Bombay High Court
Sanjay Narayanrao Meshram, ... vs The Election Commission Of India ... on 7 June, 2016
Bench: B.P. Dharmadhikari
wp754.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 754 OF 2016
Sanjay Narayanrao Meshram,
aged 46 years, residing at
Mauza - Bhojapur, Tahsil -
Kuhi, District - Nagpur. ... PETITIONER
Versus
1. The Election Commission of
India through its Chief Election
Commissioner, having its office
at Nirvachan Sadan, New Delhi
110 001.
2. The State of Maharashtra
through its Secretary, Law and
Judiciary Department, Mantralaya,
Mumbai 440 032.
3. The Secretary of the Maharashtra
Legislative Assembly, Mumbai.
4. The Chief Electoral Officer,
State of Maharashtra, Mantralaya,
Maharashtra, Mumbai 400 032.
5. The Hon'ble Speaker of the
Legislative Assembly, Mantralaya,
Maharashtra, Mumbai. ... DELETED
6. The Hon'ble Governor,
through its Secretary. ... DELETED
7. Sudhir Laxmanrao Parwe,
aged 47 years, residing at
Plot No. 37, Jipkate Layout,
Umred, Tahsil - Umred,
District - Nagpur. ... RESPONDENTS
Shri R.D. Dhande, Advocate for the petitioner.
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Shri S.V. Manohar, Senior Advocate appointed as Amicus Curiae.
Ms. N.G. Choubey, Advocate for respondent Nos. 1 & 4.
Shri Rohit Deo, Additional Advocate General with Mrs. B.H. Dangre,
GP for respondent Nos. 2 & 3.
Shri S.P. Dharmadhikari, Senior Advocate with Shri A.S. Kilor,
Advocate for respondent No. 7.
.....
CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
DATE OF RESERVING JUDGMENT : MARCH 29, 2016.
DATE OF PRONOUNCEMENT : JUNE 07, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
By this petition filed under Article 226 of the
Constitution of India, the petitioner, a citizen of India, claims
that Respondent No. 7 has become disqualified and, therefore,
ceases to be a Member of State Legislative Assembly from
Umred Constituency of Nagpur district because of his
conviction on 24.04.2015 by the Chief Judicial Magistrate, First
Class, Bhiwapur. The declaration is claimed under Article 191
(1) of the Constitution of India with further declaration under
Article 190(3)(a) read with Section 8(3) of the Representation
of the People Act, 1951, (hereinafter referred to as R.P. Act,
1951), that the said seat is vacant. A communication sent by
the office of the Governor of State of Maharashtra to
Respondent No. 1 - Election Commission is also assailed on the
ground that it is without jurisdiction and unconstitutional. Writ
is sought to Respondent No. 1 to immediately initiate process
for Bye-Election from Umred Constituency as mandated under
Section 151 of the Representation of the People Act, read with
its Section 151-A. By inviting attention to policy decisions
incorporated in letters dated 07.08.2013 and 13.10.2015, a
writ is also sought to Respondent Nos. 1 to 4 to set up a
mechanism and evolve a procedure accordingly to facilitate
immediate action against the elected representatives of People
in such matters.
2. The Hon'ble Speaker of Legislative Assembly and
the Hon'ble Governor for State of Maharashtra were initially
joined as respondent Nos. 5 & 6 in writ petition, however, it
appears that on 03.02.2016, at the request made by the
petitioner, Respondent Nos. 5 & 6 have been deleted.
3. The facts are not in dispute. Respondent No. 7 has
been elected as representative from Umred Constituency of
Nagpur District in the State Assembly elections. He contested
the general elections in 2014 and his tenure is up to 2019.
4. On the basis of Crime No. 83 of 2005 and Regular
Criminal Case (RCC) No. 263 of 2008, he was prosecuted in the
Court of J.M.F.C., Bhiwapur, District Nagpur. On 24.04.2015,
he was convicted under Section 332 for two years and under
Section 353 for one year. Respondent No. 7 then preferred
Criminal Appeal No. 133 of 2015 before the Sessions Court,
Nagpur. The Appellate Court on 11.05.2015 suspended the
sentence but did not stay his conviction. Vide the judgment
delivered on 13.10.2015, it reduced punishment of
imprisonment to three months. Respondent No. 7 then
approached this High Court in Criminal Revision Application
No. 132 of 2015, challenging the said judgment and order
dated 13.10.2015. The High Court permitted the matter to be
compounded on 21.12.2015.
