Allahabad High Court
Ranjana Agnihotri & 5 Ors. [ P.I.L. ... vs State Of U.P. Thru. The Chief Secy. ... on 22 June, 2015
Bench: Arun Tandon, Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
[AFR]
Case :- MISC. BENCH No. - 5388 of 2015
Petitioner :- Ranjana Agnihotri & 5 Ors. [ P.I.L. ]
Respondent :- State Of U.P. Thru. The Chief Secy. Govt. Of U.P. & 2 Ors.
Counsel for Petitioner :- Hari Shankar Jain
Counsel for Respondent :- C.S.C.
Hon'ble Arun Tandon,J.
Hon'ble Anil Kumar,J.
Heard Shri H.S. Jain, learned counsel appearing on behalf of the petitioners, Smt. Bubul Godial, learned Additional Government Advocate on behalf of the State.
The petitioners before this Court who are practicing lawyers, seek a writ in the nature of MANDAMUS directing the Governor of the Sate of U.P. not to act on the recommendations of the Cabinet of Ministers in the matter of nomination of members to the Legislative Council of the State of U.P. in exercise of power conferred under Article 171 (3)(e) of the Constitution of India (hereinafter referred to as the 'Constitution').
It is stated that the Governor has been conferred a discretion in the matter of nomination of members to the Legislative Council and such discretion is controlled only by the phrase 'having special knowledge and practical experience in respect of such matter as the following namely : (a) Literature, (b) Science, (c) Art, (d) Cooperative Movement & (e) Social Service' as per sub-Clause (5) of Article 171 of the Constitution. It is their case that the nominations to be made by the Governor is at his own discretion and such discretion cannot be influenced by the Cabinet of Ministers, in any manner.
It is explained to the Court that although under Article 163 (1) of the Constitution, the council of ministers is there to advise the Governor but later part of same Article 163 (1) of the Constitution clarifies that in the matters, where the power is to be exercised by the Governor on his own discretion then the advise of the Council of the ministers is neither required nor it is binding upon him.
Shri H.S. Jain, learned counsel for the petitioners, further submitted that while making nominations under Article 171 (5) the Governor of the State must examine as to whether the nominated member stands disqualified under the provisions of the Representation of the People Act, 1951 or not. According to him, what cannot be achieved directly cannot be achieved indirectly by getting nominated to the Legislative Council, by a person who stands disqualified from contesting the elections for the legislature under the Representation of the People Act, 1951.
Lastly, it is stated that the petitioners had earlier approached this Court by means of Writ Petition No.5722 (MB-PIL) of 2009 raising a similar grievance. The writ petition is pending for last six years, the practice of nomination by the Governor on the advise of the Cabinet of Ministers has continued in the same fashion, only because the earlier petition is not being decided.
In our opinion, the present writ petition is premature. From a simple reading of Article 171 (2)(e) read with Article 171(5) of the Constitution it is apparently clear that nomination of 1/3 members to the Legislative Council is made by the Governor of the State in his discretion, of persons having special knowledge or practical experience in the fields prescribed. We have no hesitation to record that this discretion conferred upon the Governor has to be exercised within the parameter of the Constitution and not beyond it.
We are also of the opinion that in the matter of nomination under Article 171(2)(e), the advise of the Council of the ministers is not binding upon the Governor. He is to act on his own discretion. But as on date, no issue has arisen before this Court for it to enter into any other aspect of the matter inasmuch as the Governor is still to nominate the members.
As and when the nominations are made by the Governor and the petitioners feel that there has been infringement of the constitutional provisions in making of such nomination, they will be at liberty to seek their remedy in accordance with law.
The issue with regard to the disqualifications as per the provisions of Representation of The Peoples Act being attracted even in the case of persons to be considered for nomination to the legislative council under Article 171 (2)(e) may not detain the Court for long inasmuch as no cause has arisen in that regard till date. As and when a person is nominated to Legislative Council qua whom the disqualifications under the Representation of Peoples Act are attracted the petitioners shall be at liberty to question such a nomination before the appropriate Forum.
So far as the plea of non-retirement of at least 1/3 members of the Legislative Council every two years as per Article 172 (2) of the Constitution of India is concerned, we find that the relevant facts in that regard are wanting in the pleadings. We are not in a position to adjudicate upon the said issue on vague facts.
So far as the pendency of writ petition filed in the year 2009 is concerned, we feel that it should have been decided by now having regard to the larger public issue relating to nomination of members to the Legislative Council affecting the working of the democracy in the country. The said writ petition is pending for six years as on date. The petition is required to be heard finally, at the earliest.
We, therefore, grant liberty to the petitioners to approach the Hon'ble the Chief Justice as and when he holds court at Lucknow by means of an appropriate application for nominating a special Bench for disposal of the writ petition No.5772 (MB-PIL) of 2009
With the aforesaid observations, this writ petition is disposed of.
.
(Anil Kumar, J.) (Arun Tandon, J.)
Order Date :- 22.6.2015
GK Sinha
