex Court in the petition for Special Leave to Appeal (C) No.7608 of 2015 wherein the Hon'ble Supreme Court, in its order dated 12.03.2015, stayed the notification dated 10.03.2015 issued by the Election Commission of India for holding fresh elections for the constituency in question while expecting expeditious proceedings in the present petition. The aforesaid order of the Hon'ble Supreme Court was taken note of by the Coordinate Bench on 16.03.2015 and the matter was posted for hearing.
In the meantime, the case of the said MLA Shri Bajrang Bahadur Singh was considered and finally decided by the Hon'ble Supreme Court in its judgment dated 9.4.2015. In the said judgment, apart from other aspects, the Hon'ble Supreme Court also considered the necessity of reconciling the two different obligations, viz., on one hand of the High Court to adjudicate the dispute regarding the legality of the Governor's decision and on the other of the Commission to hold the election within six months from the date of occurrence of vacancy per Section 151A of the Act of 1951; and specifically held that the proceedings in such petitions are required to be taken up with expedition and for that matter, a person aggrieved by the orders of the Hon'ble Governor may approach the High Court within a period of eight weeks from the date of decision and the High Court should dispose of the matter within a period of eight weeks from the date of initiation so as to leave another eight weeks of time for the Commission to comply with the obligation emanating from Section 151A of the Act of 1951. A copy of the said judgment was filed on behalf of the petitioner in this petition on 16.4.2015 whereupon, the Hon'ble Chief Justice directed placing of the matter for expeditious disposal.
Though strictly speaking, the time-frame expected in Bajrang Bahadur Singh's case could not be maintained in this case because the petition had been filed on 16.02.2015 but, in keeping with the requirement of expeditious proceedings, this petition was placed for priority hearing. A Coordinate Bench took up the matter on 22.4.2015 when amendment of cause title with deletion of the name of His Excellency the Governor in the array of parties with substitution of Principal Secretary to the Hon'ble Governor was allowed. On 23.04.2015, time was granted to the respondent No. 2 to file counter within two days and parties were directed to complete all the pleadings. On and from 27.04.2015, it appears that though the matter was posted for priority hearing and few submissions were made before a Coordinate Bench but effective hearing could not commence. Thereafter, hearing commenced before us on 7.5.2015 and the matter was heard on day-to-day basis, until conclusion of arguments on 15.5.2015 so that the requirements expected in Bajrang Bahadur Singh's case, of leaving sufficient time of about eight weeks with the Election Commission for holding of fresh elections (in case of Governor's decision being sustained) could be complied with.
It may be pointed out that during the course of submissions, the learned Counsel for the petitioner has placed on record the notice dated 19.06.2014 issued by the Election Commission of India to the petitioner and the said document having co-relation with the submissions made in the matter and for the learned Counsel for the respondents having no objection, was taken on record. Further, during the course of arguments, learned counsel for the respondent No.5 filed a supplementary affidavit stating the date of administration of oath to the petitioner as Member of Legislative Assembly (MLA). The same was also taken on record with the learned counsel for the petitioner having no objection thereto.
The case of Shri Bajrang Bahadur Singh Before dealing with the rival submissions made in the present case, appropriate does it appear to refer to the case of Shri Bajrang Bahadur Singh that has been decided by Hon'ble Apex Court on 09.04.2015.
As noticed, the initial complaint of the respondent No.5 before the Lokayukta had only been against the present petitioner and that too before he was elected as MLA. Later on, the respondent No.5 filed affidavits with the allegations against the petitioner and with the assertions that he now stood covered in the definition of Public Servant under the Act of 1975. The Lokayukta was of the view that the question of disqualification of the petitioner had arisen and issued him the notice on 01.01.2014. It had been during the course of consideration of the case of the present petitioner that the material surfaced before the Lokayukta to the effect that apart from the petitioner, the said MLA Shri Bajrang Bahadur Singh had also been engaged in contract work with the Government. In relation to the said Shri Bajrang Bahadur Singh, it was noticed that he had continued to work as contractor even after his election as MLA and obtained the contracts even after election. The Election Commission of India stated the opinion against the said Bajrang Bahadur Singh and he too was held disqualified but with effect from 15.10.2012, the date of his taking first contract after election.
The said Shri Bajrang Bahadur Singh also questioned the order passed against him by way of a separate writ petition in this Court. In his writ petition, an interim order was passed by this Court on 20.3.2015 staying the fresh election process to the constituency represented by him. The Election Commission of India filed Special Leave Petition (Civil) No.8850 of 2015 against the interim order so passed by this Court. Ultimately, the Hon'ble Supreme Court withdrew to itself the writ petition filed by the said MLA Bajrang Bahadur Singh and proceeded to dispose of Special Leave Petition (C) No.8850 of 2015 filed by the Election Commission of India and Transfer Case No.60 of 2015 by the common judgment dated 09.04.2015. The decision in Bajrang Bahadur Singh's case need to be noticed for the enunciation of law by Hon'ble Supreme Court in relation to some of the points that have arisen in this matter. However, such aspects shall be referred at the relevant stage while dealing with the related question/s. At the present stage, the said decision need to be referred for the purpose that on the core aspects, the case of the said Bajrang Bahadur Singh stood at a different footing than that of the present petitioner.
It is clear from the factual aspects noted hereinbefore that the observations against the present petitioner, wherefor the Lokayukta made the report against him, had been that the firm of which he was essentially the owner, had continued to execute the contract works even after his election and continued to receive payments for such contracts. The finding against the present petitioner by the Election Commission of India, in its opinion, had been to the same effect (vide paragraph 32 of the Election Commission's opinion); and it was because of such a finding that he was held having incurred disqualification. However, so far the contracts awarded after election as MLA were concerned, in the case of the present petitioner, the findings had been clear and unequivocal to the effect that none of the contracts awarded to C.S. Infraconstruction Company Limited attracted the provisions of Section 9A of the Act of 1951. The Hon'ble Governor too has recorded the conclusion that the petitioner had incurred disqualification for having continued to execute the work of the contracts obtained from the Government. This finding essentially refers to the contracts that had been obtained before election of the petitioner but execution of whose work continued even after his election.
