Alok Singh, J.:--
1. Since in the present special appeal as well as in the writ petition, identical questions of fact and law are involved, therefore, with the consent of learned counsel for the parties, special appeal and writ petition were taken up for hearing together and are being disposed of by this common judgment.
2. Present appeal is filed assailing the judgment and order dated 9.7.2013 passed by the learned single Judge of this Court, whereby writ petition No. 1066 of 2013 (M/S) was dismissed.
3. Writ Petition No. 1066 of 2013 (M/S) was filed before the learned single Judge of this Court assailing Ordinance No. 01 of 2013 known as The Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Ordinance, 2013 notified vide notification No. 178/XXXVI (3)/2013/36 (2)/2006 dated 13.4.2013, and further seeking a mandamus declaring respondent No. 4, namely, Dr. Harak Singh Rawat, to be disqualified for being member of Uttarakhand Legislative Assembly in view of Article 191 of the Constitution of India.
4. During the pendency of the present appeal, the Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Act, 2013 (Uttarakhand Act No. 32 of 2013) was enacted and published in the official gazette by notification No. 347/XXXVI (3)/2013/421/36(2)/2006 dated 1.10.2013, therefore, Writ Petition No. 15 of 2014 (M/S) was filed challenging the vires of the Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Act, 2013.
5. Brief facts of both the writ petitions, inter alia, are that respondent No. 4 Dr. Harak Singh Rawat was elected as Member of the State Legislative Assembly in the general election held in the month of January, 2012; respondent No. 4 was inducted as Cabinet Minister on 9.6.2012; thereafter respondent No. 4 was appointed as Director and Chairman of Tarai Seeds and Development Corporation vide orders dated 7.8.2012: Respondent No. 4 was also holding office of the Chairman of Uttarakhand Seed and Organic Production Certification Agency as well as Chairman of Uttarakhand Purva Sainik Kalyan Nigam; on 2.4.2013, State President of Bhartiya Janta Party (BJP) submitted a memorandum to His Excellency the Governor of the State stating therein that respondent No. 4, the Hon’ble Minister of Agriculture, is holding office of profit of Uttarakhand Purva Sainik Kalyan Nigam Ltd., Uttarakhand Seed and Organic Production Certification Agency and Uttarakhand Seeds and Tarai Development Corporation, therefore, in view of Article 191 (1) (a) of the Constitution of India, respondent No. 4 be declared to be disqualified for being a member of Uttarakhand Legislative Assembly; on 10.4.2014 another memorandum was submitted before His Excellency the Governor of State making the same request; on 13.4.2013, without deciding the memorandums submitted before His Excellency the Governor of the State on 2.4.2013 as well as 10.4.2014, His Excellency the Governor of the State was pleased to promulgate Ordinance No. 01 of 2013 known as the Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Ordinance, 2013, which was notified on 13.4.2013 with the stipulation that Ordinance shall be deemed to have come into force with retrospective effect i.e. 13.3.2013. By this Ordinance, amendment is incorporated in Section 3 of the U.P. State Legislature (Prevention of Disqualification) Act, 1971 by inserting five bodies at Serial Nos. 58 to 62. Further providing that notwithstanding such amendment anything done or any action taken under the Principal Act shall be deemed to have been done or taken under this Act. Net result of the amendment in Section 3 is that all the three Corporations i.e. Uttarakhand Seeds and Tarai Development Corporation Ltd., Uttarakhand Purva Sainik Kalyan Nigam Ltd. and Uttarakhand Seed and Organic Production Certification Agency were brought outside the definition of “office of profit”. Feeling aggrieved, Writ Petition No. 1066 of 2013 (M/S) was filed challenging the Ordinance, and thereafter Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Act, 2013 (Uttarakhand Act No. 32 of 2013) was enacted and published on 1.10.2013 in the official gazette, therefore the subsequent writ petition No. 15 of 2014 (M/S) was filed.
6. Mr. Rakesh Thapliyal, learned counsel for the petitioner, submitted that since respondent No. 4 was holding three office of profits and was drawing salaries therefrom, therefore, he ought to have been declared disqualified as provided under Article 191 of the Constitution of India; His Excellency the Governor of State without taking any decision on the memorandums/representations moved against respondent No. 4 on 2.4.2013 as well as 10.4.2014 was pleased to promulgate Ordinance No. 01 of 2013 amending Section 3 of the Uttar Pradesh State legislature (Prevention of Disqualification) Act, 1971 by inserting five bodies at Sr. No. 58 to Sr. No. 62 keeping them out of the purview of the office of profit. Mr. Rakesh Thapliyal further contends that there was no rationality and necessity to amend Section 3 of the Act; insertion of five bodies at Sr. Nos. 58 to 62, that too with retrospective effect from 13.3.2012, was done only with ulterior motive to save respondent No. 4; therefore, Ordinance No. 01 of 2013 and Uttarakhand Act No. 32 of 2013 should be declared ultra vires. Mr. Rakesh Thapliyal, further contends that since respondent No. 4 assumed the charge of the Director and the Chairman of Tarai Seeds Development Corporation on 7.8.2012, therefore, he acquired disqualification on 7.8.2012 itself and vacancy automatically occurred on 7.8.2012 itself and no formal declaration to this effect was necessary; as such he cannot be saved by promulgating the Ordinance and thereafter by enacting the Amendment Act.
7. On the other hand, Mr. U.K. Uniyal, learned Advocate General appearing for the State, vehemently argued that the Ordinance as well as the Amendment Act can be challenged only on two grounds, viz., lack of legislative competence or in violation of basic structure of Constitution of India. Mr. Uniyal, further contends that as per the simple language of Article 191 of the Constitution of India, a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly only when he holds the office of profit under the Central Government or State Government other than an office declared by the Legislature of State by law not to disqualify its holder, therefore, Legislature of the State is competent to declare any office not being an office of profit; consequently, the Legislature was competent to enact the Uttarakhand Act No. 32 of 2013. Mr. U.K. Uniyal, further contends that since the Act has already been passed, therefore, the validity of the Ordinance which is the subject-matter of the special appeal remains academic only.
8. Learned Single Judge while placing reliance on the judgment of Hoo’ble Apex Court in the case of State of Andhra Pradesh v. Mc. Dowell & Co. and others reported in 1996 (3) SCC 709 : (AIR 1996 SC 1627) has rightly opined that constitutional validity of an Act/Law can be challenged only on two grounds i.e. lack of legislative competence or violation of the basic structure of the Constitution of India and no third ground is available to challenge the Act/Law made by a competent legislature.
9. In our opinion, malice or ulterior motive on the part of legislature cannot be attributed, in view of the fact that law is passed on the floor of the House by majority, in other words, same is outcome of collective decision of the members of the House.
10. Article 191 of the Constitution of India reads as under :
“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.
[Explanation.-- For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
[(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.]”
11. Having read Article 191 of the Constitution of India, this Court has absolutely no hesitation to hold that a person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly of the State, if he holds any office of profit under the Central Government or the State Government specified in First Schedule other than an office declared by the Legislature and the State by law not to disqualify its holder. Therefore, State Legislature is competent to enact law to the effect that holding of a particular office shall not disqualify its holder for being chosen as, and for being, a member of the Legislative Assembly. Therefore, in the considered opinion of this Court, State Legislature was competent to enact Amending Law, and Amending Law does not violate the basic structure of the Constitution of India rather Amending Act is in consonance with Article 191 of the Constitution of India.
12. Next question comes as to whether law can be made retrospectively to remove disqualification?
13. Three-Judges Bench of Hon’ble Apex Court in the case of Consumer Education and Research Society v. Union of India and others reported in (2009) 9 SCC 648 : (AIR 2009 SC (Supp) 1680, paras 16 and 17), in paragraph Nos. 38, 39 and 42, held as under :
38. The question of whether a law can be made retrospectively to remove the disqualification incurred on account of holding offices of profit is no longer res integra. This Court in Kanta Kathuria v. Manak Chand Surana, (1969) 3 SCC 268 : (AIR 1970 SC 694) has clearly laid down that the power of Parliament to enact a law under Article 102(1)(a) includes the power of Parliament to enact such law retrospectively. In that case, the appellant, Mrs. Kanta Kathuria, an Advocate practicing at Bikaner was appointed as a Special Government Pleader. She was subsequently elected to the Rajasthan Legislative, Assembly. The respondent therein challenge her election alleging that she was disqualified to be chosen as a Member, of the Legislative Assembly since she held the office of Special Government Pleader, which was an office of profit under the Government of Rajasthan. The High Court accepted the contention and allowed the Election Petition.
39. In Kanta Kathuria case (AIR 1970 SC 694), the elected candidate preferred an appeal to the Supreme Court on August 2, 1968. During the pendency of the appeal, The Rajasthan State Legislature passed the Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1969 which removed the disqualification that had been applicable to Government pleaders, Government Advocates and Special Government Pleaders with retrospective effect. The respondent contended that the Rajasthan State Legislature was not competent to remove the disqualification retrospectively. Two opinions were delivered - one by Hidayatullah, C.J. (for himself and Mitter, J.), and another by Sikri, J. (as he then was) (for himself, A.N. Ray. and Jaganmohan Reddy, JJ.) since there was a difference of opinion on the question whether, on the date of her election, the appellant held an office of profit. The minority view was that she did, whereas the majority view was that she did not. However, there was unanimity in respect of the finding that the State legislature was competent to enact a law for the purpose of removing the disqualification with retrospective effect.
42. In Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1 : (AIR 1975 SC 2299), another Constitution Bench of this Court reiterated in Kanta Kathuria v. Manak Chand Surana, (1969) 3 SCC 268. The following observations were made by A.N. Ray, C.J. (at Paras 138 and 139): (Indira Nehru Case, (1975) Supp SCC 1)
“138...The power of the Legislature to pass a law includes a power to pass it retrospectively. An important illustration with reference to retrospective legislation in regard to election is the decision of this Court in Kantha Kathuria case (AIR 1970 SC 694).
139. A contention was advanced that the legislative measure could not remove the disqualification retrospectively, because the Constitution contemplates disqualification existing at certain time in accordance with law existing at that time. One of the views expressed in that case is that Article 191 recognizes the power of the Legislature of the State to declare by law that the holder of the office shall not be disqualified for being chosen as a member. Power is reserved to a Legislature of the State to make the declaration. There is nothing in the Article to indicate that this declaration cannot be made with retrospective effect. The Act was held not to be ineffective in its retrospective operation on the ground that it is well recognized that Parliament and State Legislatures can make their laws operate retrospectively. Any law that can be made prospectively can be made with retrospective operation.”
14. In view of the judgment of the Hon’ble Apex Court in the case of Consumer Education and Research Society (AIR 2009 SC (Supp) 1680) (supra), law is no more res integra that a law can be made retrospectively to remove the disqualification incurred on account of holding of the office of profit.
15. Next question would be as to when does vacancy occurs?
16. In the case of Consumer Research Education Society (AIR 2009 SC (Supp) 1680, paras 27, 31, 32, 36 and 37) (supra), Hon’ble Apex Court in paragraph Nos. 57, 67, 74 and 75 has held as under :
57. A vacancy under Article 101(3)(a) would occur in the case of disqualifications enumerated under Article 102(1) only after there has been a decision on the subject of such disqualification by the President. The exception to this proposition would of course arise when there is a voluntary admission of the disqualification by a particular Member to the Speaker/Chairman of the House, as the case may be.
67. Kanta Kathuria also clearly held that when a Member accepts an office of profit and incurs a disqualification, and such disqualification is retrospectively removed, the Member would continue to be a Member. However, the petitioners have contended that Kanta Kathuria had failed to notice the two earlier Constitution Bench judgments on this aspect in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) and Brundaban Nayak v. Election Commission of India (AIR 1965 SC 1892) and therefore, may not be good law. On a careful examination of these precedents, we find no merit in this contention.”
74. There is no doubt that the disqualification, when declared by the President will become operative from the date the Member accepted the “office of profit”. It is also not in doubt that the vacation of the seat is consequential. However, the question is whether the seat of the Member becomes vacant without anything more when a person accepts an “office of profit”? The obvious answer is “no”. If the Member does not make a voluntary declaration that he/she has incurred a disqualification and if no one raises a dispute about the same, the Member would continue inspite of accepting an office of profit. There is nothing strange about this position. We have already noted that when a person who has incurred a disqualification offers himself/herself as a candidate and is subsequently elected and if no one objects and if the Returning Officer accepts the nomination and if no election petition is filed challenging the election, then he/she would continue as a Member inspite of the disqualification. Therefore, our considered opinion is that while a disqualification results in the vacation of the seat of a Member, the vacancy occurs only when the President decides and declares the disqualification under Article 103.
75. When the amending Act retrospectively removed the disqualification with regard to certain enumerated offices, any Member who was holding such office of profit, was freed from the disqualification retrospectively. As of the date of the passage of the Amendment Act, none of the Members who were holding such offices had been declared to be disqualified by the President, Section 4(2) was not attracted and consequently they continued as Members.”
17. In view of the dictum of the Hon’ble Apex Court, if a member accepts an office of profit and incurs disqualification, and such a disqualification is retrospectively removed, the Member would continue to be a Member.
18. In the present case, undisputedly. His Excellency the Governor of the State did not declare respondent No. 4 disqualified prior to the Ordinance or in any case Amendment Act, 2013 was enacted, therefore, respondent No. 4 cannot be said to have incurred disqualification on 7.8.2012 and no automatic vacancy occurred on 7.8.2012.
19. Consequently, this Court does not find any justification or good ground to take contrary view to the view taken by the learned single Judge.
20. Consequently, writ petition as well as the special appeal fail and are hereby dismissed.
21. No order as to costs.
Appeal dismissed.
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