Biswanath Rath, J
1. This writ petition involves the following prayer:-
“The Petitioner, therefore, prays that your Lordships would be graciously pleased to admit this Writ Petition, call for the records and after hearing the parties allow the same, issue writ/writs in the nature of certiorari/mandamus and/or any other further writ/direction, set aside the impugned order dated 07th December 2020 under Annexure-1 and order under Annexure-2 respectively and declare the Opposite Party No. 6 has incurred disqualification to hold office of the MLA Sundargarh Assembly Constituency.
And for this act of kindness, the petitioners shall as in duty bound ever pray.”
2. Case of the Petitioner in a nutshell is; Petitioner is a citizen of India and a voter of 9-Sundargarh Assembly Constituency having voter ID: OR/20/135/276056. Opposite Party No.6-Smt. Kusum Tete is a Member of the Legislative Assembly, Odisha. To contest the election for the post of Member, Legislative Assembly of Odisha in respect of 9-Sundargarh Assembly Constituency Smt. Kusum Tete filed her nomination on 26.03.2019. It is pleaded that in the nomination paper’s Part III A, Opposite Party No.6 had specifically struck off at the area requiring “to disclose, whether the concerned candidate was holding any Office of Profit under the Government of India and/or State Government” at the time of filing of nomination. To satisfy this aspect Petitioner enclosed the copy of nomination involving Opposite Party No.6 vide Annexure-3. It is alleged that Opposite Party No.6 was appointed as Vice-Chairperson of the Special Development Council, Sundargarh vide notification dated 9.11.2017 for a term of two years. Further before expiry of such term Opposite Party No.6 was again appointed as Chairperson of the Special Development Council, Sundargarh vide communication dated 4.02.2019. It is hereby alleged that at the time of filing the nomination on 26.03.2019 Opposite Party No.6 was holder of both the posts of Vice-Chairperson and Chairperson of the Council involved. It is alleged that nomination paper vide Annexure-3 didn’t disclose the above facts. Finding that there is already attachment of a disqualification clause on Opposite Party No.6 for her misrepresentation in the nomination paper, Petitioner being a voter of the same constituency lodged a written complaint to the Hon’ble Governor of Odisha under Article 192 of the Constitution of India thereby requesting therein the Hon’ble Governor to disqualify Opposite Party No.6-Smt. Kusum Tete from the post of Member of Legislative Assembly (M.L.A). Petitioner specifically pleaded that Opposite Party No.6 while holding the Office of Profit continuing as Vice-Chairperson and Chairperson of the Council involved, filed her nomination for the 9-Sundargarh ST Assembly Constituency of Odisha on 26.09.2019 and there was clear suppression of material facts in the nomination paper about her holding of two positions relating to Office of Profit. Upon receipt of complaint vide Annexure-4 the Hon’ble Governor of Odisha as per the requirement under Article 192(2) of the Constitution of India sought for opinion of the Election Commission of India. It is accordingly vide letter dated 14.02.2020 the Principal Secretary to Governor of Odisha informed the Secretary, Election Commission of India for necessary action as appearing at Annexure-5. In the meantime the Secretary, Election Commission of India wrote back to the Petitioner on 4.03.2020 thereby asking the Petitioner to approach the appropriate competent Court having jurisdiction over the matter for appropriate action as appearing at Annexure-6. Petitioner thereafter made response to the above correspondence on 8.03.2020 thereby stating therein that issue relates to a petition placed before the Hon’ble Governor of Odisha under Article 192 of the Constitution of India and his action is sought for on the basis of correspondences being issued by the Hon’ble Governor of Odisha and thus there is no scope for such direction by the Election Commission. While making the above response Petitioner also reiterated his prayer and advances some legal submission to support his claim. Response of the Petitioner dated 8.03.2020 is available at Annexure-7. It is alleged, the Election Commission after a gap of almost six months on 18th August, 2020 requested the Chief Secretary, Odisha to furnish information to enable him to advance his opinion to the Hon’ble Governor. Copy of the letter from the Office of the Election Commission of India to the Chief Secretary of the State of Odisha finds place at Annexure-8. It is in a sequence vide letter dated 2nd Sept. 2020 the Joint Chief Electoral Officer-cum-Joint Secretary to Government sought for required information from the DEO as well as the Collector, Sundargarh basing on the queries made by the Election Commission of India. Copy of the communication dated 2.09.2020 is at Annexure-9. In a development vide letter dated 21st September, 2020 the Joint Secretary to Government of Odisha furnished the information sought for by the Election Commission of India. It is here in such correspondence it was informed that Opposite Party No.6 had furnished her resignation from post of Chairperson on 16.03.2019. It is pursuant to the aforesaid development vide letter dated 28th September, 2020 there was forwarding of compliance report to the Director, Law Election Commission of India as appearing at Annexure-11. In the meantime finding no respite Petitioner made further representation to the Hon’ble Governor as no action was taken in the meantime, copy of which is at Annexure-12. While the matter stood thus the Collector and District Election Officer, Sundargarh also furnished its report on 4.11.2020 vide Annexure-13. Forwarding of the compliance report was made by the Joint Chief Electoral Officer-cum-Joint Secretary to Government to the Director (LAW), Election Commission of India on 23.11.2020 vide Annexure-14. It is here one Ajit Dash sought for information through the provision of R.T.I vide Annexure-15, which was responded vide Annexure-16. Petitioner claims, this response categorically stated that there is no availability of any document regarding resignation and acceptance involving Opposite Party No.6 from the post of Chairperson of SDC vide Annexure-16. It is claimed, there was another attempt made by said Ajit Dash requiring information stated therein made on 29th December, 2020 and 2nd February, 2021 respectively as appearing at Annexure-17(series). In the meantime through a letter dated 12.01.2021 the Joint Secretary to Government, S.T. & S.C. Development Department replied the applicant-Ajit Dash that the appointment and resignation of the Chairman/Chairperson of the Special Development Councils (SDC) are all dealt in the Office of the Hon’ble Chief Minister. In the meantime on 2nd March, 2021 the Special Officer-cum-Public Information Officer, Integrated Tribal Development Agency (ITDA), Sundargarh informed that the salary for the month of February, 2019 and May, 2019 was paid to the private Opposite Party No.6. It was also informed therein that this payment was wrongly drawn and paid to Smt. Kusum Tete vide bill no.156 as a clerical error and the excess payment so made was deducted and adjusted at their level in the next bill No.88. Copy of such reply is enclosed as Annexure-19. It is in view of the above Petitioner claims, the opinion of the Election Commission that Opposite Party No.6 resigned from her position in the Special Development Council, Sundargarh was not correct. It is, accordingly, claimed that the stand of the Election Commission that Opposite Party No.6 was not holding any Office of Profit at the time of filing of nomination, is also not correct. In paragraph no.24 Petitioner also claims not to have been provided with opportunity of natural justice to submit his response to the above correspondence for making the same false.