5. The petitioner on 11.06.2015 sent a communication
to the Hon'ble Governor with its copies to the Chief Election
Commissioner pointing out that in law, Respondent no. 7
becomes disqualified automatically and according to him, in
Monsoon Session of Assembly which commenced from
01.07.2015 and lasted up to 31.07.2015, Respondent No. 7
should not have been permitted to participate. But he was not
debarred. This action of participation in proceedings of house
violated the Article 193 of the Constitution of India.
Respondent No. 1 - Commission ought to have taken steps to
fill in vacancies within a period of six months but that was also
not done. Hence, the petitioner filed Writ Petition No. 4975 of
2015 before this Court and on 22.09.2015. The Election
Commission made a statement before this Court that it would
send its opinion to the Hon'ble Governor in any case within
next three weeks. The learned Government Pleader thereupon
stated that the office of the Governor would decide the question
at the earliest. Accepting these statements, that writ petition
was disposed of.
6. On 13.10.2015, Respondent No. 1 forwarded a
communication to Respondent Nos. 2, 3 & 4 reiterating the
contents of its earlier letter dated 07.08.2013. On 26.10.2013,
the petitioner sought information under Right To Information
Act, 2005, about follow up action after High Court directions.
He received reply thereto with copy of a letter dated
03.09.2015. As per that letter, Governor requested the Election
Commission to give its opinion. A copy of letter dated
16.11.2015 was also then received by the petitioner. The said
letter was forwarded by the office of the Secretary of the
Governor of Maharashtra to the Secretary, Election Commission
of India, mentioning that the Hon'ble Governor had not issued
an order for disqualification under Article 192(2) of the
Constitution and the Hon'ble Governor was waiting for the
opinion of the Election Commission of India, to confirm
whether there was any need to issue such an order of
disqualification because of later order of the Appellate Court
reducing the term of imprisonment from two years to three
months. Thus, due to this state of affairs & inaction, present
petition has been filed.
7. We have heard Shri R.D. Dhande, learned counsel
for the petitioner, Shri Sunil V. Manohar, Senior Advocate,
appointed as Amicus Curiae, Ms. N.G. Choubey, learned
counsel for respondent Nos. 1 & 4, Shri Rohit Deo, Additional
Advocate General with Mrs. B.H. Dangre, learned GP for
respondent No. 2 and Shri S.P. Dharmadhikari, Senior
Advocate with Shri A.S. Kilor, learned counsel for respondent
No. 7.
8. Looking to the nature of controversy, with the
consent of the parties, the matter was taken up for final hearing
by issuing Rule and making it returnable forthwith.