However, so far the said Bajrang Bahadur Singh is concerned, rather indisputable position had been that he obtained contracts from the Government even after having been elected as MLA. The contentions urged on behalf of the said Shri Bajrang Bahadur Singh before the Hon'ble Supreme Court in challenge to the order passed against him had only been that Section 9-A of the Act of 1951 prescribes disqualification for a person seeking to contest an election, but it does not render a legislator disqualified from continuing as such on the ground that he had, subsequent to the election, entered into a contract with the Government. The submission in the alternative by the said MLA before the Hon'ble Supreme Court was that even if he was held to have incurred disqualification, such disqualification ceased to exist the moment he had discharged his obligations arising out of the contracts in question, referred as 'the Culprit Contracts'. The submission was that the Governor could have made a declaration only if the contracts were subsisting and not otherwise.
The Hon'ble Supreme Court proceeded to examine the provisions contained in the Constitution of India concerning the State Legislatures, particularly the provisions contained in Articles 191 and 192 of the Constitution of India. The Hon'ble Supreme Court also examined the provisions contained in the Act of 1951 prescribing disqualification from the Membership of the Legislature and particularly Section 9-A therein. The Hon'ble Supreme Court thereafter referred to the Constitution Bench decision in the case of Election Commission of India versus Saka Venkata Subba Rao [1953 (4) SCR 1144] wherein it was held that Articles 190 (3) and 192 (1) of the Constitution of India applied to the disqualifications to which a member becomes subject after his election and rejected the first contention of the petitioner. The Hon'ble Supreme Court, thereafter, proceeded to consider the question as to whether 'the Culprit Contracts' rendered the said petitioner disqualified from continuing as a Member of Legislative Assembly. The Hon'ble Supreme Court concluded as regards operation of law that upon acquisition of disqualification, a Legislator ceased to be so forthwith; and the cessation of the disqualifying factor could not put him back as Legislator without being elected again.
Apparent it is that the case of the present petitioner stands at different footing on material aspects, particularly when it is noticed that so far the contracts subsequently entered into after election of the present petitioner as MLA are concerned, the Election Commission of India has recorded an unequivocal finding that no question of disqualification arose therefrom because the same were entered into between the Government and a Limited Company, namely, C.S. Infraconstruction Company Ltd. It had been the matter of the allegation against the petitioner that the contracts earlier entered into before his election were continued in the name of firm of which, he had described himself as Proprietor and was at least in the capacity of the person incharge of the business affairs. In Bajrang Bahadur Singh's case, the attempt on the part of the petitioner to suggest before the Supreme Court that Section 9-A does not refer to supervening disqualification, i.e., disqualification later on incurred after election, has been found untenable. Similarly, the suggestion that the Culprit Contracts were not subsisting has also been found to be of no assistance to the said petitioner because an acquired disqualification is not wiped out merely with conclusion of the said contracts. As noticed, the said MLA had indisputably entered into contracts with the Government even after the election and hence, his was a case of direct disqualification per Section 9-A of the Act of 1951 read with Article 191 (1) (e) of the Constitution of India. The factual aspects in the case of the present petitioner are, as noticed, fundamentally different and therefore, the matter of the petitioner cannot be concluded merely on the basis of the decision in Bajrang Bahadur Singh's case.
RIVAL SUBMISSIONS Upon taking up of this matter, the learned Counsel Mr.Anupam Mehrotra appearing for the Lokayukta has raised certain preliminary objections. According to the learned Counsel, the decision as rendered by the Governor under Article 192 of the Constitution of India is of a very special nature and as per the mandate of the Constitution and the decision of the Hon'ble Supreme Court in Brundaban Nayak versus Election Commission of India and another [AIR 1965 SC 1892], such a decision of the Governor is not justiciable and is not open to challenge before this Court. The learned Counsel has also referred to the decisions in the cases of Jyoti Prokosh Mitter v. The Hon'ble Mr. Justice H. K. Bose, Chief Justice of the High Court, Calcutta [AIR 1965 SC 961] and R. Sivasankara Mehta v. Election Commission [AIR 1968 Madras 234 (DB)]. The learned counsel further submitted that the petition is not founded on correct projection of facts and the petitioner has even failed to state complete facts and has failed to implead the person concerned, who has submitted the matter to the Governor for decision under Article 192 of the Constitution of India. The learned counsel yet further submitted that the petition further remains incompetent where the petitioner has made allegations of mala fide against Lokayukta without impleading the person concerned as a party in his individual capacity. The learned Counsel has also suggested that this petition does not relate to any fundamental right of the petitioner and not even a common law right. The Counsel has referred to and relied upon several decisions including that in Jyoti Basu v. Debi Ghosal [AIR 1982 SC 983].
At the outset of his submissions, the learned Senior Counsel Mr. J. N. Mathur candidly submitted that he was to question the legality and propriety of the order passed by the Lokayukta and else, would not press on any averment suggestive of personal allegations against the holder of the office of Lokayukta.
Arguing on merits, the learned Senior Counsel Mr. Mathur made a detailed reference to the provisions of the Act of 1975 and the nature of complaint made by the respondent No.5. The learned Counsel put a scathing attack on the proceedings by the Lokayukta and his report with the submissions that as per the contents of the notice dated 01.01.2014, it was but apparent to the Lokayukta himself that only and the only question of disqualification per Article 191 (1) (e) of Constitution of India and Section 9-A of Act of 1951 had cropped up before him. According to the learned counsel, as soon as the Lokayukta felt that any such question of disqualification of an MLA had arisen, he was required to send the matter to the Governor and could not have dealt with the same at all. The learned Counsel submitted that a specific objection as regards his jurisdiction was raised before the Lokayukta by the petitioner but the learned Lokayukta chose not to deal with the same at all. The learned Counsel further referred to the contents of the report of Lokayukta and submitted that the Lokayukta could have made a report only in relation to the matters cognizable by him and such a report, if to be made against the petitioner, could have only been under Section 12 (3) of the Act of 1975 but, in the impugned report, Lokayukta has suggested about disqualification of the petitioner; and such a matter being of the exclusive jurisdiction of Governor, the Lokayukta's report remains wholly without jurisdiction and is required to be declared nullity and to be quashed altogether.
The learned Counsel further submitted that once the report of Lokayukta goes as being wholly without jurisdiction and nullity, the Election Commission's alleged opinion cannot sustain itself for the Election Commission having not made an independent inquiry or trial. The learned Counsel submitted that the Election Commission only collected one paper as regards particulars of contracts (Annexure - RA3) and then, proceeded solely on Lokayukta's report. Such an approach of the Election Commission, according to the leaned counsel, fell much short of the requirements contemplated and envisaged by law.
The learned Counsel referred in detail to the decision of the Hon'ble Supreme Court in Brundaban Nayak's case (supra) as also the decision in Saka Venkata Subba Rao (supra) and the provisions of Section 146 of the Act of 1951 and submitted that the Governor being required to act on the opinion of the Election Commission; and the matter being of alleged disqualification, when the Election Commission has failed to act as per law, its opinion/report is required to be rejected. The learned Counsel referred to the notice issued by the Election Commission to the petitioner on 19.06.2014 and submitted that the Election Commission proceeded as if there were concluded findings of Lokayukta and then asked the petitioner to submit reply to such alleged findings of Lokayukta. This notice itself, according to the learned Counsel, makes it clear that the Election Commission did not enquire into the matter independently and merely proceeded on the alleged findings of Lokayukta.
The learned Counsel further submitted that the Election Commission has even proceeded to rely on the material, other than the evidence adduced before it inasmuch as the evidence in relation to the execution of work of 37 contracts awarded to M/s Chhatra Shakti Constructions Company was not before the Election Commission and obviously, the observations in that regard have been made only on the basis of the report of the Lokayukta.
The learned Counsel also submitted that in the matter of the present petitioner, neither the Election Commission nor the Hon'ble Governor has examined the relevant question as to whether the present case is of pre-existing disqualification or supervening disqualification. The learned Counsel submitted that the petitioner has been held disqualified with effect from 06.03.2012, i.e., the date of election, although it has nowhere been specified as to how this date has been chosen at all?
The learned Counsel has made elaborate submissions on the factual aspects in order to persuade us that the petitioner cannot be said to have incurred any disqualification in this matter. The learned counsel submitted that in the matter as regards 37 contracts, that had been entered into before the election of the petitioner, there had been sufficient explanation and that included the fact that so far the petitioner's firm was concerned, it had been incorporated as a company with effect from 10.11.2009 under Chapter IX of the Companies Act, 1956. The learned Counsel would refer to Section 35 of the Companies Act, 1956 to submit that the Registration Certificate issued by the Registrar of Companies is conclusive of the matters related with incorporation and its legal effect cannot be ignored.
It has been submitted that the petitioner had sufficiently explained the reasons for which the cheques were drawn in the name of erstwhile firm; and had also maintained that such cheques were only deposited in the company's account but these and other relevant factual aspects have not been considered at all by the Election Commission and by the Governor.
The learned Counsel for the petitioner has referred to the decision of the Supreme Court in Prakash Khandre v. Dr. Vijay Kumar Khandre & Others, (2002) 5 SCC 568 and submitted that the Election Commission ought to have undertaken the exercise as was done in the said case before stating its opinion to the Governor; and the Election Commission having failed to do so, its opinion and the consequential order of the Governor deserve to be set aside and the proceedings against the petitioner deserve to be annulled.
The learned Senior Counsel Mr.O.P. Srivastava appearing for the Election Commission of India countered the contentions urged on behalf of the petitioner with the submissions that when the Commission had received the papers containing the report of Lokayukta and documents forming the basis on which the Commission was to proceed, it had asked the petitioner to state his reply on the material as supplied and in such a reply, the petitioner did not raise any objection that the material so supplied be not considered; and the petitioner did not ask for an opportunity to lead evidence. The learned counsel strenuously argued that when the petitioner did not join the issue on the facts, there was no need of holding any enquiry and, therefore, reference to Section 146 of the Act of 1951 is of no avail. The learned Counsel submitted that the Election Commission has not committed any illegality in referring to the observations occurring in the Lokayukta's report as the same was that of the material supplied to it; and the Election Commission had carried out the trial to the extent it was considered requisite and then, specifically found the facts that execution of the works in relation to 37 contracts by the firm of the petitioner continued even after his election as MLA, and running bills were raised by him and payment was received in the firm's name. The learned Counsel also submitted that the firm was continuously referred to as a proprietorship concern with the Government and hence, the Election Commission has rightly found the petitioner to be the actual beneficiary when the Culprit Contracts subsisted and were executed in the firm's name and payment was also received in the firm's name.
Mr. Anupam Mehrotra, the learned Counsel appearing for the respondent No.3 (Lokayukta) has submitted that in the scheme of Act 1975, the Lokayukta has been given wide powers to enquire into the conduct of Public Servants so as to ensure purity and probity in public life. It is submitted that upon receipt of the complaint against the petitioner, the Lokayukta was not merely to forward the same but in view of his powers and duties, has rightly collected the necessary evidence before forwarding the matter. The learned Counsel also submitted that the petitioner did not raise the objections of jurisdiction before the Lokayukta and having failed to raise the question of jurisdiction at the first instance, the delayed challenge to the report of Lokayukta deserves to be rejected. As regards inconsistency that the firm, namely, M/s Chhatra Shakti Construction Company has been referred by the Lokayukta as the proprietary concern of the petitioner whereas the Election Commission has referred it to be a partnership firm of which the petitioner was incharge of affairs, the learned Counsel has submitted that the possibility of the petitioner having used the same firm name for the purpose of his proprietorship as also for the purpose of partnership cannot be ruled out. The learned Counsel submitted that the suggestion of the petitioner about the incorporation of the firm as a Limited Company is also of no avail because the petitioner has failed to show if his proprietorship concern had also been converted into a company and it was the proprietorship concern that had been entering into contracts with the Government and executing the same.
The learned Counsel Dr. L. P. Mishra for the respondent No.5 submitted that Section 9-A of the Act of 1951 refers both to the pre-election disqualification as also the post-election disqualification. It is submitted that the petitioner's case had been a peculiar one of continuing disqualification where he indeed suffered the disqualification even after election when he continued to execute the existing contracts and did not quit the same. The learned Counsel also submitted that even the issue as regards the date of disqualification could be addressed with reference to the fact that the petitioner took the seat in the Assembly after taking oath on 18.03.2012 and, for his conduct of continuing with the contracts, he immediately incurred the disqualification. As regards the status of the firm and contracts, the leaned Counsel submitted that it had been the petitioner who kept the things in ambiguity and did not disclose the correct status of the firm; and while keeping the things obscure, he continued with the contracts by misleading the authorities and at the same time, derived benefits for himself.
The learned Counsel has also submitted that the attack of the petitioner, of want of requisite inquiry and independent findings by the Election Commission, is not correct inasmuch as the Election Commission indeed issued notice and proceeded to hold independent enquiry and then recorded specific findings, as stated in paragraphs 32 to 36, on its own and hence, the Election Commission cannot be said to have rested its opinion only on Lokayukta's report.
As regards Lokayukta's report, the learned Counsel submitted with reference to Section 11 (3) of the Act of 1975 that the proceedings before the Lokayukta are deemed to be judicial proceedings and the findings recorded and the material collected by the Lokayukta cannot be brushed aside as being irrelevant. The learned Counsel submitted that the suggestion about incorporation is merely a camouflage as is apparent from all other relevant factual aspects seen and findings reached by the authorities. The learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy [AIR 1969 SC 447] and submitted that the contracts in question subsisted for non-completion of certain items that were executed later; and the petitioner being the incharge of the affairs of the firm, was rightly held disqualified. The learned counsel also submitted that in these proceedings, the petitioner deserves no relief when he has not been forthright and has been found indulging in such an illegality which cannot be perpetuated.
In rejoinder, the learned Counsel Mr. J. N. Mathur submitted that the question of acquiescence as raised by the respondent No.5 is not correct inasmuch as the petitioner had indeed raised objections on the jurisdiction of the Lokayukta in his very first reply; and in any case, acquiescence could not confer jurisdiction. The learned Counsel also submitted that the petitioner has joined the relevant authorities whose action is in question and who were required to be joined and the suggestion of non-joinder of parties remains baseless. The learned Counsel further submitted there was no question of delay or laches on the part of the petitioner as he has challenged the report of Lokayukta in the present petition based on a continuous cause of action when finally an adverse order has been passed against him. The learned counsel further submitted that the hypothetical submission made on behalf of respondent No.3 that the petitioner might have worked in different firms with the same name has never been raised by any person at any stage. The learned Counsel yet further submitted that the finding of the receiving of the amount, when suggestive that it was received by the petitioner, is neither correct nor supported by any evidence. The learned Counsel further submitted that there was no concept of "continuing disqualification" as suggested on behalf of the respondent No.5; it could either be pre-election disqualification or supervening disqualification. In the present case, according to the learned Counsel, the authorities have not returned categorical finding that it had been the case of supervening disqualification and hence, the impugned report of Lokayukta, the opinion of the Election Commission and the order of Governor cannot be sustained.
We have given thoughtful consideration to the rival submissions and have examined the record with reference to the law applicable.
THE PRELIMINARY OBJECTIONS RAISED ON BEHALF OF THE RESPONDENT NO.3
(i) As noticed, the learned Counsel for the respondent No.3 has raised an objection to the effect that the order as passed in this matter under Article 192 of the Constitution of India is not open to challenge in the Court. Learned Counsel has founded this objection on the observations occurring in paragraph 13 of the decision in Brundaban Nayak's case (supra). The objection so raised remains entirely baseless and could only be rejected.
In Brundaban Nayak's case (supra), essentially the Hon'ble Supreme Court has considered the issue as to how the question referable to Article 192 could arise and the requirements on the part of the Election Commission to state its opinion to the Governor. In the context of contention urged that there ought to be some referring authority and by necessary implication that would be the Speaker of the Legislative Assembly, the Hon'ble Supreme Court rejected such suggestions and observed that the manner of arising of the question or by whom it was raised were all the matters irrelevant for the purpose of application of clause (1) of Article 192 of the Constitution of India. In the said context, the Hon'ble Supreme Court further observed that the type of questions as contemplated under clause (1) of Article 192 of the Constitution are to be decided by the Governor alone and nobody else could decide nor could the decision of the said questions fell within the jurisdiction of the Courts. The referred paragraph 13 of the decision in Brundaban Nayak's case (supra) reads as under:-
"13. Then as to the argument based on the words "the question shall be referred for the decision of the Governor", these words do not import the assumption that any other authority has to receive the complaint and after a prima facie and initial investigation about the complaint, send it on or refer it to the Governor for his decision. These words merely emphasise that any question of the type contemplated by clause (1) of Article 192 shall be decided by the Governor and Governor alone; no other authority can decide it, nor can the decision of the said question as such fall within the jurisdiction of the Courts. That is the significance of the words "shall be referred for the decision of the Governor". If the intention was that the question must be raised first in the Legislative Assembly and after a prima facie examination by the Speaker it should be referred by him to the Governor, Article 192(1) would have been worded in an entirely different manner. We do not think there is any justification for reading such serious limitations in Article 192 (1) merely by implication."
Similar are the observations in Jyoti Prokosh Mitter's case and R. Sivasankara Mehta's case (supra) that no Court has jurisdiction to deal with the questions which are to be decided by the Governor. It is at once clear that what has been held and laid down in the aforesaid decisions is the principle that the questions contemplated under clause (1) of Article 192 are exclusively within the domain of the Governor and hence, such questions cannot be determined by the Court. It has not been laid down that even the decision of the Governor is not amenable to the scrutiny of the Constitutional Courts. This aspect of the matter has been put beyond a pale of doubt by the Hon'ble Supreme Court in Bajrang Bahadur Singh's case (supra) where, in paragraph 67 read with note no.9, the Hon'ble Supreme Court has observed and held as under:-
"67. That being the case, there is always a possibility in a given case that the decision of the Governor could be held to be unsustainable. (9)..
9. The learned counsel for the COMMISSION very fairly submitted that notwithstanding the declaration under Article 191 that the decision of the Governor shall be final, the decision is amenable to the scrutiny of the Constitutional courts although on very limited grounds. Such grounds are explained by a Constitution Bench of this Court in Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 which was relied upon in Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council & Others, (2004) 8 SCC 747.
In Kihoto's case, this Court was dealing with the validity of the Constitution 52nd Amendment Act, 1985 by which the Xth Schedule was added to the Constitution.
Para 6 of the Xth Schedule contains a declaration such as the one contained in Article 192 saying that the "decision of the Chairman .... shall be final." Apart from such a declaration, Para 7 of the Xth Schedule makes an express declaration "that no Court shall have any jurisdiction in respect of any matter ....... under this Schedule".