3. Mr. Rath, learned counsel for Petitioner in the above factual background of the matter taking this Court to the documents referred to hereinabove, the grounds taken in the application and also the disclosures through Annexures-4, 5, 8 & 10 contended that the Election Commission of India failed in giving proper attachment to his role under the provisions of Article 192 of the Constitution of India as well as Section 146 of the Representation of People Act, 1951 hereinafter in short be reflected as “the Act, 1951”. Mr. Rath, learned counsel for Petitioner reading through the documents appended also contended that the complaint involves Opposite Party No.6 was a holder of two posts i.e. Vice-Chairperson and Chairperson on the date of filing of nomination and such complaint being forwarded by the Office of the Hon’ble Governor seeking opinion of the Commission, Mr. Rath, learned counsel for Petitioner alleges that there has been casual and mechanical approach by the Election Commission of India particularly in the matter of obtaining required information before submitting his opinion. Mr. Rath, learned counsel for Petitioner also alleges that the Hon’ble Governor before passing the final order at least should have remained careful in looking to the endeavour of the Election Commission of India at least to find-out, if his attempt was in the light of asking in the complaint. Mr. Rath, learned counsel for Petitioner also taking que from the provisions at Section 146 of the Act, 1951, urged, once there is requirement of following of the procedures of the Code of Civil Procedure particularly in respect of the provisions taken care of therein, the Election Commission before submitting his opinion since involved himself in the inquiry process, ought to have provided natural justice to the Petitioner. Mr. Rath, learned counsel for Petitioner thus urged that there is violation of principle of natural justice and the opinion of the Election Commission also suffers on account of non-compliance of natural justice. Mr. Rath, learned counsel for Petitioner further taking this Court to the conflicting in the information through the R.T.I application as well as reporting of the public authority to the Election Commission of India on its asking, where somebody says, there is no material available on appointment and resignation of Smt. Kusum Tete and some other person say, all these things happen in the Office of the Hon’ble Chief Minister and some correspondences even refer Smt. Kusum Tete had already resigned from the post of Chairperson of the Council involved, urged that a serious issue involved therein has been taken in a very casual manner by all concerned. Further taking this Court to the correspondences making it clear that there was inadvertent and clerical omission in making the excess payment i.e. beyond the period of officiating of Opposite Party No.6 and such excess payment has been adjusted subsequently in a subsequent bill, Mr. Rath, learned counsel for Petitioner urged here that these all have happened for repainting of illegalities already taken place so as to cover the case of Opposite Party No.6. Mr. Rath, learned counsel for Petitioner also taking this Court to the documents, affidavits as well as additional affidavits, attempted to establish all the above.
Mr. Rath, learned counsel for Petitioner in the above background of the matter attempted to cite the decisions as follows:-
(i) Mohinder Singh Gill and anothers v. Chief Election Commr. New Delhi and others : (1978) 1 SCC 405
(ii) Jaya Bachchan v. Union of India and others : (2006) 5 SCC 266
(iii) Debaki Jani v. The Collector : AIR 2014 ORI 138
(iv) Election Commission of India v. N.G. Ranga and others : 1978(4)SCC181
(v) Institute of Chartered Accountants of India v. L.K. Ratna & others : (1986) 4 SCC 537
4. In order to challenge the impugned order and for a lawful decision of this Court, the Petitioner has made the following grounds:-
“(a) The impugned opinion by the Election Commission is violative of the mandates of the provisions as contained in Representation of the People Act, 1950 (Herein after referred as R.P. Act) and principles of natural justice. The impugned order passed by the Opposite No. 2 is without holding an enquiry and following the due procedure provided in R.P. Act, 1950 & rules therein. Thereby, the said order is bad in law in as much as violative of principles of natural justice.
(b) As per Section 146 of R.P. Act, 1950, the Election Commission is vested with the powers of Civil Court to conduct necessary or proper inquiry, if satisfied that no decisive opinion can be formed on the matter. Considering the gravita of the complaint and the intricacies involved in it, as no such procedure as ordained in the specific statue was followed by the Election Commission, the said opinion was contrary to the provisions of the specific statue.
(c) The private Opposite Party No. 6 had drawn salary from the Scheduled Tribes and Scheduled Castes Development, Minorities and Backward Classes Welfare even after filing of nomination papers i.e. for month of Feb 2019 & May 2019. The said aspect was not dealt with by the Election Commission.
(d) The successor to the said position in the very same organisation had assumed office as on 27th August, 2019, whereas, the private Opposite Party had resigned as on 16th March, 2019. In order to vouch the authenticity of the said resignation, the very same should have been considered, inquired upon and proper clarification should have been furnished by the Competent Authority. As no such inquiry was made, it is further suggestive of the fact that no proper procedure was followed by the Competent Authority.
(e) The main contention of the Election Commission was that the Private Opposite party had resigned from the post before filing her nomination forms. However, it is pertinent to note that the concerned departments were not kept in loop when such resignation was tendered by the private Opposite Party No. 6. Further, there is no clarity, whether the said resignation was accepted or was given effect to prior to the filing of the nomination paper by private Opposite Party No. 6.”
5. It is in the above premises Mr. Rath, learned counsel for Petitioner placing through the above judgments also prayed for allowing the writ petition in setting aside of the impugned order at Annexure-1.
6. Mr. Agrawal, learned counsel for Opposite Party No.2 the Election Commission of India while denying each & every allegation of the Petitioner also while adopting the Commission’s claim through the counter affidavit and also while not disputing the role of the Election Commission of India under Article 192 of the Constitution of India reading together with the provision at Section 146 of the Act, 1951, submitted that there is in fact compulsory requirement of submission of opinion to the Hon’ble Governor by the Election Commission of India. It is also further submitted that there involves seeking of an opinion by the Hon’ble Governor of Odisha on the aspect of disqualification of Smt. Kusum Tete from 9-Sundargarh (ST) Assembly Constituency. While stating that Article 192 of the Constitution of India only prescribes the form and stipulated the procedure with determination of the fact, whether the legislature involved incurred any disqualification? Mr. Agrawal, learned counsel however, contended that Article 192 of the Constitution of India does not provide any procedure for removal of a member from the post of legislature by an action of the Hon’ble Governor and the removal takes place only by virtue of operation of law on the happenings of the events and that is the acquisition of a disqualification of an elected post. Mr. Agrawal, learned counsel also claimed that the Election Commission of India here has only an advisory jurisdiction to render opinion on the doubts claimed by the Hon’ble Governor of Odisha and the Hon’ble President of India, as the case may be, undisputedly here the case involves an opinion being sought for by the Hon’ble Governor of Odisha. While attempting to explain through the provision at Section 146 of the Act, 1951, Mr. Agarwal, learned counsel appearing for the Election Commission of India contended that this provision has three parts. First part while dealing with situation, while tendering opinion of the Hon’ble President under Article 102 or the case, as may be, under Sub-section 4 of Section 14 of the Government of Union Territories Act, 1963 or to the Hon’ble Governor under Article 192 of the Constitution of India; whereas the second part of the provision prescribes, at least when the situation while tendering any opinion to the Hon’ble President under Article 103 or under Sub-clause 4 of Section 14 of the Government of Union Territories Act, 1963 or to the Hon’ble Governor under Article 192, the Election Commission of India may provide opinion on the basis of available materials and if no opinion is possible on the basis of materials available, considers it necessary or proper to make an inquiry. Mr. Agarwal, learned counsel claims, for the clear provision therein, if the Election Commission of India is satisfied on the basis of affidavits filed and documents produced in such inquiry by the parties concerned on their own accord; an opinion can be reached. It is stated that the third part deals with while tendering opinion either to the Hon’ble President or the Hon’ble Governor of the Union Territory or the Hon’ble Governor of the State, the Election Commission of India has to consider the material already available with him and if an opinion cannot be reached, then it shall have to enter into an inquiry following the provisions of the Code of Civil Procedure, 1908 adopted in course of trial by Civil Courts.