9. Inviting attention to the facts mentioned supra, Shri
Dhande, learned counsel submits that in the light of judgment
of the Hon'ble Apex Court in the case of Lily Thomas vs. Union
of India & Ors., reported at (2013) 7 SCC 653, the matter
stands covered squarely in favour of the petitioner. He submits
that due to disqualification, Respondent No. 7 did not & could
not have remained on seat after 24.04.2015 at all. This
disqualification operates forthwith upon conviction and by
operation of law. No formal order or declaration by the Hon'ble
Governor is envisaged & therefore, no opinion of Election
Commission is necessary for said purpose. He submits that after
receipt of opinion dated 21.09.2015 from the Election
Commission, there was no question of office of the Governor
seeking any further opinion or advise on 16.11.2015 from the
Election Commission. The subsequent event of the Appellate
Court bringing down the punishment on 13.10.2015 is totally
irrelevant. Respondent Nos. 1 to 4 ought to have followed the
mandate of law and hence a resulting vacancy ought to have
been declared. Respondent No. 7 could not have been
permitted to attend Legislative Assembly after 24.04.2015 at
all. He invites attention to Article 193 of the Constitution of
India to urge that Respondent No. 7 has committed an offence
by acting in its breach. Respondent 7 can not get back the seat
unless bye-elections are held & he is again elected. Subsequent
appellate judgment bringing down the term of imprisonment is
inconsequential. He states that in terms of Section 150 read
with Section 151-A of R.P. Act, 1951, immediate steps to fill in
vacancy needed to be initiated and the process should have
been completed. He has relied upon the judgment of the
Hon'ble Apex Court in the case of Election Commission of India
vs. Bajrang Bahadur Singh & Ors., reported at 2015 DGLS
(Soft.) 289; Manoj Narula vs. Union of India, reported at 2014
(9) SCC 77 and Brundaban Nayak vs. Election Commission of
India, New Delhi, reported at AIR 1965 SC 1982, to substantiate
his submissions. He points out how the provisions of Section
8(4) of the R.P. Act, 1951, were found unconstitutional. He
submits that the said logic needs to be kept in mind and act of
the respondents in permitting Respondent No. 7 to remain in
office after 24.04.2015 is, therefore, unsustainable &
objectionable.
10. Shri Sunil V. Manohar, learned Amicus Curiae
appointed by this Court on 25.02.2016 to assist it, has pointed
out the effect of such conviction on the term of elected
representatives. He has also explained machinery provided
under Article 192 pointing out pending reference made by the
office of the Governor and its impact or relevance of answer
thereto by Respondent No. 1 in present facts. He states that all
judgments of the Hon'ble Apex Court prior to judgment in case
of Lily Thomas vs. Union of India & Ors., (supra) consider the
position which was governed by Section 8(4) of the R.P. Act,
1951. He contends that once conviction takes place,
disqualification results automatically. He has relied upon
paragraphs 18 & 21 of said judgment. In present facts,
according to him, this judgment ought to have been followed
and as mandated by Section 151-A of the R.P. Act, 1951, bye
election ought to have been conducted. He further submits that
if there be any reference, it needs to be answered by the
Election Commission within six months keeping in mind time
limit prescribed in Section 151-A. He adds that in such an
eventuality, when Bye-Election to fill in such vacancy has been
held as per the scheme of RP Act, the subsequent acquittal of
disqualified person is irrelevant. He urges that scope for his
restitution in law is very limited.
11. Shri Rohit Deo, learned Additional Advocate
General, relies upon Article 192 to submit that two different
constitutional authorities are involved in the matter of
disqualification. Their role is very important. The Governor
accordingly referred the matter for its opinion to the Election
Commission and as Governor has to decide as per opinion of
Election Commission, Section 146 of the R.P. Act, 1951, gets
attracted. As per that provision even powers of Civil Court can
be invoked to hold an inquiry. He contends that in present
matter, the sentence was stayed by the Appellate Court in less
than one month of conviction and hence Respondent No. 7 was
not sent to prison. Within less than six months, punishment of
two years was removed and hence there could not have been
any disqualification. The subsequent compounding, according
to him, is not relevant in present matter. In view of judicial
reduction of sentence to three months on 13.10.2015, there
never was any conviction for a period of two years and hence,
there never was any disqualification.
12. In this complex situation, when the office of the
Governor found it appropriate to obtain opinion of Respondent
No. 1, on 16.11.2015, a communication was sent. The
communication is within one month of bringing down the
punishment and the punishment was also brought down in a
period of less than one month from the date of order of this
Court dated 22.09.2015. The office of the Governor, therefore,
acted promptly and wanted to find out impact of subsequent
developments.
