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2015 Supreme(All) 493
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : DINESH MAHESHWARI AND RITU RAJ AWASTHI, JJ.
UMA SHANKER SINGH ....Petitioner
Versus
PRINCIPAL SECRETARY TO HIS EXCELLENCY THE GOVERNOR OF U.P. LUCKNOW AND OTHERS ....Respondents
(Civil Misc. Writ Petition (Misc. Bench) No. 697 of 2015, decided on 28th May, 2015)
Counsel :
Akshat Srivastava, Avishesh Kumar Singh, Bharat Singh, Mudit Agarwal and Vibhanshu Srivastava for the Petitioner; Abhinav N. Trivedi, Anish Kumar Gupta, Anupam Mehrotra, Brijesh Kumar Shukla, Dr. L.P. Mishra, Jai Narayan Pandey and V.K. Dubey for the Respondents.
Headnote:Constitution of India, 1950—Articles 191(1) (e), 192 and 226—Representation of People Act, 1951—Section 9—U.P. Lokayukta and Up-Lokayuktas Act, 1975—Section 10—M.L.A.—Post-election disqualification—Determination of—Petitioner elected as MLA—Disqualification by Governor order—Government Contractor—Lokyukta allegedly admitted that complaint for investigation and issued notice to the petitioner in terms of Section 10 of 1975 Act—Contracts subsequently entered into after election of the petitioner as MLA—Person making reference to Governor has not been joined as a party thereto—Not accepted by the Court—Court further viewed that petitioner has a legal right to seek judicial review of the orders passed against—Lokyukta could not conduct investigation and state anything suggestive of his finding even in a matter which is in the exclusive domain and jurisdiction of the Governor—If Lokyukta was having 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 or any other complaint covered by the 1975 Act—To the extent Lokyukta purportedly proceeded to collect the evidence then to state his own impressions not approved—Lokayukta required only to forward the matter directly to the Governor for appropriate proceedings—Impugned 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—Exclusive jurisdiction to consider post-election disqualification of MLA as per Article 192 of the Constitution is of the Governor and Hon’ble Governor is to act on the opinion of the Election Commissioner—Entire matter deserves re-consideration—Direction issued. [Paras 44 to 77]
Result; Order Accordingly.
Preliminary :
Hon’ble Dinesh Maheshwari, J.—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 6.3.2012. 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 29.1.2015, 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 18.2.2014 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.
2. 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.”
3. 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 18.2.2014 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 29.1.2015, related with the operation of the relevant provisions of law, as also the facts of the case.
4. 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:
5. 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’).
6. The aforesaid complaint remained pending wi
