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2001 DIGILAW 47 (CHH)

B. N. BAJPAI v. RAMDAYAL UIKE

2001-04-19

R.S.GARG, W.A.SHISHAK

body2001
ORDER As per Hon'ble Shri R.S. Garg, J. 1. The petitioner, a practising advocate interalia alleging that he being interested in the Constitution of India and the happenings of social and political events in the State of Chhattisgarh is entitled to file this Pro-bone-Publico. 2. The petitioner submits that the respondent No.1, elected M.L.A. of the legislative constituency, Marwahi, district Bilaspur, had resigned between last week of December, 2000 and first week of January, 2001 from his office. The respondent No.2 had accepted the resignation tendered by the respondent No.1 in servile manner without taking the attending circumstances, intent and object of the Constitution, while the respondent No.2 was obliged to take into consideration the attending circumstances which persuaded the respondent No.1 to tender his resignation, the intention behind tendering the resignation and the object behind Constitutional Provisions. It is further submitted that in the normal course of business, the respondent No.3, the Election Commission, after receipt of the information from the respondent No.2 about the vacancy of the seat earlier occupied by the respondent No.1, declared by election. The petitioner submits that the Election Commission has declared the programme for by election. The petitioner submits that the respondent No.1 during the course of his election campaign, before his election from Marwahi constituency, must not have made a promise to his electors that on one fine morning he would tender his resignation from the office of M.L.A. and as such it is legitimate to presume that he must have assured his electors that he would work for them. According to the petitioner, acceptance of the resignation of the respondent No.1 would burden the public exchequer of additional expenses on by election. 3. The petitioner submits that from the object and the scheme of the Constitution of India, it would clearly appear that the framers of the Constitution must never have anticipated that an elected M.L.A. just for nothing out of his whim-caprice and arbitrariness, would resign from the office thereby playing fraud with the electors and burden the public exchequer of unnecessary additional expenses for by-election. The petition further says that the submission of the resignation by respondent No.1 and its acceptance by respondent No.2 is a result of erroneous interpretation of Article 190 (3) (b) of the Constitution of India. The petition further says that the submission of the resignation by respondent No.1 and its acceptance by respondent No.2 is a result of erroneous interpretation of Article 190 (3) (b) of the Constitution of India. According to petitioner, the word 'or' has been inadvertently used between clause (a) and clause (b) of Article 190(3); while in-fact the said word 'or' must be read as 'and'. The petition says that the Constitutional Provisions and intent of the Constitution clearly shows that the word 'or' is required to be read as 'and'. 4. According to the petitioner, Speaker of the assembly has no authority to accept such resignation which is against the mandate of the electors and the provisions of the Constitution. According to the petitioner, tender of his resignation was immoral and acceptance was unconstitutional. 5. The petitioner submits that as the respondent No.1 elected M.L.A. did not suffer with any disqualifications enumerated in Article 191 of the Constitution of India, he could not tender his resignation and as the respondent No.1 was not disqualified under Article 191 of the Constitution of India, the Speaker was not entitled to accept the resignation simply reading the word 'or' as disjunctive. The petitioner submits that tender of resignation is unconstitutional and void ab-initio and is liable to be quashed. The petitioner has prayed for that the resignation of respondent No.1 be declared as void, the acceptance of the resignation by respondent No.2 be declared to be unconstitutional, be declared as null and void and the Marwahi State Assembly seat be declared to be not vacant and proposal for by-election be also quashed. 6. The petitioner appeared before us on 23-1-2001, was heard at length, but finding certain legal difficulties, the petitioner prayed for an adjournment, to accommodate the petitioner, we had adjourned the hearing of the petition to 7-2-2001. The petitioner was heard at length. 7. The petitioner submits that a member of the legislative assembly has no right to resign, firstly because the electors have no authority or right to recall him. The petitioner submits that resignation is lop sided ex-parte and is unconstitutional and as it has been tendered by respondent No.1 without taking the public in confidence which had elected him, the resignation in itself is bad. The petitioner submits that resignation is lop sided ex-parte and is unconstitutional and as it has been tendered by respondent No.1 without taking the public in confidence which had elected him, the resignation in itself is bad. It is also submitted that Constitutional provisions do not given any right to an elected M.L.A. for a period of five years, therefore, he is obliged and duty- bound to serve his electors and his office can be declared vacant only if the member of the legislative asembly suffers with some disqualifications and tenders his resignation and the resignation is accepted by the Speaker after due enquiry. The petitioner submits that the word 'or' must be read as 'and' because the Constitutional mandate requires such a reading. Referring 'to certain decisions of different Courts, petitioner submits that if the resignat,ion does not give any reason which persuaded the M.L.A. to resign, it must be held that there was no good reason for the M.L.A. to resign and in view of this fact the resignation tendered by M.L.A. would be bad. 8. Before referring to the arguments, it is held desirable that provisions of Article 190 and 191 of the Constitution of India are appreciated in their true perspective. Article 190 is to be found in part-VI of the Constitution of India. Part- VI of the Constitution relates to the States. Articles 190 and 191 of the Constitution of India read as under : "190. Vacation of seats - (1) No person shall be a member of both houses of the Legislature of a State and provisions shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both House of his seat in one house or the other. Vacation of seats - (1) No person shall be a member of both houses of the Legislature of a State and provisions shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both House of his seat in one house or the other. (2) No person shall be a member of the Legislature of two or more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States, then, at