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2016 DIGILAW 19 (MEG)

Agnes Kharshiing v. State of Meghalaya

2016-09-01

DINESH MAHESHWARI, S.R.SEN

body2016
JUDGMENT : Dinesh Maheshwari, J. The petitioner has filed this writ petition seeking to raise the issue of holding of dual posts by the private respondents herein as Members of the Legislative Assembly as also as Members of the respective District Councils (MDCs). 2. We had heard learned counsel for the petitioner at the motion stage at excessive length yesterday, particularly on our basic queries as regards joinder of parties as also frame of this petition when it was found that the petition was firstly not in accord with the Full Bench decision of this Court dated 23.08.2013 in PIL No.3 of 2014 and then, even the relief as claimed in relation to Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) (Amendment) Act, 2015 ['the Amendment Act of 2015'] was baseless and rather standing in contradiction to the other submissions sought to be made. 3. After having noticed such flaws and indicating our tentative opinion, we deferred the matter for today, while leaving it open for the learned counsel for the petitioner to consider his option, with the following order:- "31.08.2016 The petitioner has filed this writ petition seeking to raise the issue of holding of dual posts by the private respondents herein as Members of the Legislative Assembly as also as Members of the respective District Councils (MDCs). The petitioner had earlier filed a petition, being PIL No.3 of 2014, that was finally disposed of by a Full Bench of this Court on 23.08.2016, taking note of the subsequent events including resignations of all but one the private respondents as MDCs and for the decision of the Hon'ble Governor dated 31.05.2016 qua the other remaining private respondent. However, the Full Bench clearly observed as regards the order passed by the Hon'ble Governor dated 31.05.2016 that if the same is sought to be questioned, closure of proceedings in the said petition, by itself, shall not be of any impediment in taking up such proceedings, but strictly in accordance with law. The Full Bench considered the basic cause of the said petition not surviving and thus, left the question earlier formulated by the Division Bench as redundant. The Full Bench considered the basic cause of the said petition not surviving and thus, left the question earlier formulated by the Division Bench as redundant. The Full Bench, inter-alia, observed as under:- "To sum up, we may observe that basic cause of action of this petition does not survive for two reasons: One, because of resignation of respondents No.6 to 9 and respondents No.11 to 13 as MDCs; and second, for the decision of the Hon'ble Governor dated 31.05.2016 qua the respondent No.10. Hence, in the given circumstances, the questions referred in the order dated 09.10.2015 could only be considered redundant, not calling for determination in this petition. So far alternative submissions made by the learned counsel for the petitioner for withdrawal with permission to file a fresh petition are concerned, suffice it to say that if at all the order dated 31.05.2016 as passed by the Hon'ble Governor is sought to be questioned, closure of the proceeding in this petition, by itself, shall not be of any impediment in taking up in such proceedings, but strictly in accordance with law. Subject to the observations foregoing, when we find nothing further to be adjudicated or answered herein, this petition stands disposed of." The petitioner has, now, filed the present one as a fresh petition in relation to the issue of holding dual offices. Subject to the observations foregoing, when we find nothing further to be adjudicated or answered herein, this petition stands disposed of." The petitioner has, now, filed the present one as a fresh petition in relation to the issue of holding dual offices. Having examined the frame of this petition and the pleadings taken, we have noticed that the respondents No.9 to 12 and 14 to 16 herein are the persons who had earlier been respondents No.6 to 9 and respondents No.11 to 13 in PIL No.3 of 2014 and regarding them, the Full Bench of this Court observed as under:- "So far the respondents No.6 to 9 and respondents No.11 to 13 are concerned, who are shown to have resigned as MDCs on or about last week of September, 2015, in our view, it is difficult to find a surviving cause of action qua them, particularly when the matter of their resignation is fait accompli and there appears hardly any reason now to take up any question in regard to holding of different offices by the said respondents in this petition." We have drawn attention of the learned counsel for the petitioner to the aforesaid passage in the decision of the Full Bench in PIL No.3 of 2014 and have expressed reservation that as regards the persons who had already resigned as MDCs, the Full Bench of this Court had already said that there was hardly any reason now to take up any question of holding of different offices by them and hence, it would not be proper for this Court to permit such an issue relating to the said persons to be re-opened in this petition. So far respondents No.17 and 18 are concerned, who were not the party in PIL No.3 of 2014, the position nevertheless remains the same, once it has been indicated that they too had already resigned as MDCs. Faced with this query, learned counsel for the petitioner submitted that the basic issue raised in this petition is regarding incurring of disqualification by the persons concerned for the reason of their holding offices of Members of Legislative Assembly as also MDCs at the same time; and such a question, in any case, is being raised in relation to the respondent No.13, in whose relation, the Hon'ble Governor has passed the order dated 31.05.2016 and who was respondent No.10 in PIL No.3 of 2014. In the totality of circumstances, prima facie, we see no reason to entertain this petition so far respondents No.9 to 12 and 14 to 18 are concerned. Having said so, we have posed the second query to the learned counsel for the petitioner that what are the