It is, in the above background of the matter and for the possibility here of an opinion on the basis of materials available the Election Commission of India applying under the second proviso of Article 192, has accordingly provided its opinion. Mr. Agrawal, learned counsel also in reference to the communication of the Chief Secretary and his subordinates contended that there was at least clear information provided through such correspondences reporting that Smt. Kusum Tete was not holding any post of Office of profit while filing her nomination. In the process Mr. Agrawal, learned counsel also claims, there has been no lapse on the part of the Election Commission of India. Mr. Agrawal, learned counsel referring to the prayer involved also contended that Petitioner only challenges the order of the Hon’ble Governor vide Annexure-1 and there is no challenge to the order of the Election Commission of India and alleged that Petitioner is unnecessarily dragging the Election Commission of India in the limited challenge involved herein.
In the above background of the matter Mr. Agrawal, learned counsel while attempting to satisfy the Court also reading through the provisions at Article 102, 103 & 192 of the Constitution of India and Section 14 of the Government of Union Territories Act, 1963 reading together with the provision at Section 146 of the Representation of People Act, 1951 attempted to substantiate his plea taken note hereinabove. To supplement his further submissions through support of law Mr. Agrawal, learned counsel appearing for the Election Commission of India also attempted to take help of the following citations.
(i) Election Commission India vs Saka Venkata Rao: AIR 1953 SC 210
(ii) Carborundum Universal Ltd. v. Central Board of Direct Taxes : 1989 Supp (2) SCC 462
(iii) Rameshwar Prasad and others (VI) v. Union of India and another, (2006) 2 SCC 1
(iv) Election Commission of India v. N.G. Ranga and others : (1978) 4 SCC 181
(v) S.L. Kapoor v. Jagmohan and others : (1980) 4 SCC 379
(vi) M.P. Industries Ltd. v. Union of India and others, : (1966) 1 SCR 466
(vii) F. N. Roy vs Collector of Customs, Calcutta and others : AIR 1957 SC 648
(viii) The State of Assam and another vs The Gauhati Municipal Board, Gauhati, AIR 1967 SC 1398
(ix) State Bank of Patiala v. Mahendra Kumar Singhal, : 1994 Supp (2) SCC 463
It is placing through the above judgments Mr. Agrawal, learned counsel contended that there is not only factual support to the claim of the Election Commission of India, but there is also support of the above judgments to the claim of the Election Commission. Mr. Agrawal, learned counsel further in reference to the provisions at Article 329(b) of the Constitution of India contended that since Opposite Party No.6 is already an elected MLA, keeping in view the aforesaid Constitutional provisions there is no room in bringing dispute of this nature for being considered under the provisions of Article 226 of the Constitution of India and Mr. Agarwal, learned counsel thus claimed that the present Writ Petition is hit by the provision at Article 329 (b) of the Constitution of India.
7. This Court now proceeds to take into account the submissions of Mr. Mishra, learned Senior Advocate appearing on behalf of Opposite Party No.6. This Court here finds, Mr. Mishra, learned Senior Advocate while completely adopting the submission of the Election Commission of India as recorded hereinabove, also taking this Court to the provision at part ‘viii’ of the Representation of People Act, 1951 reading together with the provision at Section 146 of the Act, 1951 and also the provision at Article 192 of the Constitution of India attempted to submit that such contingency arises only, if a member of a house of the legislature of a State has become subject to any of the disqualifications mentioned in Clause ‘1’ of Article 191. Taking this Court to the pleadings, prayer and disclosures through the complaint Mr. Mishra, learned Senior Advocate attempted to submit that for the Petitioner attracting the attachment of disqualification pre-filing of nomination, there is no attraction of provision either at Article 192 of the Constitution of India or the provision at Section 146 of the Representation of People Act. Mr. Mishra, learned Senior Advocate here taking this Court to the decision in the case of Brundaban Nayak vs Election Commission of India and another, AIR 1965 SUPREME COURT 1892 reading through paragraph No.14 therein contended that in the context of the matter the only course available with the Petitioner is to take resort to an election dispute under the provisions of the Representation of People Act, 1951 and in no circumstance a writ petition under Article 226 of the Constitution of India remains permissible. Mr. Mishra, learned Senior Advocate thus contended that complaint of the Petitioner since applies attraction of disqualification clause pre-filing of nomination, the same ought not to have been entertained by the Hon’ble Governor itself. In the process Mr. Mishra, learned Senior Advocate also takes this Court to the decisions vide Election Commission India vs Saka Venkata Rao : AIR 1953 SC 210, Brundaban Nayak vs Election Commission of India and another : AIR 1965 SUPREME COURT 1892 to give strength to his above submissions and accordingly prayed for dismissal of the writ petition.
8. So far as Opposite Parties i.e. Opposite Party Nos.3, 4 & 5 are concerned; Mr. Ghose, learned Addl. Govt. Advocate on the other hand taking this Court to their counter affidavit attempted to submit that for their limited role involved, there is not only proper exercise of mind, but there is also providing of necessary inputs to the Election Commission of India strictly in terms of requisition. Mr. Ghose, learned Addl. Govt. Adv. also contended that looking to the nature of dispute involved, these Opposite Parties are neither necessary parties nor proper parties and there has been unnecessary harassment to all such parties by dragging each of them to face an unnecessary litigation and urged, this writ petition ought to be dismissed as against each of such parties with heavy award of costs.
9. Mr. Parhi, learned Deputy Solicitor General of India appearing for the Hon’ble Governor of Odisha attempted to justify the impugned order at Annexure-1 on the plea that there is supply of information by the Election Commission of India in exercise of his power under Article 192 of the Constitution of India and Section 146 of the Representation of People Act, 1951. Further reading through the provisions particularly at Article 192 of the Constitution of India Mr. Parhi, learned DSG of India contended that the Constitution makes it clear that decision of the Hon’ble Governor in this regard shall remain final and there is no possibility of challenge to the order of the Hon’ble Governor applying the provisions at Article 226 of the Constitution of India. Mr. Parhi, learned DSG of India thus contended that the dispute involved herein remains beyond the scope of consideration of the High Court.
10. Considering the rival contentions of the parties as discussed in detail hereinabove, this Court finds, there is requirement of consideration of following questions:-
i) For the objection of learned counsel for all Opposite Parties; if Petitioner has locus standi to bring such complaint?
ii) For the pleading in the complaint of the Petitioner at Annexure-4 appearing to be attracting disqualification clause pre-filing of nomination, if there is attraction of provisions at Article 192 of the Constitution of India?
iii) For the contentions raised by the Petitioner, if there was scope on the Election Commission of India to have gone for an inquiry following the power of Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the prescriptions at Clauses-A to E indicated in Section 146 of the Representation of the People Act, 1951?
iv) If exercise by the Election Commission of India exercising its power U/s.146 of the Representation of People Act requires compliance of natural justice to the Petitioner’s complaint before providing its opinion to the Hon’ble Governor?
v) Even assuming that there is some adjustment of receivable subsequent to the filing of nomination; if such contingency affects Kusum Tete being disqualified for her holding of Office of profit at the time of nomination?
vi) If the opinion of the Election Commission of India remains justified?
vii) If the Hon’ble Governor’s order vide Annexure-1 is justified? And if he is bound by the opinion of the Election Commission of India?
11. For all the parties referring to the provisions of law, this Court here likes to take down the provisions at Article 191, 192, 328 & 329(b) of the Constitution of India and Section 146 of the Representation of People Act, 1951 herein below:-
“Article 191 of the Constitution of India deals with disqualifications 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.
Article 192. Decision on questions as to disqualifications of members.—(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.]
Article 328. Power of Legislature of a State to make provision with respect to elections to such Legislature.—Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
Article 329. Bar to interference by courts in electoral matters.—3 [Notwithstanding anything in this Constitution 4***—] (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
Section 146 of the Representation of People Act, 1951 (Powers of Election Commission)
(1) Where in connection with the tendering of any opinion to the President under article 103 or, as the case may be, under sub-section
(4) of section 14 of the Government of Union Territories Act, 1963 (20 of 1963), or to the Governor under article 192, the Election Commission considers it necessary or proper to make an inquiry, and the Commission is satisfied that on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own accord, it cannot come to a decisive opinion on the matter which is being inquired into, the Commission shall have, for the purposes of such inquiry, the powers of a civil court, while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath ;
(b) requiring the discovery and production of any document or other material object producible as evidence;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or a copy thereof from any court or office ;
(e) issuing commissions for the examination of witnesses or documents.
(2) The Commission shall also have the power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as in the opinion of the Commission may be useful for, or relevant to, the subject-matter of the inquiry.
(3) The Commission shall be deemed to be a civil court and when any such offence, as is described in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code (45 of 1860), is committed in the view or presence of the Commission, the Commission may after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 18982 (5 of 1898), forward the case to a magistrate having jurisdiction to try the same and the magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 482 of the Code of Criminal Procedure, 18982 (5 of 1898).
(4) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).”
12. Keeping in view the claim of respective counsel on factual aspects involved herein, the provision of the Constitution of India, the Representation of People Act, the different citations taken reliance and indicated hereinabove, this Court without reiteration of the factual aspects straightway proceeds for its decision, which runs as follows:
13. In attending to question no.i framed hereinabove, this Court finds, cause of action to find question as to one if disqualified or not is undertaken under Article 192 of the Constitution of India, which is taken down herein below:-
“Article 192. Decision on questions as to disqualifications of members.—(1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.]”
Provision at Article 192 simply says, on arising of question, as to whether a member of a House of Legislature of a State has become subject to any of the disqualifications made in clause (1) of Article 191, the question shall be referred for the decision of the Governor and his decision shall be final. This provision nowhere restricts who can agitate such question and/or who are debarred from raising such question, thus for the opinion of this Court, once a complaint is raised by way of complain, there arises a question and the Hon’ble Governor then gets bound by Article 192 of the Constitution of India to answer such question. Thus there is no difficulty on the part of the Petitioner herein in bringing in such question. This Court here takes note of decision of this Court herein below:-
In the case of DEVAKI JANI Vrs. THE COLLECTOR : AIR 2014 ORI 138 this Court in para-9 therein held as follows:-
9. While under sub-section (1) of Section 26 of the Act, the categories of persons enumerated therein apply to the Collector for a decision on the allegation or doubt whether or not he is or has become so disqualified; under sub-section (2) the Collector may suo motu or on receipt of an application under sub-section (1), make an enquiry as he considers necessary. The power of the Collector to enquire into the matter suo motu cannot be cabined, cribbed or confined. The power is wide enough. But then the same cannot be exercised in a routine manner. The power has to be exercised with great care and circumspection. In the elegant words of Benjamin N. Cardozo in the legal classic "The Nature of the Judicial Process": "The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knighterrant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". Wide enough in all conscience is the field of discretion that remains".The Collector has to prima facie satisfy himself and apply his mind before issuing any notice to the person whose disqualification is in question. The only rider is to observe principles of natural justice. The legislature in its wisdom thought it proper to grant ample power to the Collector to see that purity and sanctity in the election process is maintained and no unqualified person holds the post. The same also does not exclude any other person to bring the notice of the Collector about the disqualification incurred by any Sarpanch or Naib-Sarpanch or any other member of the Grama Panchayat. The Collector exercising the suo motu power is not debarred from obtaining information and materials from various sources.
10. In view of the analysis made in the preceding paragraphs, we hold that the ratio laid down in Chandrakanti Bhoi and Smt. Mithila Seth, which run contrary to the observations made supra, is not correct enunciation of law. The reference is answered accordingly. The Registry is directed to place the matter before the assigned Bench.”
In the above background of the case this Court finds, there is no difficulty in the Petitioner’s bringing in the complaint for the Hon’ble Governor undertaking an exercise in terms of Article 192 of the Constitution of India and thus question No.(i) is answered in favour of the Petitioner.
14. Though it is claimed that the Joint Secretary to Government of Odisha furnished information on 21st September, 2020 vide Annexure-10 informing therein that Opposite Party No.6 resigned from the post of Chairperson on 16.03.2020, however bare perusal of resignation of Smt. Kusum Tete at running page 80 of the brief nowhere discloses the date of submission of such resignation.
Be that as it may, running page 81 of the brief by the Petitioner itself has a clear disclosure of appointment of one Mr. Binaya Kumar Toppo as the Chairperson of the Special Development Council, Sundargar and the same note sheet also discloses appointment of Mr. Manas Madkami, as Chairperson of Special Development Council Malkanagiri. Therefore the contentions of the Petitioner in paragraph no.14 that Opposite Party No.6 submitted resignation to the Chief Minister from the post of Chairperson post submission of nomination, is wholly unfounded, here the pleadings of other parties has clear disclosure that Opposite Party No.6 Smt. Kusum Tete resigned on 16.03.2019 which is much before she being elected as M.L.A.
This Court now looking to the provisions finds, provision at Article 102 deals with disqualification for being chosen as and for being a Member of either house of Parliament and Member in this category shall be disqualified for being a member of either house of parliament; if he is so disqualified under the tenth schedule, whereas Article 19 deals with disqualification of membership of Legislative Assembly or Legislative Council of a State. Similarly Article 192(I) of the Constitution of India deals with case there involves a question; if member of House of Legislature of a State has subject to any of the disqualifications mentioned in Clause (I) of Article 191, the question shall be referred for the decision of the Hon’ble Governor and his decision shall be final. Article 192(2) speaks, Hon’ble Governor before giving decision on such question shall obtain the opinion of the Election Commission and shall act according to such opinion.
For the controversies involved herein this Court likes to take down the contentions of the complainant through his complain at Annexure-4, which reads as follows:-
“I seek your kind intervention under Article 192 of the Constitution of India to disqualify Ms. Kusum Tete Resident of Vill/PO:Tasladihi, via:Rangadhipa, Dist: Sundargarh, Odisha-770002 from the post of Member of Legislative Assembly of the 9-Sundargarh (ST) assembly constituency for holding the offices of profit during her election to Odisha Legislative Assembly and her unconstitutional continuance on the said posts thereof.
1. It is humbly submitted that the Planning & Convergence Department, Government of Odisha by its Resolution No. 12060/P dated 21st September, 2017 has taken decision for the establishment of Special Development Councils, (hereinafter referred as ‘Council’) in Tribal Dominated Districts of Odisha to addressing the necessity of the tribals’ extensively involvement in development process wherein it stated, “the tribal should be extensively involved at all stages of the development process starting from identification of deficit areas, felt needs, plan formulation, implementation and monitoring so that the tribal development will be more effective, inclusive and participative.” Para 5 of the said resolution decided terms under 5a concerning composition and mode of appointment of the Council, and under 5b on the status of the posts of the Council Executives, wherein it sets that “the Chairperson of the Council shall be given the status of a Minister of State, The Vice-chairperson of the Council shall enjoy the status of the Vice-Chairperson of the Zilla Parishad”. In the aforesaid Resolution at Para No. 13 it is provided that the Administrative Expenses of the Council including the fee, allowances Mobility support and Honorarium etc of the office bearers of the council, if any, as may be decided by the Government and shall be defrayed out of separate provision to be made for the purpose in the Demand for Grant of Planning and Convergence Department. Copy of the said Resolution dated 21-09-2017 is filed herewith as Annexure-1.
2. It is also humbly submitted that Planning & Convergence Department, Government of Odisha vide its Notification No. 14629/P dated 9th November 2017 appointed Ms. Kusum Tete as Vice-Chairperson for a term of two years from the date of her assumption of charge. Quite interestingly Ms. Kusum Tete again joined and taken charge over Special Development Council, Sundargarh as Chairperson w.e.f. 07-02-2019 in response to the Notification No. 1064/P dated 04-02-2019 issued by the same and said Planning & Convergence Department, Government of Odisha without leaving her previous post as Vice-Chairperson. Copy of the Notification No. 14629/P dated 9th November 2017 and the joining letter of Ms. Kusum Tete, dated 07-02-2019 filed herewith as Annexure-2 Series.
3. Further, it is humbly submitted that Ms. Kusum Tete without leaving any of her post she filed her nomination (in two sets) for the election to 9-Sundargarh (ST) Assembly Constituency to Odisha Legislative Assembly on 26-03-2019 vide SL. No. 04/9-SNG/2019/RO and SL. No. 05/9-SNG/2019/RO before the Returning Officer to 9-Sundargarh (ST) Assembly Consistency by suppressing the material fact of her two positions which bears the office of profit and the received and receivable benefits from the State of Odisha by holding her post to rank and file of a Minister of State with the Government of Odisha as stated in Para 13 of the Resolution No. 12060/P dated 21st September, 2017. By omitting fraud, using false and fabricated documents as genuine and deliberately making defective affidavit having criminal conspiracy with a notary with ulterior motief, and using the said forged document before the Returning Officer of the 9-Sundargarh (ST) Assembly Constituency, he managed to get elected having corrupt practice and by affecting the result of the said election. Copy of nomination papers filed herewith as Annexure-3 Series.
4. It is submitted that the Returning Officer has illegally accepted the nomination papers of Ms. Kusum Tete as she has not submitted his nomination paper as required by law and completed as prescribed for which his nomination paper was ought to have been rejected by the Returning Officer in view of the as per section 33 of the Representation of the Peoples Act 1951 (for brevity “RP ACT”) by the Returning Officer in exercising power under section 36 of the said Act and in view of direction of the Hon’ble Supreme Court of India in W.P.(C) No. 121 of 2008 in the matter of Resurgence India Vs Election Commission of India and others reported in AIR 2014 SC 344.”
Entire reading of the complaint in the representation of the Petitioner at Annexure-4 there remains no doubt that entire endeavour of the Petitioner involves a disqualification attachment involving pre-filing of nomination while contesting to the post of M.L.A, 9-Sundargarh (ST) Assembly Constituency.
Keeping in view the question no.ii, reading through the provision at Article 192 along with provision at Section 146 of the Act, 1951, this Court here finds, claim of Mr. Agrawal, learned counsel remains justified in making out a case involving attraction to disqualification clause involving pre-filing of nomination. This Court here taking into account the decisions vide AIR 1965 (SC) 1892 and AIR 1953 (SC) 210 finds, Hon’ble apex Court has the following observation and decision :-
Election Commission India vs Saka Venkata Rao, 1953 SCR 1144/ AIR 1953 SC 210
3. On the same day (21-8-1952) the respondent applied to the High Court under Art. 228 of the Constitution contending that Art. 192 of the Constitution was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election, in which case the only remedy was to challenge the validity of the election before an Election Tribunal. He accordingly prayed for the issue of a ''writ of mandamus or of prohibition directing the Commission to forbear from proceeding with the reference made by the Governor of Madras who was not, however, made a party to the proceeding. On receipt of the rule nisi issued by the High Court, the Commission demurred to the jurisdiction of the Court to issue the writs asked for, on the ground that the Commission was not ''within the territory in relation to which the High Court exercised jurisdiction."' A further objection to the maintainability of the application was also raised to the effect that the action of the Governor in seeking the opinion of the Commission could not be challenged in view of the immunity provided under Art. 361(1), and that the Commission itself, which had not to "decide" the question of disqualification, but had merely to give its "opinion", could not be proceeded against under Art. 228. On the merits, the Commission contended that Art. 192 was, on its true construction, applicable to cases of disqualification arising both before and after the election and that both the reference of the question as to the respondent's disqualification to the Governor of Madras and the latter's reference of the same to the Commission for its opinion were competent and valid.