the expiration of such period as may be specified in rules made by the President, that persons's seat in the Legislatures of all such States shall become vacant, unless he has previously resigned his seat in the Legislatures of all but one of the States: (3) If a member of a House of the Legislature of a State (a) becomes, subject to any of the disqualifications mentioned in (Clause (1) or Clause (2) of article 191); or (b) (resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be,) his seat shall thereupon become vacant: (Provided that in the case of any resignation referred to in Sub-CI (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation). (4) If for a period of sixty days a member of House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant: Provided that in. computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days. 191. computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days. 191. Disqualification for membership - (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State: (a) (If he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;) (b) If he is of unsound mind and stands so declared by a competent court; (c) If he is an undischarged insolvent; (d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State or is under any acknowledgment of allegiance or adherence to a foreign State; (e) If he is so disqualified by or under any law made by Parliament. (2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Counsel of a State if he is so disqualified under the Tenth Schedule.)" 9. Sub-Article (1) of Article 190 of the Constitution of India provides that no person shall be a member of both Houses of the Legislature. Article 190 (2) provides that no person shall be a member of the Legislatures of two or more States. Article 190(3) is material for the purposes of this petition. Article 190(3) provides that in particular circumstances the seat of the House of the Legislature of a State shall become vacant. Article 190(4) further provides that if for a period of sixty days a member of a House of the Legislature of a State without permission of the House remains absent from all meetings thereof, the House may declare his seat vacant, provided that in computing the said period of sixty days, no account shall be taken of any period during which the House if prorogued or is adjourned for more than four consecutive days. 10. Present is not a case telling under the provisions of Article 190 (1), (2) or (4). The petitioner's argument is that sub-Article (3) of Article 190 must be read in its true perspective giving fullest respect to the intention of the framers of the Constitution. 10. Present is not a case telling under the provisions of Article 190 (1), (2) or (4). The petitioner's argument is that sub-Article (3) of Article 190 must be read in its true perspective giving fullest respect to the intention of the framers of the Constitution. Article 190(3) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 191, then, his seat shall there upon become vacant. In the alternative using the word 'or' as disjunctive, Article 190(3)(b) provides that if a member of a House of the Legislature of the State resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant. Article 190(3)(b) in itself is not absolute; it is ,controlled by the proviso appended to it which provides that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as the Speaker/Chairman thinks fit, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation. 11. From a perusal of Article 190(3)(b), it would appear that it gives a right to the elected M.L.A. to tender his resignation to the Speaker or the Chairman and if his resignation is accepted by the Speaker or the Chairman, after making inquiry, recording the findings that the resignation in voluntary and genuine, the seat shall become vacant. 12. At this stage, we would also be justified in referring to Article 56 of the Constitution of India which relates to term of office of the President. Article 56 reads as under : "56. Term of office of President - (1) The president shall hold office for a term of five years from the date on which he enters upon his office: Provided that (a) The President may, by writing under his hand addressed to the Vice-President resign his office; (b) the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in Article 61; (c) the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. (2) Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith be communicated by him to the Speaker of the House of the people. According to the Article 56, the President shall hold the office for a term of five years from the date on which he enters upon his office, but the President may, be writing under his hand addressed to the Vice-President can resign his office. Article 55 of the Constitution of India provides the manner of election of President of India. It would be apt to quote Article 156 of the Constitution of India which provides for the term of office of Governor. It reads as follows :156. Term of Office of Governor - (1) The Governor shall hold office during the pleasure of the President. (2) The Governor may, be writing under his hand addressed to the President, resign his office. (3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office: Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. According to Article 156, the Governor shall hold office during the pleasure of the President. The Governor may, by writing under his hand addressed to the President, resign his office. Governor of the State shall be appointed by the President by warrant under his hand and seal. It would also be necessary to refer to Article 101 of the Constitution of India which relates to vacation of seats by members of Parliament. It reads as under : 101. Vacation of seats - (I) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other. It reads as under : 101. Vacation of seats - (I) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other. (2) No person shall be a member both of Parliament and of a House of the Legislature of a State, and if a person is chosen a member both of Parliament and of a House of the Legislature of (a State), then, at the expiration of such period as may be specified in rules made by the President that person's seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State. (3) If a member of either House of Parliament(a) becomes subject to any of the disqualifications mentioned in Clause (1) or Clause (2) of Article 102, or (b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant: Provided that in case of any resignation referred to in sub-clause(b), if from information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation. (4) If nor a period of sixty days, a member either House of Parliament is without permission of the House absent from all meeting thereof, the house may declare his seat vacant: