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2012 DIGILAW 339 (UTT)

GURDEEP SINGH CHAUHAN v. STATE OF UTTARAKHAND

2012-07-02

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

body2012
JUDGMENT (Per : Sudhanshu Dhulia, J. (Oral) Petitioner, by means of this public interest litigation, has sought a writ, order or direction in the nature of mandamus commanding respondent no. 3 i.e. Central Bureau of Investigation, New Delhi to conduct a thorough inquiry in respect of offences and illegalities committed by respondent no. 6 in connivance of respondents no. 7 and 8. 2. It is alleged that respondent no. 7, who was an elected member of the State Legislature from Sitarganj constituency of the State of Uttarakhand, resigned on 23.5.2012 and, now on the said vacant seat, the present Chief Minister of the State of Uttarakhand is contesting a by-election as he has to fulfill the mandatory requirement of the Constitution of India under Article 164(4), which is to become a member of the State Legislature within six months from the date of taking oath and affirmation of his office. Allegations are that resignation of respondent no. 7 has been in violation of the Constitution and laws, and it has been done for extraneous purposes. It is alleged that, inter alia, a sum of Rs. ten crore were given to the sitting MLA Sri Kiran Mandal to procure his resignation and get the assembly seat of Sitarganj declared “vacant”. 3. In other words, therefore, there is a challenge to the manner in which the resignation of respondent no. 7 was done or procured and consequently there is also a challenge to the whole election exercise which is presently underway for the Sitarganj Assembly Constituency. 4. We may also note that in the State of Uttarakhand there is a unicameral legislature which is the “Vidhan Sabha” and therefore the only route to the assembly is by contesting a direct election. 5. There are two aspects of this matter. First is that the resignation tendered by respondent no. 7, which the petitioner alleges, has not been accepted by the Speaker of the House in terms of the provisions contained under article 190 of the Constitution of India, and the second would be the alleged transaction of money which has changed hands for the purposes of getting a sitting MLA resign and thereby declaring “vacant” the “Sitarganj” assembly seat. 6. Article 190 of the Constitution of India reads as under: “190. 6. Article 190 of the Constitution of India reads as under: “190. Vacation of seats.—(1) No person shall be a member of both Houses of the Legislature of a State and provision shall be made by the Legislature of the State 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 of the Legislatures of two or more States specified in the First Schedule and if a person is chosen 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 person’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 Sates. (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 becomes vacant: Provided that in the case of any resignation referred to in the sub-clause (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 a 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.” 7. Emphasis of the petitioner is on clause (3)(b) of the said article and the proviso, which states that if a member of a House of the Legislature of a State resigns his seat by writing under his hand addressed to the Speaker and his resignation is accepted by the Speaker, his seat shall thereupon becomes vacant. 8. However, Mr. Harsh Veer Pratap Sharma, learned Counsel for the petitioner, has emphasized the aforementioned proviso and has argued that under the given circumstances, in which the resignation was tendered, it was necessary for the Speaker of the House to have conducted an enquiry before accepting such a resignation and, particularly, in light of the fact that there are, now, allegations of transaction of money, this resignation is not a resignation as contemplated under article 190 of the Constitution of India, as it is not a voluntary resignation! 9. Mr. Rakesh Dwivedi, learned Senior Advocate, who represents the State of Uttarakhand in the present matter, has argued that the writ petitioner before this Court is neither by the person who has tendered the resignation nor by the alleged “whistleblower” who in a subsequent press conference has alleged such transaction of money as a consideration for the said resignation. The petitioner is simply a person who says that he is an electorate of Sitarganj constituency, where the by-election is going to take place, which is Sitarganj. Moreover, it is not a case where the resignation was handed over to the Speaker by some other person and, therefore, it was necessary for the Speaker to have verified the signatures or to have enquired about the veracity of the resignation letter. There was also no information or any material before the Speaker, which is contemplated under the proviso, which would have necessitated an enquiry by the Speaker, before accepting the resignation. But here it is a case in which an elected member of the State Legislature comes before the Speaker and tenders his resignation under his hands and in person. He has nowhere denied that he had not resigned. Therefore there was no occasion for an enquiry. 10. But here it is a case in which an elected member of the State Legislature comes before the Speaker and tenders his resignation under his hands and in person. He has nowhere denied that he had not resigned. Therefore there was no occasion for an enquiry. 