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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • M.L.Sharma
  • M.C.Mandhotra
  • Inder Singh
Judges
  • H.S Thakur, J.
Acts
  • S. 3(d) of the H.P Legislative Members (Removal of Disqualifications) Act, 1971,
  • Disqualifications) Act, 1971 (hereinafter to be referred as the Act of 1971)
  • S. 103 of the Representation of the People Act, 1951.Petition dismissed.
  • S. 81 of the Representation of the People Act.
  • S. 3(d) of Removal of Disqualification Act.
  • Disqualifications) Act, 1971,
  • section is S. 3(d).
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • M.L.Sharma
  • M.C.Mandhotra
  • Inder Singh
Judges
  • H.S Thakur, J.
Acts
  • S. 3(d) of the H.P Legislative Members (Removal of Disqualifications) Act, 1971,
  • Disqualifications) Act, 1971 (hereinafter to be referred as the Act of 1971)
  • S. 103 of the Representation of the People Act, 1951.Petition dismissed.
  • S. 81 of the Representation of the People Act.
  • S. 3(d) of Removal of Disqualification Act.
  • Disqualifications) Act, 1971,
  • section is S. 3(d).
See more information ...
Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

The petitioner filed an election petition seeking a declaration that the respondent's election to the Himachal Pradesh Legislative Assembly from the 64 Gopalpur constituency was void. A notification calling elections was issued on April 16, 1982, nominations (including those of the petitioner and respondent) were filed on April 20, 1982, polling occurred on May 19, 1982, and counting and declaration of the respondent as elected was on May 21, 1982.

The respondent had been a Member of the Himachal Pradesh Vidhan Sabha from June 1977 until April 19, 1982, and had been appointed Chief Parliamentary Secretary effective May 9, 1980 (order dated June 11, 1980). The Assembly was dissolved on April 19, 1982. The petitioner alleged that on and after that date the respondent ceased to be a Member of the Assembly and became an employee holding an office of profit under the State, losing any protection from disqualification that might have existed; the respondent resigned the office on May 24, 1982.

The petitioner contended that the respondent therefore held an office of profit when he filed nominations on April 20, 1982 and when declared elected on May 21, 1982 and so was disqualified under Article 191(1)(a) of the Constitution. The respondent denied disqualification, asserting continuity in office under conventions and the view that an enactment of the Himachal Pradesh Legislature (the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971) excluded the office of Chief Parliamentary Secretary from disqualifying offices.

On the parties' pleadings, the court framed eight issues for determination and proceeded to hear and decide the petition.

Legal Issues Presented

  1. Whether the respondent was not entitled to hold the office of Chief Parliamentary Secretary to the Government of Himachal Pradesh from 19-4-82 till 24th May, 1982, the date on which he resigned?
  2. If issue No. 1 is proved, whether the office which the respondent held from 19-4-82 to 24th May, 1982, was an office of profit under the State of Himachal Pradesh and the protection given under Cl. (d) of S. 3 of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971, was not available to him?
  3. Whether the Election Petition is liable to be dismissed on the ground that it does not comply with the provisions as contained in S. 81 of the Representation of the People Act?
  4. Whether in view of the provisions contained in Cl. (d) of S. 3 of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971, the Election petition is not maintainable?
  5. Whether annexure ‘PA’ is not properly verified? If so, what is its effect?
  6. Whether in view of the fact that the petitioner in para 2 of the petition stated that “the petitioner, the respondent and a few others were validly nominated candidates left in the field” she is estopped to file the Election Petition?
  7. Whether the failure on the part of the petitioner to give a concised statement of particulars of office which was held by the respondent after 19-4-82 till 24th May, 1982, deserves the dismissal of the Election Petition?
  8. Relief.

Arguments of the Parties

Petitioner's Arguments

  • The respondent ceased to be a Member of the Assembly on April 19, 1982 when the Assembly was dissolved, and therefore could not continue as Chief Parliamentary Secretary.
  • Because only a Minister (under Article 164(4)) may continue for up to six months without being a member of the Legislature, a Chief Parliamentary Secretary is not covered by that protection and could not legally continue after dissolution.
  • From April 19, 1982 onward the respondent was effectively an employee holding an office of profit under the State and thus disqualified under Article 191(1)(a) at the time of filing nomination (April 20, 1982) and at the time of declaration (May 21, 1982).
  • The protection under Section 3 of the Himachal Pradesh Members of Legislative Assembly (Removal of Disqualifications) Act, 1971 ceased to be available to the respondent after April 19, 1982, according to the petitioner.

Respondent's Arguments

  • The appointment as Chief Parliamentary Secretary was not co-extensive with membership of the Assembly and was not revoked on dissolution; he continued to hold the office by virtue of constitutional practice, rules of procedure, and conventions applicable to a caretaker government.
  • The State Government (and Chief Minister) continued in office after the dissolution to discharge functions until the election and formation of a new government, and the respondent was part of that continuing government and performed ministerial-type duties.
  • The respondent asserted he did not draw salary as an employee, nor T.A./D.A., nor use government vehicle, and therefore could not be treated as a mere employee of the State.
  • Additional plea: even if he held an office of profit, Section 3(d) of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971 declares the office of Chief Parliamentary Secretary not to disqualify its holder, and therefore he was not disqualified under any law.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court based its analysis on the text of Article 191 of the Constitution (disqualification where a person holds an office of profit) and on the Himachal Pradesh statute (the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971), specifically Section 3(d) which expressly provides that the office of Chief Parliamentary Secretary shall not, by reason only of holding that office, disqualify a person for being chosen as, or for being, a member of the Himachal Pradesh Legislative Assembly.

Step-by-step reasoning as reflected in the opinion:

  1. The court acknowledged the petitioner's contention that the respondent ceased to be a member on dissolution and thus continued only as an office-holder of the Executive which might be an office of profit.
  2. However, the court observed that Section 3(d) of the 1971 Act exempts the office of Chief Parliamentary Secretary from being a disqualifying office for membership of the Himachal Pradesh Legislative Assembly.
  3. Given that legislative exemption, the court held that the respondent could not be said to be disqualified under Article 191 for holding the office of Chief Parliamentary Secretary, and therefore the respondent was entitled to hold that office from April 19, 1982 to May 24, 1982.
  4. Accordingly, the court decided Issue No. 1 (entitlement to hold the office after dissolution), Issue No. 2 (whether that office was an office of profit and whether protection under S.3(d) was unavailable), and Issue No. 4 (maintainability in view of S.3(d)) in favour of the respondent, on the statutory basis provided by the 1971 Act.
  5. On the remaining issues (3, 5, 6 and 7) the court found no merit in the contentions raised on behalf of the respondent (for example, the respondent's counsel had not shown how the election petition failed to comply with Section 81 of the Representation of the People Act; issues about verification and estoppel were not pressed or not shown to be valid). These issues were thus decided against the respondent according to the opinion text.
  6. Finally, applying these conclusions, the court concluded there was no merit in the election petition and ordered its dismissal with costs.

The court also directed the Registry to comply with the legal requirements under Section 103 of the Representation of the People Act, 1951.

Holding and Implications

Holding: The election petition was DISMISSED with costs.

Implications:

  • The direct consequence of the decision is that the petitioner's challenge to the respondent's election failed and the petition was dismissed; the opinion does not describe any broader legal changes or new precedent being established beyond applying the existing statutory exemption (Section 3(d) of the Himachal Pradesh Removal of Disqualifications Act, 1971).
  • The court's reasoning rests on the legislative declaration that the office of Chief Parliamentary Secretary is not a disqualifying office under the State enactment, and the opinion indicates no further or novel legal principle beyond that statutory application.
  • The Registry was ordered to take steps required by Section 103 of the Representation of the People Act, 1951, as a procedural consequence of this dismissal.

Note: This summary is confined strictly to the statements and determinations appearing in the provided opinion and does not add information beyond that text.

Show full summary ...

    Smt. Leela Devi v. Rangila Ram Rao .

    1. The petitioner has filed this election petition praying that the election of the respondent to the Himachal Pradesh Legislative Assembly from 64 Gopalpur constituency be declared as void.

    2. A few facts relevant for the decision of this election petition may be stated. It is pointed out in the election petition that a notification dated April 16, 1982 was issued by the Governor of Himachal Pradesh calling upon all Assembly Constituencies of Himachal Pradesh to elect members to represent them in the Himachal Pradesh Lagislative Assembly and the Election Commissioner issued a programme of election for that purpose on the same day. The election programme was notified and after the date of withdrawal of names, the petitioner, respondent and some others were left in the field. The petitioner as also the respondent had filed their nomination papers on April 20, 1982. The polling took place on May 19, 1982 and the votes were counted on May 21, 1982. Since the respondent secured more votes, he was declared elected by the Returning Officer on that day.

    3. It is stated in the election petition that the respondent was a member of Himachal Pradesh Vidhan Sabha from June 1977 to April 19, 1982. With effect from May, 9, 1980, he was appointed as Chief Parliamentary Secretary to the Government of Himachal Pradesh. It is pointed out that since there was no provision for the appointment of Chief Parliamentary Secretary under the Constitution of India, the Government of Himachal Pradesh in exercise of its executive powers, accorded sanction to the creation of the post of Chief Parliamentary Secretary. Consequently, the respondent was appointed as such by an order dated 11th June, 1980. The order was, however, made effective from May 9, 1980. It is stated that on April 19, 1982, the Governor of Himachal Pradesh in exercise of his powers under Art. 174 of the Constitution of India, dissolved the Legislative Assembly of Himachal Pradesh with effect from that date. As such, according to the petitioner, the respondent ceased to be a Member of Himachal Pradesh Legislative Assembly (The Assembly in short) and could not continue to be a Member of the Government of Himachal Pradesh, headed by the then Chief Minister. It is contended by the petitioner that from that day onward, the respondent was reduced to the status of an employee of the State Government drawing a salary of Rs. 1,000/- per month apart from enjoying other privileges as contained in Annexure-A. According to the petitioner, since the respondent held the office of profit under the State of Himchal Pradesh from April 19, 1982, the protection from disqualification afforded to him as a Chief Parliamentary Secretary under S. 3 of the Himanchal Pradesh Members of Legislative Assembly (Removal of Disqualifications) Act, 1971 (hereinafter to be referred as the Act of 1971) ceased to be available to him from that day onwards. The respondent is stated to have resigned from the said office on 24th May, 1982.

    4. The contention of the petitioner is that the respondent was holding an office of profit on 20th April, 1982 when he filed his nomination papers and also on 21st May, 1982 when he was declared elected as a Member of the Assembly. According to the petitioner, the respondent was disqualified to be chosen as a member of the Assembly, under Art. 191(1)(a) of the Constitution of India.

    5. In the written statement filed by the respondent, the allegations made by the petitioner have been controverted. It is, however, contended that the election of the respondent is in accordance with law and there is no infirmity attached thereto. It is not disputed that the respondent was a member of the Assembly from June 1977 to April 18, 1982. It is further not disputed that the respondent was appointed as Chief Parliamentary Secretary to the Government of Himachal Pradesh with effect from 9th May, 1980. It is, however, contended that the appointment of the respondent was not co-extensive with his membership of the Assembly. It is refuted that the respondent could remain as Chief Parliamentary Secretary only so long as he was a member of the Assembly. It is admitted by the respondent that the Assembly was dissolved by the Governor on 19th April, 1982. It is asserted by him that his appointment was never revoked and that he continued to be a member of the Government headed by the then Chief Minister under rules of procedure and Parliamentary practice and conventions. According to the respondent, the Government of Himachal Pradesh after dissolving the Assembly requested the Governor headed by the then Chief Minister to continue in office and discharge its function till the election in the State was held and new Government formed on the basis of such election. The then Chief Minister accepted the responsibility and continued in office and discharged the functions of the Government. It is stressed by the respondent that he was entitled to continue as Chief Parliamentary Secretary and work as such after the dissolution of the Assembly. According to the respondent, he had been performing numerous duties of ministerial nature and his appointment and allocation of business did not confine him to the duties in the Legislative Assembly alone. It is contended by him that the Governor of Himachal Pradesh was pleased to attach the respondent with the Chief Minister for the works relating to the Departments of Health & Welfare, Ayurveda, Law and Parliamentary Affairs. According to the respondent, he was a part and parcel of the Government which had been asked to continue and to remain in office after the dissolution of the Assembly and that under no circumstances he could be termed as an employee of the State Government. It is contended that he did not draw any salary as an employee or T.A & D.A and also did not use any government vehicle. An additional plea in the reply has also been specifically raised by the respondent. It is convenient to reproduce the same in extenso:

    “Additional Plea.

    6-A. The respondent submits that even if it is held that he was holding an office of profit, then as intended under Art. 191(1)(a) of the Constitution, the office of the Chief Parliamentary Secretary has been declared by the H.P Legislative by law not to disqualify its holder by enacting S. 3(d) of the H.P Legislative Members (Removal of Disqualifications) Act, 1971, as such the respondent is not disqualified under any law of the country and the petition is misconceived, liable to be dismissed”.

    6. On the pleadings of the parties as many as eight issues were framed. The same may be reproduced for a ready reference:

    1. Whether the respondent was not entitled to hold the office of Chief Parliamentary Secretary to the Government of Himachal Pradesh from 19-4-82 till 24th May, 1982, the date on which he resigned? OPP

    2. If issue No. 1 is proved, whether the office which the respondent held from 19-4-82 to 24th May, 1982, was an office of profit under the State of Himachal Pradesh and the protection given under Cl. (d) of S. 3 of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971, was not available to him? OPP

    3. Whether the Election Petition is liable to be dismissed on the ground that it does not comply with the provisions as contained in S. 81 of the Representation of the People Act? OPP

    4. Whether in view of the provisions contained in Cl. (d) of S. 3 of the Himachal Pradesh Legislative Assembly Members (Removal of Disqualifications) Act, 1971, the Election petition is not maintainable? OPP

    5. Whether annexure ‘PA’ is not properly verified? If so, what is its effect? OPP

    6. Whether in view of the fact that the petitioner in para 2 of the petition stated that “the petitioner, the respondent and a few others were validly nominated candidates left in the field” she is estopped to file the Election Petition? OPP

    7. Whether the failure on the part of the petitioner to give a concised statement of particulars of office which was held by the respondent after 19-4-82 till 24th May, 1982, deserves the dismissal of the Election Petition? OPP

    8. Relief.

    7. Issues Nos. 1, 2 and 4 are interconnected and can conveniently be disposed of together. In fact, the decision of the election petition depends on the decision of those issues. The learned counsel for the petitioner has contended that under Art. 164 of the Constitution of India, a Chief Parliamentary Secretary is not included in the category of the Counsel of Minister. On this account, it is argued that the respondent could not continue as a Chief Parliamentary Secretary after he ceased to be a member of the Assembly. According to the learned counsel for the petitioner, under Art. 164(4), only a Minister can continue as such for any period of six consecutive months without being a member of the Legislature of the State. The contention of the learned counsel is that since the respondent with effect from 19th April, 1982 till 24th May, 1982 held the office of profit as Chief Parliamentary Secretary, he was not eligible to contest the election.

    8. On the contrary, it is contended by the learned counsel for the respondent that the contention is baseless. He has referred to S. 3(d) of Removal of Disqualification Act. It is desirable to refer to the relevant provisions of the said Act. The relevant section is S. 3(d). and is reproduced as under for a ready reference:

    3. A person shall not be disqualified for being chosen as, and for being, a member of the Himachal Pradesh Legislative Assembly by reason only of the fact that he holds any of the following offices of profit under the Government of India or the Government of any State:

    (a) the office of a Deputy Minister or Minister of State;

    (b) any office held by a Minister, Minister of State, or Deputy Minister whether ex-officio or by name;

    (c) the office of the Speaker or the Deputy Speaker of the Himachal Pradesh Legislative Assembly of any other State;

    (d) The office of the Chief Parliamentary Secretary or Parliamentary Secretary;

    (e) ……………………………………..

    9. Under Art. 191 of the Constitution of India, a person is disqualified for being chosen as, and for being, a member of the Legislative Assembly 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. As pointed out earlier above, the Assembly enacted “the Act of 1971” providing that a person shall not be disqualified for being chosen and for being a member of the Himachal Pradesh Legislative Assembly by reason only of the fact that he holds any of the office of profit under the Government of India or the Government of any State as detailed under the said section. The holder of the office of the Chief Parliamentary Secretary is not disqualified for being chosen as a member of the Assembly under “the Act of 1971”. That being the legal position, it cannot be said that the respondent was not qualified to be elected as a member of the “the Assembly”. As such, the respondent was entitled to hold the office of Chief Parliamentary Secretary to the Government of Himachal Pradesh even from April 19, 1982 to May 24, 1982. Issue No. 1 is accordingly decided against the petitioner. Consequently, issues Nos. 2 and 4 are also decided in favour of the respondent.

    Issue No. 3

    It is not shown by the learned counsel for the respondent as to how the election petition does not comply with the provisions as contained in S. 81 of the Representation of the People Act. As such, this issue is decided against the respondent.

    Issue No. 5

    This issue has not been pressed by the learned counsel for the respondent Otherwise also, it is not shown as to how the verification has not been properly done. As such, this issue as well is decided against the respondent.

    Issue No. 6

    This issue has also not been pressed by the learned counsel for the respondent and is decided against him.

    Issue No. 7

    It is not shown as to how the petitioner has failed to give a concised statement of particulars of office which was held by the respondent after 19th April, 1982 till 24th May, 1982. In fact, it is an admitted case of the respondent as well that he continued to hold the office of Chief Parliamentary Secretary from 19th April, 1982 till 24th May, 1982. As such, this issue is decided against the respondent.

    10. The upshot of the above discussion is that there is no merit in this election petition and the same is dismissed with costs.

    11. The Registry is directed to comply with the legal requirements as provided under S. 103 of the Representation of the People Act, 1951.

    Petition dismissed.

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    Comments

    Smt. Leela Devi v. Rangila Ram Rao .
    (May 3, 1984)