grounds and even logic for the petitioner seeking striking down of the Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) (Amendment) Act, 2015, whereby Entry 9 in the Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) Act, 1972 was deleted, particularly when the said Entry 9 is even otherwise alleged to be invalid. It is noticed that in paragraph 12 of this petition, it has been suggested that the Amendment Act of 2015 was brought during the pendency of the earlier PIL No.3 of 2014 and thus, according to the petitioner, it was brought "only for the purpose of undermining the judicial pronouncement and the same is liable to be struck down as being unconstitutional, illegal, ultra vires and void". We have also posed the query to the learned counsel for the petitioner as to how the Amendment Act of 2015 could be said to be ultra vires? Whether it is beyond the legislative competence or is offending any provision of the Constitution? Learned counsel for the petitioner could not answer in affirmative to this query but, would submit that the said enactment has been questioned because it was passed during pendency of the earlier PIL No.3 of 2014. Prima facie, we find such a submission not making out a case for striking down the Amendment Act of 2015; and challenge to the said Amendment Act of 2015 appears to be otherwise standing in conflict and even contradictory to the other grounds sought to be taken in this petition. Having said so, and while leaving it open to the learned counsel for the petitioner to consider his option, we defer consideration of this matter today. List this matter tomorrow i.e., 01.09.2016." 4. Having said so, and while leaving it open to the learned counsel for the petitioner to consider his option, we defer consideration of this matter today. List this matter tomorrow i.e., 01.09.2016." 4. Today, learned counsel for the petitioner submits that he has conferred with the petitioner on various legal aspects related with this matter but, according to the learned counsel, the petitioner herein carries the view that Entry 9 in the Schedule to the Prevention of Disqualification (Members of the Legislative Assembly of Meghalaya) Act, 1972 ['the Act of 1972'], as then existing, was ultra vires; and the Amendment Act of 2015, deleting the said Entry 9, was also ultra vires; and, according to the petitioner, the said Entry 9 is required to be declared invalid and as a consequence, holding of dual offices by all the respondents is required to be declared illegal by this Court. 5. We find the submissions on behalf of the petitioner unacceptable for the simple reasons as follows:- (i) So far Entry 9 in the Schedule to the Act of 1972 is concerned, the same was deleted by the Amendment Act of 2015. The petitioner has always contended that the said Entry 9 in the Schedule to the Act of 1972 was invalid and was offending the constitution. When the same offending Entry 9 has been deleted by the Amendment Act of 2015, we see no reason as to why the vires of Amendment Act of 2015 be at all taken up for enquiry at the instance of the petitioner. Obviously, challenge to the Amendment Act of 2015 by the petitioner cuts-across and contradicts with the submissions sought to be made in this petition against the said Entry 9 in the Schedule to the Act of 1972. (ii) Secondly, the only ground for challenging the Amendment Act of 2015 in this petition is that the said Amendment Act of 2015 was passed during the pendency of PIL No.3 of 2014. The suggestion by the petitioner that the said Amendment Act of 2015 was unconstitutional for having been enacted during pendency of PIL No.3 of 2014 cannot be accepted because mere pendency of the said PIL could not have operated against the competence of the State legislature to enact any such law. Therefore, on the ground as suggested by the petitioner, the Amendment Act of 2015 cannot be declared ultra vires the Constitution. Therefore, on the ground as suggested by the petitioner, the Amendment Act of 2015 cannot be declared ultra vires the Constitution. (iii) Thirdly, it has not been pleaded by the petitioner that if the said Amendment Act of 2015 is beyond the legislative competence of the Meghalaya State Legislature or it offends any provision of the Constitution of India. 6. So far the respondents No.9 to 12 and 11 to 16 herein are concerned, who had already resigned, we have made it clear in our order passed yesterday i.e., 30.08.2016 that qua them, the matter already stands concluded by the Full Bench decision on 23.08.2016; and there is no reason to re-open the same. The same position applies to the respondents No.17 and 18 too i.e., the persons who had already resigned. 7. When we find that this petition seeking to question the holding of dual offices by the respondents has been framed in such a manner that one part of it concerning the respondents No.9 to 12 and respondents No.11 to 18 is not open for adjudication in view of the Full Bench decision dated 23.08.2016; and when we further find that another part of the petition seeking to question the Amendment Act of 2015 is not only baseless but even contradicts the other pleadings and contentions; and when we yet further find it difficult to segregate the unnecessary and contradictory matter from the other issues, even striking out the unnecessary and contradictory pleadings does not appear to be an available course in this matter. Hence, we have no option but to decline to entertain this petition as framed. 8. It goes without saying that herein, we have not pronounced on the issues that have been left open by the Full Bench in the order dated 23.08.2016 and on the other issues relating to this matter, which may be raised by any person in accordance with law. Even at the cost of repetition, we make it clear that in our view, this petition is a defective one; and is being dismissed only for its frame and for the pleadings which are unnecessary and which are likely to prevent fair adjudication of the real issues; and we have not pronounced on merits of the other issues either way. 9. The petition as framed is, therefore, dismissed subject to the observations foregoing.