13. As has been stated already, the respondents conviction and sentence in 1942 disqualified him both for being chosen as, and for bring, a member of the Legislative Assembly under Art. 191 (1) (e) read with S. 7 of the Representation of the People Act, 1951, passed by Parliament, the period of five years since is release on 15-81947 not having elapsed before the date of the election. The respondent having thus been under a disqualification since before his nomination on 15-3-1952, could he be said to have "become" subject to that disqualification within the meaning of Art. 192? The rival contentions of the parties centred round the true interpretation to be placed on that word in the context of the provisions quoted above.
14. The Attorney-General argued that the whole fasciculus of the provisions dealing with "disqualifications of Members,'' viz., Arts. 190 to 193, should be read together, and as Arts. 191 and 193 clearly cover both pre-existing and supervening disqualifications, Arts. 190 and 192 should also be similarly understood as relating to both kinds of disqualification.
According to him all these provisions together constitute an integral scheme whereby disqualifications are laid down and machinery for determining questions arising in regard to them is also provided. The use of the word "become" in Arts. 190 (3) and 192 (i) is not inapt, in the context, to include within its scope pre-existing disqualifications also, as becoming subject to a disqualification is predicated of "a member of House of Legislature," and a person, who, being already disqualified, gets elected, can, not inappropriately, be said to "become" subject to the disqualification as a member as soon as he is elected. The argument is more ingenious than sound.Article 191, which lays down the same set of disqualifications for election as well as for continuing as a member and Art. 193 which predisqualified, are naturally phrased in terms wide enough to cover both pre-existing and supervening disqualifications; but it does not necessarily follow that Arts. 190 (3) and 192 (1) must also be taken to cover both. Their meaning must depend on the language used which, we think, is reasonably plain. In our opinion these two articles go together and provide a remedy when a member incurs a disqualification after he is elected as a member. Not only do the words 'becomes subject" in Art. 190 (3) and "has become subject'' in Art. 192 (1) indicate a change in the position of the member after he was elected, but the provision that his seat is to become thereupon vacant, that is to say, the seat which the member was filling therefore becomes vacant on his becoming disqualified, further reinforces the view that the article contemplates only a sitting member incurring the disability while so sitting. The suggestion that the language used in Art. 190 (3) can equally be applied to a pre-existing disqualification as a member can be supposed to vacate his seat the moment he is elected is a strained and farfetched construction and cannot be accepted. The Attorney-General admitted that if the word "is'' were substituted for ' becomes" or "'has become,'' it would more appropriately convey the meaning contended for by him, but he was unable to say why it was not used.
15. It was said that on the view that Arts. 190 (3) and 192(1) deal with disqualification incurred after election as member, there would be no way of unseating a member who became subject to a disqualification after his nomination and before election, for, such a 'disqualification is no ground for challenging the election by an election petition under Art. 329 of the Constitution read with S. 100 of the Representation of the People Act, 1951. If this is an anomaly, it arises out of a lacuna in the latter enactment which could easily have provided for such a contingency, and it cannot be pressed as an argument against the respondent's construction of the constitutional provisions. On the other hand the Attorney-General's contention might, if accepted, lead to conflicting decisions by the Governor dealing with a reference under Art. 192 and by the Election Tribunal inquiring into an election petition under S. 100 of the Parliamentary statute referred to above.
16. For the reasons indicated we agree with the learned Judge below in holding that Arts. 190 (3) and 192 (1) are applicable only to disqualifications to which a members becomes subject after he is ejected as such, and that neither the Governor nor the Commission has jurisdiction to enquire into the respondent's disqualification which arose long before his election.”
Brundaban Nayak vs Election Commission of India and another, AIR 1965 SUPREME COURT 1892
1. GAJENDRAGADKAR, C. J.:The principal question which this appeal by special have raises for our decision relates to the construction of Article 192 of the Constitution. The sais question arises in this way. The appellant Brundaban Nayak was elected to the Legislative Assembly of . Orissa from the Hinjili constituency in Ganjam district in 1961, and was appointed one of the Ministers of the Council of Ministers in the said State. On August 18, 1964, respondent No. 2, P. Biswal, applies to the Governor of Orissa alleging that the appellant had incurred a disqualification subsequent to his election under Article 191(1)(e) of the Constitution read with Section of the Representation of the People Act, 1951(No.43 of 1951) (hereinafter called the Act. In his application, respondent No. 2 made several allegations in support of his contention that the appellant had become disqualified to be a member of the Orissa Legislative Assembly. On September 10, 1964, the Chief Secretary to the Government of Orissa forwarded the said complaint to respondent No. 1, the Election Commission of India, under the instructions of the Governor. In this communication the Chief Secretary stated that a question had arisen under Article 19(1) of the Constitution whether the member in question had been subject to the disqualification alleged by respondent No. 2, and so, he requested respondent No. 1 in the name of the Governor to make such enquiries as it thinks fit and give its opinion for communication to the Governor to enable him to give a decision on the question raised.
14. It is true that Art.192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art. 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190(3)(a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art.191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2). Therefore, we must reject Mr. Setalvad's argument that a question has not arisen in the present proceedings as required by Art. 192(1).”
This Court here finds, both the judgments taken note hereinabove fully supports the view of this Court rendered hereinabove.
It may be made here clear that for the clear provision at Article 192 of the Constitution of India, the Governor once obtains opinion of the Election Commission of India, shall have to act in terms of opinion of Election Commission of India strictly. For a clear provision at Article 192(I), contingency pressing a decision by the Hon’ble Governor arises only in the event a Member of Legislative Assembly attaches a disqualification post Elected as a Member of the Legislative Assembly. The case since involved a pre-election/nomination, at least there is no attraction of provision at Article 192 of the Constitution of India, nor the provision at Section 146 of the Representation of People Act to the case at hand and as such the proceeding before the Hon’ble Governor was per se not maintainable.
This Court thus answers the question no. ii in favour of Opposite Parties.
15. Looking to the provision at Section 146 of the Representation of People Act, this Court here finds, under this provision there has been providing of mechanism for the Election Commission of India to have his exercise in providing his opinion. In the first part of Section 146 of the Representation of People Act, the Commission is empowered to provide his opinion. It is also made there clear, in the event the Commission is unable to reach an opinion on mere perusal of materials, it shall have for the purpose of such enquiry, the power of Civil Court while trying a suit under C.P.C., but on the specified aspects mandated therein. In the case at hand the Commission could be able to provide his decisive opinion. There was no requirement of undertaking an enquiry exercising power of Civil Court in trying a civil suit. This answers the question no.iii but in favour of Opposite Parties.