10. Learned Senior Counsel Sri Dwivedi has also placed before this Court two judgments one of Madhya Pradesh High Court and the other from Chhattishgarh High Court i.e. Vikram Singh v. Shri Ram Ballabhji Kasat and others reported in AIR 1995 MP 140 and B.N. Bajpai v. Ramdayal Uike and others reported in 2001 (1) CGLJ 238 respectively, wherein under the similar situation, the Courts were called upon, inter alia, to decide the legality of such an acceptance of the resignation. The Courts were of the view that it is not proper to order an enquiry in every matter, unless there was some material before the Speaker for holding such an enquiry. The Division Bench of Madhya Pradesh High Court in an almost similar situation while dealing with the aspect of the enquiry to be conducted by the Speaker in the event of a resignation of a sitting member of the House had this to say : “There was acceptance in this case as we have already held. We do not think an enquiry is required in every case by the proviso to Article 190(3) (b). The provision empowers the Speaker to make such enquiry as he thinks fit. If he is satisfied that the resignation is not voluntary or genuine from information received and after making such enquiry as he thinks fit, he shall not except the resignation. When the second respondent personally tendered the resignation to the Speaker and assured him about the voluntary nature, the Speaker could have had no doubt on that score. It is not alleged that the Speaker had any information which could create a doubt in his mind. Nevertheless, he put necessary questions and elicited answers from second respondent. The procedure adopted by the Speaker constitutes “enquiry”. The provision does not stipulate any particular type of enquiry. The nature of enquiry depends on facts and circumstances of each case. We do not think in the facts and circumstances of the case, any further enquiry was required or necessitated. It was for the Speaker to judge the situation. The procedure adopted by the Speaker constitutes “enquiry”. The provision does not stipulate any particular type of enquiry. The nature of enquiry depends on facts and circumstances of each case. We do not think in the facts and circumstances of the case, any further enquiry was required or necessitated. It was for the Speaker to judge the situation. His judgment cannot be said to be perversed or unreasonable.” 11. There was another fact placed before this Court, which is admitted to both the parties, which is that subsequent to submission of the resignation and acceptance thereof, the seat became vacant and a by-election on the said seat has also been notified by the Election Commission on 8.6.20 12 where nominations have also been filed and polling is scheduled on 8.7.2012, i.e. in less than a week from today. The argument here is that since the notification for the by-election has already been issued an interference by this Court would interfere with the process of election which is underway. The learned counsel would therefore argue that any interference at this stage would be against the ratio laid down by the Hon’ble Apex Court in N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others reported in 1952 AIR SC 64 and Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others reported in 1978 1 SCC 485. 12. We are of the considered view that as regards the first aspect i.e. regarding the acceptance of the resignation by the Speaker and the legality of it, we are not inclined to embark upon this exercise at all, on the basis of the material placed before this Court and we are of the view that there was no plausible reason for the Speaker to have ventured into an enquiry in the matter. Moreover, in the peculiar facts and circumstances of the case, when election process is already on we do consider it also prudent to venture into this exercise, even assuming that it would be a judicially feasible exercise. 13. There is but the second aspect of the matter though, which is a prayer by the petitioner to hold an enquiry into the alleged transaction of money. 13. There is but the second aspect of the matter though, which is a prayer by the petitioner to hold an enquiry into the alleged transaction of money. On this, the learned Senior Advocate appearing for the respondent has urged that it is not a stage where any interference is required by the Court for the reason that no FIR was lodged by the petitioner and assuming that the petitioner went to the Senior Superintendent of Police, it cannot amount to lodging of an FIR. Moreover, assuming, for the sake of argument, that the petitioner made efforts to lodge an FIR and it was not registered and then only he approached the SSP and even assuming that no action was taken by the SSP, still there is a remedy available to the petitioner to move an application before the concerned Judicial Magistrate, under provisions of Code of Criminal Procedure, who is empowered to order enquiry or an investigation. This remedy the petitioner has not exhausted and hence the writ petition is in any case premature. 14. It has been urged before this Court by the Senior Counsel appearing for the respondent that since the petitioner has not adopted the procedure provided under the Code of Criminal Procedure, he was not entitled to approach the High Court straightaway by filing the present writ petition seeking a direction from this Court to conduct an investigation by the Central Bureau of Investigation. Learned Senior Counsel has relied upon a judgment of the Hon’ble Apex Court in All India Institute of Medical Sciences Employees’ Union (Regd.) v. Union of India and others reported in (1996) 11 SCC 582, where under similar circumstances the Hon’ble Apex Court had held that it is not proper to straightaway approach the High Court without first availing the remedies available under the Code of Criminal Procedure, as referred above. 15. Attention of this Court has also been drawn to another important aspect which is the letter (stated to be an FIR) dated 26.6.2012. Immediately after sending this letter to concerned SSP by post on 26.6.2012 the petitioner has filed the writ petition on 30.6.2012. In other words, no effort was made by the petitioner to wait and see as to what was the outcome of the letter before the SSP and he has rushed to this Court. 16. Immediately after sending this letter to concerned SSP by post on 26.6.2012 the petitioner has filed the writ petition on 30.6.2012. In other words, no effort was made by the petitioner to wait and see as to what was the outcome of the letter before the SSP and he has rushed to this Court. 16. Considering all the aspects urged before us and the reply given by the other side, we do not consider this to be a fit case for interference at this stage for the reasons stated above. Writ petition is hereby dismissed. 17. However, petitioner has all the liberty to go before any other forum available to him under the law which has also been indicated above, for redressal of his grievance. It is also made clear that any observations, which this Court has made, are only for the purposes of the present writ petition and the same will have no bearing nor will it prejudice any of the authorities, in case the petitioner chooses to approach them. 18. Writ petition is accordingly dismissed. 19. No order as to costs.