Dealing with the above two provisions, this Court held that "the concept of statutory finality embodied in paragraph 6 (1) does not detract from or abrogate the judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, malafides, non-compliance with rules of natural justice and perversity are concerned."
A similar declaration of finality exists in Article 217 (3). The scope of such a declaration fell for the consideration of a Constitution Bench of this Court in Union of India v. Jyoti Prakash Mitter, (1971) 1 SCC 496 wherein this Court held:-
"32. The President acting under Article 217 (3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the Rules of natural justice were not observed, or that the President's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence. But this Court will not sit in appeal over the judgment of the President, nor will the Courts determine the weight which should be attached to the evidence.
In view of the legal position emerging from the above decisions, a declaration of finality contained in Article 192 cannot be considered to be conclusive and the decision of the Governor is amenable to the judicial review on the limited grounds as indicated in the above-mentioned two judgments.
We find it difficult to accept the suggestion of the learned Counsel for the Lokayukta that the decision of the Supreme Court in Bajrang Bahadur Singh's case cannot be considered as a precedent in this regard for Brundaban Nayak's case (supra) having not been considered. As noticed, in Brundaban Nayak's case (supra), such question did not even arise as to whether the decision of the Hon'ble Governor was amenable to the judicial review or not; and the observations in Brundaban Nayak's case (supra) were not of any enunciation of law to the contrary. The above-quoted and other observations and directions in Bajrang Bahadur Singh's case (supra) by the Hon'ble Supreme Court take it beyond doubt that a declaration of finality over the Governor's decision as contained in Article 192 of the Constitution does not take away the decision of the Governor beyond the scope of judicial review.
Thus, even when there remains a limited scope for scrutiny, the decision of the Governor under Article 192 is, nevertheless, amenable to the judicial review.
(ii) The learned counsel has further raised the objections that the petition is not founded on correct projection of facts; and, the person making reference to the Governor has not been joined as a party hereto. These submissions, in our view, hardly impede the merit consideration of this petition. In the frame of the present petition and the submissions made before the Court, it cannot be said that the petitioner has concealed any material fact or has made any misstatement. Of course, as to whether the suggestions made by the petitioner take him away from the sweep of Section 9A of the Act of 1951 is a matter different, but there appears nothing of substance in the so-called preliminary objections raised on behalf of the Lokayukta. Then, in the present writ petition, the petitioner has impleaded, inter alia, the Election Commission of India, Lokayukta and the complainant as the parties. The joinder of His Excellency the Governor as respondent No.1 was withdrawn and in his place, his Principal Secretary has been impleaded. In our view, even the Principal Secretary was not required to be joined in this matter as such. However, looking to the peculiar circumstances of the case, these aspects need not be dilated any further. Suffice it so say that the relevant persons/authorities are found impleaded as respondents no.2, 3 and 5.
(iii) The third objection about allegation of mala fides without joining the Lokayukta in personal capacity as party also needs not of much comment, except that in the first place, we do not find any specific allegation on the person concerned as such in this petition. This apart, some expressions, if were likely to be construed as allegations, have not been pressed by the learned counsel for the petitioner. The aspect relating to the preliminary objections need not detain us any further.
(iv) The other suggestion on behalf of the respondent that the matter does not refer to any fundamental or common law right is also, in our view, of no substance. In the present matter, the petitioner has a legal right to seek judicial review of the orders passed against him and in view of what has been observed by the Hon'ble Supreme Court in Bajrang Bahadur Singh's case (supra), the decisions cited by the learned counsel for the respondent No.3 in this regard need not be elaborated upon as the same are not of direct application.
LEGALITY, VALIDITY AND WORTH OF THE REPORT OF LOKAYUKTA DATED 18.02.2014 As noticed, it had been the emphatic contention on behalf of the petitioner that once Lokayukta found that an issue of disqualification under Article 191of Constitution of India read with Section 9-A of the Act of 1951 had arisen, he ought to have referred the matter to the Governor and could not have undertaken any investigation and could not have made a report as if of his findings. Per contra, it has been contended on behalf of the respondent No. 3 that the petitioner had submitted to the jurisdiction of Lokayukta in the matter and did not raise specific objection on the jurisdiction of Lokayukta to deal with the matter; and that the Lokayukta has rightly collected the necessary material before forwarding the matter with his report.
So far the powers and jurisdiction of Lokayukta to deal with the complaints containing allegations or grievance are concerned, the same are not in doubt or dispute but when the provisions of the Act of 1975 are examined vis-a-vis the provisions of Articles 191 and 192 of the Constitution of India, with reference to the decisions of the Hon'ble Supreme Court including the decision in Brundaban Nayak's case (supra), we are clearly of the view that once it was clear to the learned Lokayukta that the matter raised the questions relating to the disqualification of a Member of Legislative Assembly, which were to be determined by the Governor only on the basis of the opinion of the Election Commission, the learned Lokayukta ought to have forwarded the matter to the Hon'ble Governor and could not have proceeded as if entering into an investigation and could not have made a report suggestive as if to be a report per sub-Section (3) of Section 12 of the Act of 1975.
In the relevant part of the Scheme of the Act of 1975, the complaint could be made to the Lokayukta or Up-Lokayukta in case of an allegation by a person other than a sitting public servant with an affidavit and with the compliance of other requirements of Section 9 of the Act of 1975. The "allegations" which could be investigated by the Lokayukta under the Act of 1975 are defined in clause (b) of Section 2 thereof. The proceedings in respect of an investigation as provided under Section 10 of the Act of 1975 could be adopted by the Lokayukta only when he proposes to conduct any investigation under the said Act. Section 11 makes the provision for collection of evidence for the purpose of investigation and in that regard, the proceedings before the Lokayukta are deemed to be judicial proceedings within the meaning of Section 193 IPC obligating truthful disclosure by the witnesses concerned. The Lokayukta is supposed to make a report, with relevant material/evidence after investigation on a complaint involving allegations, to the competent authority while stating his satisfaction that the allegations could be substantiated either wholly or in part and while stating his findings and recommendations. Such is the operation under sub-Section (3) of 12 of the Act of 1975. The provisions contained in Sections 2(b) and 10 to 12 of the Act of 1975 read as under:-
"2 (b) "allegation", in relation to a public servant, means any affirmation that such public servant-
(i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person.
(ii) was actuated in the discharge of his functions as such public servant by personal interest or im-proper or corrupt motive, or
(iii) is guilty of corruption, or lack of integrity in his capacity as such public servant;
10. Procedure in respect of investigations. - (1) Whether the Lokayukta or an Up-Lokayukta proposes (after making such preliminary inquiry, if any, as he deems fit) to conduct any investigation under this Act, he-
(a) shall forward a copy of the complaint to the public servant concerned and the competent authority concerned;
(b) shall afford to the public servant concerned an opportunity to offer his comments on such complaints; and
(c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit.
(2) Every such investigation shall be conducted in private, and in particular, the identity of the complainant and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during or after the investigation:
Provided that, the Lokayukta or an Up-Lokayukta may conduct any investigation relating to a matter of definite public importance in public, if he, for reasons to be recorded in writing, thinks fit to do so.
(3) Save as aforesaid, the procedure for conducting any such investigation shall be such as the Lokayukta or, as the case may be, the Up-Lokayukta considers appropriate in the circumstances of the case.
(4) The Lokayukta or an Up-Lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or, an allegation, if in his opinion-
(a) the complaint is frivolous or vexatious, or is not made in good faith ; or
(b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation, or
(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.
(5) In any case where the Lokayukta or an Up-Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he shall record his reasons therefore and communicate the same to the complainant and the public servant concerned.
(6) The conduct of an investigation under this Act in respect of any action shall not affect such action, or any power or duty of any public servant to take further action with respect to any matter subject to the investigation.
11. Evidence. -(1) Subject to the provisions of this section, for the purpose of any investigation (including the preliminary inquiry, if any, before such investigation) under this Act, the Lokayukta or an Up-Lokayukta may require any public servant or any other person who in his opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such documents.
(2) For the purpose of such investigation (including the preliminary enquiry) the Lokayukta or an Up-Lokayukta shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), in respect of the following matter, namely-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document ;
(c) receiving evidence on affidavits ;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commission for the examination of witnesses or documents;
(f) such other matters as may be prescribed.
(3) Any proceeding before the Lokayukta or an Up-Lokayukta shall be deemed to be a judicial proceeding within the meaning of section 193 of the Indian Penal Code (Central Act 45 of 1860).
(4) Subject to the provisions of sub-section (5), an obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to the State Government or any public servant, whether imposed by any enactment or by any rule of law, shall apply to the disclosure of information for the purpose of any investigation under this Act and the State Government or any public servant shall not be entitled in relation to any such investigation to any such privilege in respect of the production of documents or the giving of evidence as is allowed by any enactment or any rule of law in legal proceedings.
(5) No person shall be required or authorized by virtue of this Act to furnish any such information or answer any such question or produce so much of any document-
(a) as might prejudice the security of the State or the defence or international relations of India (including India's relations with the Government of any other country or with any international organization), or the investigation of detection of crime ; or
(b) as might involve the disclosure of proceedings of the Cabinet of the State Government or any Committee of that Cabinet, and for the purpose of this sub-section a certificate issued by the Chief Secretary certifying that any information, answer or portion of a document is of the nature specified in clause (a) or clause (b), shall be binding and conclusive.
(6) Subject to the provisions of sub-section (4), no person shall be compelled for the purposes of investigation under this Act to give any evidence or produce any document which he could not be compelled to give or produce in proceedings before a Court.
12. Reports of Lokayukta and Up-Lokayukta.- (1) If, after investigation of any action in respect of which a complaint involving a grievance has been made, the Lokayukta or an Up-Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or any other person, the Lokayukta or Up-Lokayukta shall by a report in writing, recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.
(2) The competent authority to whom a report is sent under sub-section (1), shall within one month of the expiry of the term specified in the report, intimate or cause to be intimated to the Lokayukta, or as the case may be, the Up-Lokayukta, the action taken for compliance with the report.
(3) If, after investigation of any action in respect of which a complaint involving an allegation has been made, the Lokayukta or an Up-Lokayukta is satisfied that such allegation can be substantiated either wholly or partly, he shall by report in writing, communicate his findings and recommendation along with the relevant documents, materials and other evidence to the competent authority.
(4) The competent authority shall examine the report forwarded to it under sub-section (3) and intimate within three months of the date of receipt of the report, the Lokayukta or, as the case may be, the Up-Lokayukta, the action taken or proposed to be taken on the basis of the report.
(5) If the Lokayukta or the Up-Lokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under information to the complainant, the public servant and the competent authority concerned, but where he is not so satisfied and if he considers that the case so deserves he may make a special report upon the case to the Governor and also inform the complainant concerned.
(6) The Lokayukta and Up-Lokayukta shall present annually a consolidated report on the performance of their functions under this Act to the Governor.
(7) On receipt of a special report under sub-section (5) or the annual report under sub-section (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature.
(8) Subject to the provisions of sub-section (2) of Section 10, the Lokayukta may at his discretion make available, from time to time, the substance of cases closed or otherwise disposed of by him or by an Up-Lokayukta, which may appear to him to be of general, public, academic or professional interest, in such manner and to such person as he may deem appropriate."
We may observe that the petitioner did raise the objection of jurisdiction of Lokayukta (though not in very specific terms) in his reply. However, looking to the subject matter, it would have discreet on the part of the Lokayukta that such objection and the operation of the provisions of Constitution of India were examined before drawing a report suggestive of his findings.
Even if the proceedings before the Lokayukta are treated to be the judicial proceedings, but they are deemed to be so for the purpose of Section 193 IPC and not beyond. The Lokayukta has the powers of the Civil Court for the purpose of conducting investigation, including preliminary enquiry but then, the question is as to whether he could conduct investigation and state anything suggestive of his finding even in a matter which is in the exclusive domain and jurisdiction of the Governor? The answer, in our view, could only be in the negative. If the Lokayukta is to be acceded any such power of making investigation and then stating his report, which is to contain findings as per Section 12 (3) of the Act of 1975 even for the purpose of a question referable to Article 192 of the Constitution of India, the same would be clearly at conflict with clause (2) of Article 192 of the Constitution of India whereby, the Governor is to act only on the opinion of the Election Commission. In fact, looking to the purpose and purport of Article 192, as explained by the Hon'ble Supreme Court in the case of Brundaban Nayak (supra), though the question of disqualification could be raised in any manner by anybody but then, it has to be referred to the Governor and any attempt of any determination of any such question by any person other than the Election Commission is out of question. Such power of forming opinion on the question of disqualification of MLA is with the Election Commission and in our view, in the Scheme of Article 192 of the Constitution of India, it is in exclusion of any other body or authority. Therefore, we are clearly of the view that if Lokayukta was having with him any complaint raising any question of disqualification of the petitioner, he ought to have forwarded the same to the Governor and could not have undertaken any investigation, which could otherwise be undertaken by him on any other complaint covered by the Act of 1975.
In the present case, the learned Lokayukta was conscious of the fact that the complaint had given raise to the question of disqualification, as is apparent from the very contents of notice dated 1.1.2014. In fact, the notice also makes it clear that it was "only on this point" that the Lokayukta had accepted the matter for investigation under Section 10 (1) (a) of the Act. To the extent the Lokayukta purportedly proceeded to collect the evidence and then, to state his own impressions cannot be approved by us. It was required of the Lokayukta only to forward the matter directly to the Governor for appropriate proceedings.
A look at the detailed report of the Lokayukta makes it clear that though the Lokayukta in the last suggested that he was refraining from recording a final finding, but all other preceding paragraphs definitely show that the Lokayukta had purportedly made such observations which could be construed to be of his findings.
Even if the observations foregoing are to the effect that the Lokayukta was not justified in suggesting his findings in the matter, the question still arises as to whether the report made by the Lokayukta could be annulled altogether. Even from the observations of the Hon'ble Supreme Court in Brundaban Nayak's case (supra), this much is apparent that the question of disqualification could arise in any manner and from any source for consideration of the Governor. The Hon'ble Supreme Court has rejected the contention that the question ought to be raised before the Governor from a particular source, i.e., the Speaker of Legislative Assembly, while observing as under:-
"12. We are not impressed by these arguments. It is significant that the first clause of Article 192(1) does not permit of any limitations such as Mr Setalvad suggests. What the said clause requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr Setalvad seeks to introduce in the construction of the first part of Article 192(1) is plainly inconsistent with the words used in the said clause."
As observed, the Lokayukta could have referred the question to the Governor because the question on disqualification could arise before the Governor from any source and in any manner. However, the learned Lokayukta could not have drawn a report suggestive of his answers to such question.
In view of the above and the overall circumstances of the case, we are clearly of the view that the report of Lokayukta could be and is rather required to be taken as of raising the question for consideration of the Hon'ble Governor and to this extent, the Lokayukta cannot be said to have acted wholly illegally or unauthorizedly. The complaint was before him and the matter gave raise question to the disqualification of an MLA. He was bound to refer the same to the Governor. Thus, the report of the Lokayukta cannot be annulled altogether as argued on behalf of the petitioner. However, whatever are the observations occurring therein, they could only be considered to be of raising question/s and not of findings.
The suggestion on behalf of the respondent No.3 that challenge to the Lokayukta's report is belated one does not appear correct as the material occasion to challenge the said report has definitely arisen for the petitioner when the same has been used against him. In this writ petition, against the order ultimately passed against him, the petitioner was entitled to challenge the order/opinion resulting or providing basis to such decision. However, as held hereinbefore, the said report of Lokayukta is not declared as nullity, but could only be read to the extent it is relevant for stating the question for the Governor's consideration and not beyond.
OPINION OF THE ELECTION COMMISSION It is hardly of any quarrel that the jurisdiction exercised by the Governor in this matter is essentially that of taking a decision as per the opinion of the Election Commission as is clear from the provisions of Article 192 of the Constitution of India.
There remains nothing of doubt that the Governor is to act only as per the report of the Election Commission though the Constitution does not specify as to how the Election Commission is to proceed in the matter for the purpose of stating its opinion when the matter is referred by the Governor for the purpose of opinion under Article 192 (2) of the Constitution. Looking to the purpose and purport of such opinion and its consequences that it would be acted upon by the Governor and the decision would be final, the requirement cannot be gainsaid that the Election Commission ought to state its opinion dispassionately and objectively and for that purpose, the Commission may hold such inquiry, as considered necessary and proper. The powers of Election Commission in this regard are delineated in Chapter IV of the Act of 1951. While Section 146-B thereof leaves it open for the Election Commission to regulate its own procedure, Section 146 of the Act of 1951 reads as under:-
"146. Powers of Election Commission.--(1) Where in connection with the tendering of any opinion to the President under article 103 or, as the case may be, under sub-section (4) of section 14 of the Government of Union Territories Act, 1963 (20 of 1963), or to the Governor under article 192, the Election Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own accord, it cannot come to a decisive opinion on the matter which is being inquired into, the Commission shall have, for the purposes of such inquiry, the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath ;
(b) requiring the discovery and production of any document or other material object producible as evidence;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or a copy thereof from any court or office ;
(e) issuing commissions for the examination of witnesses or documents.
(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as in the opinion of the Commission may be useful for, or relevant to, the subject-matter of the inquiry.
(3) The Commission shall be deemed to be a civil court and when any such offence, as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code (45 of 1860), is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1898 (5 of 1898), forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of Criminal Procedure, 1898 (5 of 1898).
(4) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)."
In the present matter, the opinion as stated by the Election Commission has been assailed as being not of independent opinion after collection of necessary material and carrying out necessary inquiry but being the one based only on the report of the Lokayukta treating the observations therein as if of concluded findings. We have examined the report of Election Commission in extenso; some of the concluding passages whereof have been reproduced hereinbefore.
The opinion in relation to the petitioner, though made in detail, refers predominantly to the observations made by the Lokayukta, taking them to be the findings of the Lokayukta as is evident from the expression unequivocally and repeatedly used by the Election Commission and the passages of the Lokayukta's report reproduced by it. It is also seen in the notice dated 19.6.2014 issued by the Election Commission to the petitioner that the petitioner was called upon to submit a reply to the alleged 'findings of Lokayukta', while seeking information about the contracts, if any, awarded to him.
Though at one stage, the Election Commission has observed that the Lokayukta has not recorded any finding or expressed any view on the question to be determined by the Governor but then, the report, read as a whole, leaves nothing to doubt that the Election Commission primarily considered the observations made in the report of Lokayukta as being of the findings and conclusions. In fact the Election Commission, while dealing with the case of Bajrang Bahadur Singh has made an observation, as occurring in paragraph 39 of the opinion, even to the effect that the Commission could not sit in judgment over the order or report of Lokayukta.
As noticed, the exclusive jurisdiction to consider post-election disqualification of MLA per Article 192 of the constitution is of the Governor; and the Hon'ble Governor is to act on the opinion of the Election Commission. The Election Commission, as held by the Supreme Court, is to carry out necessary trial for the purpose; and, as seen in the provisions contained in Section 146 of the Act of 1951, the Commission has been invested with all necessary powers for making appropriate enquiry so as to come to a decisive opinion. The unsustainable part of the matter is that in the present case, the Election Commission, instead of carrying out necessary inquiry on the factual aspects raised by the petitioner, proceeded as if the observations in Lokayukta's report were of concluded findings. The suggestion on behalf of the Election Commission that the Lokayukta's report and its enclosures were that of relevant material and the petitioner did not object against the consideration of this material does not take away the shortcoming in the report of the Election Commission. Whether the petitioner objected or not, the Election Commission could not have taken the report of Lokayukta as fait accompli.
It has been suggested by the learned counsel for the respondents from the concluding passages in the Election Commission's opinion that it had indeed arrived at its opinion with reference to the material collected by it. However, the flaw in this regard remains that the Election Commission appears to have recorded certain suggested findings which are again based on Lokayukta's report, though purportedly coupled with the examination of other material where the Commission has deduced that certain running bills were submitted by the firm of the petitioner and the payments were received by the firm of the petitioner in its name even after his election. It is noticed that what the Election Commission received from the Government under the communication dated 1.9.2014 (Annexure-RA3) had been certain facts concerning the petitioner's earlier firm, its corporation as a company and the Company's Registration and thereafter, the fact that as many as 20 contract works were awarded to the said company of the petitioner after his election. In regard to these 20 contract works, the Election Commission has itself found no case of disqualification for the work having been awarded to a different juristic person, i.e., a limited company. It is difficult to find as to what other inquiry was carried out by the Commission before recording a finding about execution of the works by the petitioner's firm and receiving of the payments by the petitioner or his firm?
We find it difficult to endorse the opinion of the Election Commission for another fundamental reason that therein, defence of the petitioner that even if certain works continued in the name of erstwhile firm and payments were drawn in the name of the firm, the same were deposited only in such bank accounts which had already been made over to the limited company and formed only the part of money of the said limited company has not been considered. We would hasten to observe that we are not commenting on the merits or demerits of the defence of the petitioner but are clearly of the view that such defence and all the related aspects having not been considered independently by the Election Commission, its finding cannot be approved and the matter deserves a re-look and appropriate inquiry by the Commission, in accordance with law.
There is yet another reason wherefor we find it difficult to endorse the opinion of the Election Commission. In the present case, the Election Commission has, even while returning the finding against the petitioner, has not said that the same were that of supervening disqualification for the purpose of Article 192 of the Constitution.
The learned counsel for the respondent No.5 suggested that it were a matter of so-called continuing disqualification, i.e. to say that the disqualification that was existing even at the time of election of the petitioner and continued even thereafter. We have only taken note of these submissions but would not make a final comment in that regard for the order proposed to be passed in this case. Suffice it to observe for the present purpose that the concept of so-called continuing disqualification is not as such seen in Article 192 of the Constitution that essentially requires consideration of a question of an MLA becoming subject to any disqualification under Article 191 (1), i.e., of incurring of such disqualification after his election. In any case, the Election Commission has not specifically dealt with this aspect of the matter either.
Significantly, the Election Commission chose to hold the petitioner disqualified with effect from 6.3.2012, i.e. the date of his election. The suggestion by the learned counsel for the respondent No.5 that if not this date, then the date of taking oath as Member of House may be taken as relevant does not carry force. In the context of the present case, it remains questionable as to how the date of election of the petitioner has been taken as being the date of his disqualification for the purpose of Article 192 of the Constitution? The impugned order of His Excellency the Governor also does not dilate on this aspect of the matter.
We would again hasten to observe that if at all, the Election Commission were to reach a definite finding that the petitioner, because of any particular act or omission, had incurred disqualification for the purpose of Article 192, the date of acquiring such disqualification with reference to the particular event was definitely required to be mentioned, as had been mentioned in Bajrang Bahadur Singh's case.
We would refrain from elaborating further on the aspects relating to the opinion of the Election Commission and even the factual aspects as suggested by the parties because, in our view, the entire matter deserves re-consideration by the Election Commission and then, by His Excellency the Governor.
Conclusion For what has been observed and discussed hereinabove, we are clearly of the view that the opinion as suggested by the Election Commission and the consequential decision as taken by His Excellency the Governor in relation to the petitioner cannot be sustained and the matter, involved in Reference Case No. 2 of 2014 deserves to be restored to the file of the Election Commission for its consideration afresh, in accordance with law while keeping in view the observations foregoing.
Accordingly and in view of the above, this writ petition succeeds and is allowed to the extent and in the manner indicated above. The impugned decision of His Excellency the Governor dated 29.1.2015 and the opinion of the Election Commission dated 31.12.2014 are set aside. The matter in Reference Case No.2 of 2014 stands restored for re-consideration of the Election Commission. So far as the report of Lokayukta is concerned, the same shall be considered by the Election Commission only as a report raising questions and not that of concluded findings. The Election Commission shall proceed in the matter in accordance with law and with reference to its powers under Chapter IV of the Act of 1951 and shall state its opinion for appropriate decision by the Governor, after making such inquiry as deemed necessary for its decisive opinion.
In the interest of justice, we make it clear that on the factual aspects, none of the observations made in this order shall be construed to be any expression of opinion of this Court on merits; and all the factual aspects shall be open for consideration and opinion of the Election Commission.
The parties through their respective counsel shall stand at notice to appear before the Election Commission in the first place on 15.06.2015. Thereafter, the Election Commission shall proceed expeditiously in the matter, in accordance with law.
No costs.
Dt.28.5.2015 lakshman/ Liyakat Ali [Ritu Raj Awasthi, J.] [Dinesh Maheshwari, J.]