16. On the question Natural Justice if required to be provided in the present contingency keeping in view the question no.iv, first of all this Court through Article 191 of the Constitution of India finds, the contingency provided at Article 192 reading together with Section 146 of the Representation of People Act finds, there is clear provision in attending to the complaint lodged by the complainant here the Petitioner. It is here this Court takes into account the decision cited by Mr. Rath, learned counsel to apply to his case. Looking to the decision in the case of Institute of Chartered Accountants of India (supra) this Court finds, this is a decision involving a Disciplinary issue aspect and involving a delinquent and the principle applies in the given circumstance and does not apply in every situation like that of a case involved herein. Taking into account the decision vide Mohinder Singh Gill & Anr. (supra) this Court finds, in this decision the Hon’ble Krishna Iyer (J.) under the heading “the Basics” observed as follows:-
“THE BASICS
2. EVERY SIGNIFICANT CASE HAS AN UNWRITTEN LEGEND AND INDELIBLE LESSON. THIS APPEAL IS NO EXCEPTION, WHATEVER ITS FORMAL RESULT. THE MESSAGE, AS WE WILL SEE AT THE END OF THE DECISION, RELATES TO THE PERVASIVE PHILOSOPHY OF DEMOCRATIC ELECTIONS WHICH SIR
WINSTON CHURCHILL VIVIFIED IN MATCHLESS, WORDS:
“AT THE BOTTOM OF ALL TRIBUTES PAID TO DEMOCRACY IS THE LITTLE MAN, WALKING INTO A LITTLE BOOTH, WITH A LITTLE PENCIL, MAKING A LITTLE CROSS ON A LITTLE BIT OF PAPER — NO AMOUNT OF RHETORIC OR VOLUMINOUS DISCUSSION CAN POSSIBLY DIMINISH THE OVERWHELMING IMPORTANCE OF THE POINT.”
IF WE MAY ADD, THE LITTLE, LARGE INDIAN SHALL NOT BE HIJACKED FROM THE COURSE OF FREE AND FAIR ELECTIONS BY MOB MUSCLE METHODS, OR SUBTLE PERVERSION OF DISCRETION BY MEN “DRESSED IN LITTLE, BRIEF AUTHORITY”. FOR “BE YOU EVER SO HIGH, THE LAW IS ABOVE YOU”.”
The facts involved therein appears to be; the appellant therein and the 3rd respondent therein were principal contestants in the Assembly Election. The gravamen of the grievance of the appellant appears to be; while he had in all probability won the poll, he had been deprived of this valuable and hard won victory by the arbitrary action, Commission going contrary to fairly and in negation of the basic cannons of natural justice and then the Hon’ble apex Court in the given context in para-8 came to observe as follows:-
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [Commr. of Police, Bombay v. Gordhandas Bhanji, 1951 SCC 1088 : AIR 1952 SC 16] :
“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”
Orders are not like old wine becoming better as they grow older.
A CAVEAT”
Here this Court takes down the support of following decisions:- S.L. Kapoor v. Jagmohan and others, (1980) 4 SCC 379
11. Another submission of the learned Attorney-General was that Section 238(1) also contemplated emergent situations where swift action might be necessary to avert disaster and that in such situations if the demands of natural justice were to be met, the very object of the provision would be frustrated. It is difficult to visualise the sudden and calamitous situations gloomily foreboded by the learned Attorney-General where there would not be enough breathing time to observe natural justice, at least in a rudimentary way. A municipal committee under the Punjab Municipal Act is a public body consisting of both officials and non-officials and one cannot imagine anything momentous being done in a matter of minutes and seconds. And, natural justice may always be tailored to the situation. Minimal natural justice, the barest notice and the “littlest” opportunity, in the shortest time, may serve. The authority acting under Section 238(1) is the master of its own procedure. There need be no oral hearing. It is not necessary to put every detail of the case to the committee: broad grounds sufficient to indicate the substance of the allegations may be given. We do not think that even minimal natural justice is excluded when alleged grave situations arise under Section 238. If indeed such grave situations arise, the public interest can be sufficiently protected by appropriate prohibitory and mandatory action under the other relevant provisions of the statute in Sections 232 to 235 of the Act. We guard ourselves against being understood as laying down any proposition of universal application. Other statutes providing for speedy action to meet emergent situations may well be construed as excluding the principle audi alteram partem. All that we say is that Section 238(1) of the Punjab Municipal Act does not.
Carborundum Universal Ltd. v. Central Board of Direct Taxes, 1989 Supp (2) SCC 462 :
6. There is no procedural statutory requirement of a hearing for the disposal of an application under Section 220(2-A) of the Act. The legal position is that where a statutory provision does not exclude natural justice the requirement of affording an opportunity of being heard can be assumed, particularly when the proceedings are quasi-judicial. Exclusion, however, can either be by a clear provision or inferred from the scheme, as also the nature of power which is being exercised. We have already noticed that the power of the Board which was invoked was discretionary. It was to be exercised on the basis of the recommendation of the Commissioner and the material provided by the assessee. Personal hearing in every situation is not necessary and there can be compliance of the requirements of natural justice of hearing when a right to represent is given and the decision is made on a consideration thereof. Keeping the nature of the power invoked for exercise, the fact that the petitioner had an opportunity to represent its case in writing and the further fact that the Board had taken into consideration the report of the Commissioner in the background that it is not the allegation of the petitioner that the Commissioner's recommendations were different, we do not think in the facts of the case it can be held that the petitioner was entitled to a right of being personally heard before its petition under Section 220(2-A) of the Act was disposed of as aforesaid. The petitioner has claimed that he was entitled to a notice of the Commissioner's report and an opportunity to canvass that the contents thereof, to the extent they went against it, were incorrect. We do not think there is scope to contend that the assessee is entitled to such a procedural safeguard. Our conclusion is, however, confined to the facts of the case and as and when the question arises in a different situation, the matter may be open to examination.
M.P. Industries Ltd. v. Union of India and others, (1966) 1 SCR 466 :
10. As regards the second contention, I do not think that the appellant is entitled as of right to a personal hearing. It is no doubt a principle of natural justice that a quasi-judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed Rule 55 of the Rules, quoted supra, recognizes the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation. Whether the said opportunity should be by written representation or by personal hearing depends upon the facts of each case and ordinarily it is in the discretion of the tribunal. The facts of the present case disclose that a written representation would effectively meet the requirements of the principles of natural justice. But there is some apparent justification in the submission that the Central Government had taken into consideration an extraneous matter that came into existence subsequent to the filing of the revision, namely, that Messrs Manganese Ore (India) Ltd., which is a public sector undertaking, had applied for the lease of the area in question on October 5, 1962, for the purpose of mining. The appellant did not allege in its affidavit that this fact was not brought to its notice before the Central Government made the order; indeed, it did not file any reply affidavit to the effect that the said matter was kept back from it. I would have pursued the matter a little further but for the fact that I am refusing to interfere in this appeal on other grounds.
For the opinion, decision of the Election Commission was the challenge involved therein. Here in the case at hand the order of the Governor is challenged. Petitioner here claims, application of Natural Justice is at the hand of Election Commission of India. Present case involves following the requirements of Articles 191 & 192 of the Constitution of India. Services of Election Commission has been pressed by the Governor specifically dependent on Sub-section(2) of the Article 191 of the Constitution of India and here the Election Commissioner pressed into his service under Section 146 of the Representation of People Act. Entire reading of sections through 1st part therein it contemplates, in undertaking exercise of inquiry under the provisions of Article 192 the Election Commissioner considers it necessary or proper to make an inquiry and if the Commissioner is satisfied on the basis of the affidavits filed and the documents produced in such inquiry by the parties concerned of their own accord, it can give its opinion. For the second contingency if in spite of all the above it is not possible to come a decisive opinion in the matter which is being enquired into, then to enter into inquiry following the procedures of C.P.C. prescribed therein like that of Civil Court. Looking to the pleadings of complaint and response of the Chief Secretary, the Commission was very much satisfied to have his opinion from the affidavits and documents in support of parties involved. In such event and as the Election Commission of India having discharged his responsibility under 1st part of Section 146 of the Act, 1951, this Court observes, there was no scope for the Election Commission of India to proceed to second stage requiring following the prescribed procedure of C.P.C. For a decision possible through 1st stage of provision at Section 146 of the Representation of People Act, neither there was any contingency to press into services of provision of C.P.C. furnished therein, nor there is any scope of complying Natural Justice to the Petitioner nor there is any scope in the application of two judgments to the case at hand being referred to hereinabove. This answers the question No.(iv) also answering in the present contingency. There required no compliance of Natural Justice nor there was any scope in following the provision of C.P.C. as prescribed in Section 146 of the Representation of People Act.
17. From the submissions of respective counsel, this Court here finds, there is urging of yet another question for its determination in the case at hand and the question no.‘v’ appears to be even accepting the plea of Opposite Party No.6 as well as State that even if the accounts involving the post held by Smt. Kusum Tete (Opposite Party No.6) drawn some payment but however, such payment have been retrieved by way of adjustment and if retrieving or adjustment of such payment would keep Smt. Kusum Tete for being attracted by the disqualification clause on the premises of holding Office of profit?
This Court for the above admitted scenario finds, this question has already been settled through the case of Jaya Bachchan Vrs. Union of India & Ors. reported in (2006) 5 SCC 266 and through para-6 therein the Hon’ble apex Court has held as follows:-
“6. Clause (1)(a) of Article 102 provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. The term “holds an office of profit” though not defined, has been the subject-matter of interpretation, in several decisions of this Court. An office of profit is an office which is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State Government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is “holding an office of profit”. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important. In fact, mere use of the word “honorarium” cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient. Payment of honorarium, in addition to daily allowances in the nature of compensatory allowances, rent free accommodation and chauffeur driven car at State expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit. For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102(1)(a). This position of law stands settled for over half a century commencing from the decisions of Ravanna Subanna v. G.S. Kaggeerappa [AIR 1954 SC 653] , Shivamurthy Swami Inamdar v. Agadi Sanganna Andanappa [(1971) 3 SCC 870] , Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev [(1992) 4 SCC 404] and Shibu Soren v. Dayanand Sahay [(2001) 7 SCC 425] .”
In the above legal scenario and admitted payment to Smt. Kusum Tete for the alleged period though drawn erroneously, but have been adjusted on detection of the same and the same cannot rescue Smt. Kusum Tete from attracting the wrath of disqualification for her holding an Office for a period and thus this question is also answered in favour of the Petitioner and this Court observes, in the case at hand though this Court held provision at Article 192 of the Constitution of India does not apply but in a given case subsequent adjustment and or recovery cannot take away attraction of disqualification under Article 191 of the Constitution of India. Question no.v lost its relevancy and has no application to the case at hand for the answer of this Court on question no.ii hereinabove.
18. While finding question no.vi is also irrelevant for its answer on question no.ii, but for contest of the parties this question is progressed only as a matter of future guidance. Attending to the question no.vi, this Court looking to the factual scenario finds, Petitioner himself at page 80 of the brief filed the resignation letter of Smt. Kusum Tete from the post of Chairperson, Special Development Council. This letter though shows no clear appearance of date of such letter, Mr. Rath, learned counsel for Petitioner in the course of hearing made it clear that this letter appears to have been submitted on 16.03.2019, which is undisputedly prior to filing of nomination on 26.03.2019. This apart, from the query of the Election Commission of India dtd.18.08.2020 at page 63 (Annexure-8) it appears, there is clear information through the letter dtd.21.09.2020 as find place at page 65 of the brief (Annexure-10) informing that “Smt. Kusum Tete is not holding any position in SDC, Sundargah”. This particularly answers the question No.1 made by the Election Commission of India vide Annexure-8. This Annexure-10 again in para(i) page 65 made it clear that Ms. Tete resigned from the post of Chairperson w.e.f. 16.03.2019. This apart Opposite Party No.6 in response to allegation of her holding two posts simultaneously, in para 16 of her counter available at page 147 of brief made it clear that she was not holder of two posts till 16.03.2019 and again reiterated the same claim in the next sentence in same para.
In the circumstance there remains no doubt that prior to filing of nomination she was holding only one post i.e. post of Chairperson and there is clear query by the Election Commission of India and there is clear response by the authority concerned. There is sufficient material also to establish the claim of Smt. Tete. Thus the opinion of the Election Commission of India remains to be justified one. Thus this question is answered against the Petitioner.
19. This Court here endeavoring to question no.vii finds, this Court even though answering to question no.ii in para 14 has already come to hold in the contest of allegation making out it clear that Smt. Kusum Tete here alleged to have been found disqualified prior to filing of nomination does not invite the provision at Article 191 and / or the Article 192 of the Constitution of India, but however, for clear material before the Election Commission of India holding that Smt. Kusum Tete was not holding any post while filing nomination to contest the Assembly Election also finds, the Hon’ble Governor remains justified in accepting the opinion of the Election Commission of India and there was absolutely no doubt in the Election Commission of India’s opinion involved herein. This issue is answered accordingly.
20. In the ultimate, this Court finds, question no.ii remaining vital being answered in para-14 holding the complaint before the Hon’ble Governor was per se not maintainable, the Writ Petition must fail. This writ petition thus stands dismissed. However, this Court since here finds, there has been creation of unnecessary litigation and forcing Opposite Party No.6 to fight such illegal litigation and landing in litigation expenses, this Court imposes the litigation cost to a sum of Rs.15,000/- (rupees fifteen thousand) only to be paid by the Petitioner to Opposite Party No.6 within a period of two weeks hence.
21. This Writ Petition fails, but however, with award of cost as hereinabove.
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