13. Shri Deo, learned counsel submits that the
petitioner has deleted the Hon'ble Governor as also the Hon'ble
Speaker from the array of parties and in this background, no
finding against these constitutional authorities can be reached
in present matter. He, therefore, submits that a direction to
have time bound consideration of pending reference by the
office of the Hon'ble Governor and steps to provide mechanism
as per letter dated 13.10.2015 read with letter dated
07.08.2013 can at the most be issued. He relies heavily upon
the judgment of the Hon'ble Apex Court in the case of Lily
Thomas vs. Union of India & Ors., (supra) to point out that such
developments which are prior to date of application of mind &
recording of any finding by the Governor are always relevant
as decision making process between two Constitutional
authorities is bound to take some time. He further adds that
when the Court grants stay, it has same effect as that of
acquittal. He draws support from the judgment of the Hon'ble
Apex Court in the case of Smt. Indira Nehru Gandhi vs. Raj
Narain & Anr., reported at AIR 1975 SC 1590.
14. Shri S.P. Dharmadhikari, learned Senior Advocate
submitted that the appellate Court granted stay of sentence on
11.05.2015. The prayer for stay of conviction was never
rejected but as it was agreed to hear the appeal itself finally,
the prayer for stay of conviction was kept pending and
postponed to the stage of final hearing of appeal. He contends
that the Appellate Court ought not to have heard the appeal
finally without deciding pending application for stay of
conviction. In these facts when the Governor decides, the
Hon'ble Governor is not acting as representative of State on aid
and advise of the ministers, but he is guided by the opinion of
the Election Commission. He draws support from the judgment
of the Election Commission of India vs. Dr. Subramaniam Swami,
reported at (1996) 4 SCC 104 and in Brundaban Nayak vs.
Election Commission of India, (supra).
15. The judgment of the Hon'ble Apex Court in the Lily
Thomas vs. Union of India, (supra), particularly paragraphs 18
& 21 are relied upon by him to urge that the subsequent
acquittal of respondent 7 results in wiping out the conviction as
also disqualification retrospectively in the present matter. He
submits that disqualification and declaration of vacancies are
viewed as independent events in the said judgment. But here,
acquittal has come before the seat could be declared vacant. In
view of that acquittal, disqualification could not have operated
and Respondent No. 7 is automatically reinstated. He points
out that such disqualification continues for a period of six
years from the date of release from prison. He relies upon the
judgment of the Hon'ble Apex Court in the case of Baby
Samuel vs. Tukaram Laxman Sable & Ors., reported at 1996 (1)
Mh. L.J. SC 9, to show that restoration of petitioner in this
situation is automatic.
16. The Scheme of Article 192 and Section 146 of
Representation of People Act, is pressed into service by him to
urge that it is for the office of Governor and Respondent No. 1
to jointly consider impact of various facts including subsequent
developments which may be relevant in the said process. He
submits that alleged letter or advise dated 21.09.2015 on which
the petitioner has sought to place reliance and sent allegedly by
Respondent No. 1 to the office of Governor, is not produced on
record by the petitioner. Respondent No. 7 is not aware of any
such development and, therefore, said communication is
irrelevant and cannot be used against the petitioner. According
to him, on 03.09.2015, the office of the Governor has sent a
letter to Respondent No. 1 and also pointed out the opinion
expressed by the In-charge Advocate General of Maharashtra
therein. Thus, the office of the Governor has pointed out the
relevant facts to Respondent No. 1 and had sought its opinion.
The later development i.e. event of bringing down the
punishment dated 13.10.2015 rendered this letter or
communication itself bad. Respondent No. 1 is duty bound to
look into all facts as available on the date on which it applies its
mind and thereafter to record its opinion.
17. He also invites our attention to the judgment of the
Hon'ble Apex Court in the case of Election Commission of India
vs. Bajrang Bahadur Singh & Ors., (supra), particularly
paragraphs 34 & 35 read with paragraph 38 to buttress his
submissions.
18. Shri Dhande, learned counsel, in his reply, submits
that after receipt of opinion dated 21.09.2015 from the
respondent no. 1, Hon. Governor could not have raised any
doubt about need to issue an order of disqualification because
of subsequent judgment of appellate court. In absence of power
with the office of the Hon'ble Governor to seek review, there
was no justification in forwarding communication dated
16.11.2015 by that office to Respondent No. 1. He emphasizes
that his submissions on absence of power to review could not
be even answered by the respondents. He also attempts to urge
that opinion by the Advocate General is not in consonance with
the earlier opinion tendered to the office of the Hon'ble
Governor. Section 146 of the R.P. Act is not attracted as here
conviction is not in dispute and, therefore, there is no need of
holding any inquiry. He has invited our attention to reply
affidavit by Respondent No. 7 before this Court to submit that
there in paragraph 4, the fact of sentencing Respondent No. 7
for a period of two years is admitted. He, therefore, submits
that in present matter, respondent Nos. 1 to 4 have permitted
Respondent No. 7 to continue to function despite his
disqualification, did not hold any election to fill in his vacancy
and did not make any provision to have any machinery in place
to curb such instances. He, therefore, prays for allowing the
petition.
19. The petitioner has not argued about or urged any
malafides on part of the concerned authorities at any point of
time. No such authority is a party respondent. The various
dates noted by us supra show short intervals at which
important events took place. Those developments could not
have been controlled by any of the parties before us.
20. We find the judgment of the Hon'ble Apex Court in
the case of Lily Thomas vs. Union of India & Ors., (supra)
important in this case. In that matter, in paragraph 17, the
Hon'ble Apex Court has considered the relevant legal
provisions. It has found that as per Article 190(3)(a), if a
Member of House of Legislature of a State becomes subject to
any disqualification, his seat thereupon becomes vacant. If
such a Member becomes disqualified by or any law made by the
Parliament, his seat automatically falls vacant. In view of this
provision and similar provision contained in Article 101(3)(a),
the Hon'ble Apex Court held that the Parliament cannot make a
provision like Section 8(4) of the R.P. Act, which has the effect
of deferring the date on which disqualification of a sitting
Member will come into effect, thereby preventing his seat from
becoming vacant. These observations, therefore, show that the
seat occupied by Respondent No. 7 automatically became
vacant on 24.04.2015 due to his conviction for a period of two
years by the Court of J.M.F.C., Bhiwapur.
21. The later observations of the Hon'ble Apex Court in
the case of Lily Thomas vs. Union of India & Ors., supra, show
that it has rejected contention that unless & until a decision is
taken by the Governor on the subject under Article 191(1), the
seat will not become vacant. The said event of decision of the
Governor cannot militate with the mandate of Art. 190(3)(a).
The Hon'ble Apex Court, however, thereafter clarified that bye-
election to fill in such a seat may await the decision of the
Governor under Article 192, and if the Governor takes a view
that a Member has not become subject to any of
disqualifications, it must be held that seat of such Member did
not become vacant at all. While appreciating the contentions
based upon possibility of filing frivolous complaints and of
frivolous convictions by trial Court, the Hon'ble Apex Court did
not find any merit in that argument. It refers to a larger Bench
judgment of its own in the case of Rama Narang vs. Ramesh
Narang & Ors., reported at (1995) 2 SCC 513, wherein it has
been held that when an appeal is preferred under Section 374
of the Code of Criminal Procedure, that appeal is against
conviction as also sentence. The appellate Court, therefore, in
exercise of its power under Section 389(1) can stay the order of
conviction. High Court in its inherent jurisdiction under
Section 482 can also stay conviction. Once the conviction is
stayed, it ceases to operate from the date of its stay. An order
of stay does not render conviction non-existent but only non
operative. Hon. Apex Court, by placing reliance upon its other
larger Bench judgment in the case of Ravikant S. Patil vs.
Savbhau S. Bagali, reported at (2007) 1 SCC 673, also mentions
that once conviction is stayed, disqualification arising out of
that conviction ceases to operate. In paragraph 21, in case of
Lily Thomas vs. Union of India & Ors., (supra), it has been held
that after stay of conviction, disqualification arising out of
conviction under sub-section (1), (2), (3) of Section 8 of R.P.
Act, cannot operate from the date of stay of conviction. This
judgment of the Hon'ble Apex Court itself shows that
disqualification cannot continue after conviction is stayed by
the appellate Court. In present matter, sentence of respondent
No. 7 was suspended by the appellate Court on 11.05.2015. It
was reduced to three months by the appellate Court on
13.10.2015. Thus, conviction with an imprisonment for not
less than two years on 24.04.2015 at the most could have
prevailed beyond 11.05.2015 & up to 13.10.2015. After
13.10.2015, legally even on 24.04.2015, conviction of
Respondent No. 7 was/is for three months only. In other
words, disqualification which arose automatically by operation
of law on 24.04.2015 could have continued at the most only up
to 13.10.2015 and not thereafter. Disqualification as
prescribed, ceased to operate after 13.10.2015.
22. In the case of Election Commission of India vs.
Bajrang Bahadur Singh & Ors., (supra), relied upon by Shri
Dhande, learned counsel, the Hon'ble Apex Court in paragraph
33 states that seat of such a Member who is convicted, becomes
vacant by operation of law, Article 192 only prescribes the form
and stipulates the procedure to ascertain whether such
legislator had incurred disqualification. The said Article does
not provide for removal of Member from Legislature by an
action of Governor. The observations of the Hon'ble Apex
Court in paragraph 34 of this judgment show that in certain
cases, disqualification may cease to operate. Seat becomes
vacant by operation of law and only obligation upon the
Governor is to decide whether legislator has incurred any one
of the disqualifications. The legislator, who acquires
disqualification ceases to be a Member of Legislature with effect
from the date of acquisition to disqualification. In paragraph
38, it is observed that cessation of disqualification cannot put
such a person back in Legislature without his being elected
once again. It is mentioned that such a person is entitled to
contest any election, the moment disqualification factor cease
to exist as disqualification is co-terminus with disqualifying
event. The discussion in paragraph 43 shows that there Section
9A and Section 10 of Chapter III of R.P. Act are looked into and
it is held that they limit the tenure of disqualification and make
it co-terminus with the currency of the event which creates a
disqualification. The distinction between the incurring of
disqualification by operation of law and the initiation of steps
towards filling up of vacancy demonstrated by the Hon'ble Apex
Court in the case of Lily Thomas vs. Union of India & Ors.
(supra), was not required to be looked into by the Hon'ble Apex
Court in this judgment. The facts of this judgment show that
the respondent before the Hon'ble Apex Court viz. Bajrang was
elected on 06.03.2012. The Governor of U.P. on 29.01.2015
made a declaration under Article 192 of the Constitution that
Bajrang had incurred disqualification under Section 9A of the
R.P. Act, as he had entered into four contracts with State of
U.P. in the year 2013. On 17.02.2015, the Secretariat of
Legislative Assembly declared his seat vacant and on
10.03.2015, Election Commission of India proceeded to fill in
that vacancy. Bajrang filed Writ Petition on 13.03.2015 and
assailed the decision of the Governor dated 29.01.2015. He
also sought stay of Bye-Election. High Court at Allahabad
granted that stay. In Special Leave Petition, the Hon'ble Apex
Court stayed that order of High Court. The later developments
show that on 30.03.2015, the Hon'ble Apex Court transferred
writ petition filed by Bajrang to itself. The Hon'ble Apex Court,
however, kept in abeyance notification dated 17.03.2015 issued
by the Commission under Section 150(1) of the R.P. Act, to fill
up said vacancy.
23. In paragraph 17, the Hon'ble Apex Court holds that
a person aggrieved by the decision of the Governor under
Article 192 must approach the High Court within a period of
eight weeks and his challenge must be heard by at least two
Judges and disposed of within a further period of eight weeks.
This time limit was imposed to reconcile the two apparently
conflicting constitutional obligations as noted by the Hon'ble
Apex Court in paragraph 69 of its judgment. One is, the High
Court to adjudicate such dispute and second is, the obligation
of the Commission to hold Bye-Election within a period of six
months. In present facts, we need not delve more into this
judgment.
24. Shri Dhande, learned counsel has also relied upon
the judgment in the case of Manoj Narula vs. Union of India &
Ors., reported at (2014) 9 SCC 77. There, the larger Bench of
the Hon'ble Apex Court has considered the case of Lily Thomas
vs. Union of India & Ors., (supra) in paragraph 20, while
commenting upon said judgment, the fact that seat
automatically falls vacant has been taken note of. We have
noted the reasons which prompted Hon. Apex Court to quash
sub-section (4) of Section 8 of R.P. Act. In the light of these
reasons, Section 8(4) which carved out a saving in case of
sitting Members of Parliament or State Legislature and fixed a
later date for their disqualification to take effect, is held to be
beyond powers conferred on the Parliament by the
Constitution. In paragraph 21, larger Bench (Hon'ble four
Judges) held that a person convicted for particular categories of
criminal activities is found by the Parliament unfit to function
as Representative of People. The provision is found salutary,
deterrent, necessary to prevent criminal elements from holding
public office thereby preserving probity of representative
government.
25. Respondent No. 7 has relied upon the judgment in
the case of Baby Samuel vs. Tukaram Laxman Sable & Ors.,
(supra). There, the Hon'ble Apex Court has in paragraphs 7 &
8 found that because of disqualification, the appellant before it
had lost the office of Councillor and also the office of the
President of Municipality. As the State Government did not
pass any orders on his stay petition, the Collector notified and
held further election to the office of the President wherein one
Shri Sable got elected. The Hon'ble Apex Court noticed that his
election was consequence of removal/ disqualification of the
appellant. Once the order of removal/ disqualification was set
aside by the Government, the appellant is entitled to be put
back in the same position from which he was removed. The
Hon'ble Apex Court holds that the appellant should be restored
not only to Councillorship but also to the office of the
President. Shri Sable was elected as the President in the
vacancy caused by removal/ disqualification of the appellant
and his election falls to ground once disqualification of the
appellant was removed.
26. In present matter, the disqualification was removed
on 13.10.2015 and even if we accept that seat of Respondent
No. 7 had become vacant on 24.04.2015, no vacancy was
declared and no Bye-Election has been held. Hence, after
13.10.2015, Respondent No. 7 whose disqualification is wiped
out from its inception, is restored back to his seat as legislator
from Umred Constituency. Had there been a declaration of
vacancy & a bye-election, may be the challenge to that bye
election would have been essential. But we are not required to
dwell upon this contingency in present matter. In this matter,
We have not found it necessary to delve on all the precedents.
But suffice it to note that the distinction between a
representative suffering the complete disqualification &
therefore, the disqualification ceasing to operate in his case on
one hand; and the other representative who succeeds in legally
getting the disqualification expunged through adjudication is
not obliterated by any of the judgments of Hon. Apex Court.
27. In view of this, we are not in a position to accept
the contention of Shri Sunil Manohar, learned Amicus or Shri
Dhande, learned counsel that the subsequent acquittal of
Respondent No. 7 is irrelevant.
28. Here, the seat was not declared vacant and no Bye-
Election to fill in that vacancy has been held. Keeping in mind
these facts, it follows that after the disqualification is expunged
by operation of law, Respondent No. 7 is reinstated & restored
back to his seat again on 13.10.2015.
29. Section 8(3) of the Representation of the People
Act, 1951, reads as under :
"8(3). A person convicted of any offence and
sentenced to imprisonment for not less than two years
[other than any offence referred to in sub-section (1)
or sub-section (2)] shall be disqualified from the date
of such conviction and shall continue to be
disqualified for a further period of six years since his
release.]"
30. Thus, the person like Respondent No. 7 stands
disqualified because of mandate of said provision from the date
of his conviction and very same disqualification could have
continued for a further period of six years after his release.
Thus, disqualification is not only for the current tenure but
also for a period of six years after his release from prison. It is,
therefore, a single or composite disqualification which with its
two wings covers existing tenure and also period of six years
after release. In view of reduction in sentence of Respondent
No. 7 on 13.10.2015, it is apparent that later field of
disqualification i.e. its continuation for a period of six years
after his release from prison does not spring into life. He was
never put in prison because of suspension of his sentence by the
appellate Court on 11.05.2015. Hence, he cannot be subjected
at all to later part of disqualification i.e. to continuation of
disqualification. As the disqualification is composite i.e. single,
it can not be subdivided & only one of its wings can not
operate. Since respondent no. 7 is not expected to suffer its
later part, it is more than obvious that he also cannot be
subjected to its earlier part. Disqualification has to operate
either entirely or then, not at all. The conclusion is, therefore,
after 13.10.2015, it is not possible legally to view Respondent
No. 7 as a legislator who was disqualified at any time in past.
31. The order of the Division Bench of this Court in Writ
Petition No. 4975 of 2015 before this Court noted supra is
dated 22.09.2015. Communication sent by respondent no. 1
to the office of Hon. Governor alleged to be its opinion &
hence, binding on the Hon. Governor by the petitioner is dated
21.09.2015. This communication is not disclosed to this Court
on 22.09.2015 as "opinion" already forwarded to the Hon'ble
Governor. On the contrary, election commission on that day
undertook to tender its opinion within three weeks. The State
in this backdrop made a statement that the office of the
Governor would decide the question at the earliest, after its
receipt. Accepting these mutually complimentary statements,
that writ petition was disposed of on 22.09.2015. Within
stipulated period of said three weeks, no such opinion is
tendered by the respondent no. 1, but in the Criminal Appeal
No. 133 of 2015, the Sessions Court, Nagpur brought down the
imprisonment of respondent No. 7. Since that date i.e.
13.09.2015, his case went out of the scope of disqualification
provision. No bye-elections were announced till then and it is
in this position that office of the Governor sought opinion of
respondent No. 1. The chronology shows the importance of the
later developments. A constitutional authority in the light of
these events, was persuaded to solicit the opinion of other
constitutional authority to comprehend the exact implications
of fats prevailing as on the date on which it was supposed to
reach its finding for the first time. The petitioner himself
accepts that till then the Governor had not taken any decision.
Hence, in this matter, the issues about status of communication
dated 21.09.2015 or effect of its nondisclosure or non-
production all pale into insignificance as the Hon'ble Governor
had not applied mind to the controversy before 22.09.2015.
The petitioner himself obtained an order in writ petition which
at the most expected his office to reach the decision in time
bound manner. He could not have applied mind without
having on record an opinion from respondent No. 1 touching
all the facets of the controversy. Only an informed decision of
respondent No. 1 may have to be treated as binding on the
office of the Hon'ble Governor. Hence, efforts made by that
office to procure an informed and complete opinion from
respondent No. 1 - Election Commission is nothing but a step
towards reaching a conscious and just decision. Such a step or
exchange of thoughts between the two authorities which is
aimed at facilitating the arrival of right solution to the problem
cannot and does not amount to review at all. Though the
respondents have not specifically dealt with it, for these
reasons, the argument of Shri Dhande, learned counsel that the
office of Governor has embarked upon an exercise of review
vide its communication dated 16.11.2015 is unsustainable.
32. However, between 24.04.2015 and 13.10.2015, in
the light of law as explained by the Hon'ble Apex Court,
Respondent No. 7 had automatically stood disqualified. He
could not have functioned as a Member of Legislative Assembly
between these two dates. Had the machinery expected by the
communications/ letters dated 07.08.2013 and 13.10.2015
been in place, the situation could have been otherwise. Hence,
it is absolutely necessary in public interest to direct respondent
Nos. 1 to 4 to provide the necessary machinery so that the
purity of democracy and administration is never polluted. The
letter dated 13.10.2015 produced at Annexure-I with the
petition, sent by the Election Commission of India to the Chief
Secretary of State of Maharashtra and to respondent Nos. 1 to
4, speaks for itself. We, therefore, direct Respondent Nos. 2
and 3 to provide necessary mechanism and procedure as
stipulated therein within 12 weeks from today, if it is not so
already provided.
33. Thus, challenge in present writ petition to
continuation of Respondent No. 7 as Legislator from Umred
Constituency is hereby dismissed. However, Respondent Nos. 1
to 4 are directed to see that necessary mechanism and
machinery is in force as per communication dated 13.10.2015
at Annexure-1 with the petition within a period of 12 weeks
from today.
34. Writ Petition is thus partly allowed by making rule
absolute accordingly. However, in the facts and circumstances
of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
