Sanjay Harkauli ORDER
1. This writ petition has been filed questioning the constitutional validity of the Uttar Pradesh State Legislative (Prevention of Disqualification) (Amendment) Act, 2006 and to quash the opinion rendered by the Election Commission of India dated 3.4.2006 and the order of the Governor dated 21.4.2006 in respect of disqualification of the respondent No. 4, a member of the then U.P. Legislative Assembly as being violative of the fundamental rights and constitutional guarantees under the Constitution of India.
2. For this reliance has been placed on Article 191(1)(a) read with Article 192 of the Constitution of India. It is alleged that the respondent No. 4 was disqualified as a member of the Legislative Assembly of the Legislative Council of the State as he was holding an office of profit. He submits that the respondent No. 4 after having been elected as Member of the Legislative Assembly held in the year 2002 and being a Cabinet Minister holding charge of Urban Development, came to be appointed as Chairman of the U.P. Jal Nigam in terms of the U.P. Water Supply and Sewerage Act, 1975. The holding of such an office amounts to holding an office of profit, as U.P. Jal Nigam is a Corporation fully controlled by the State Government, and its Chairman is performing the functions of recruitment and appointing staff of all categories and also receiving such remunerations as may be fixed by the Government. This clearly amounts to holding of office of profit within the meaning of aforesaid constitutional provisions, hence he is disqualified as a Member of Legislative Assembly.
3. Learned counsel for the petitioner submits that it is for this reason that Amending Act U.P. Act No. 10 of 2006 is ultra vires the Constitution and deserves to be struck down to the extent as prayed for.
4. Sri Satya Narain Shukla has urged that this amounts to circumventing the provisions of Article 164(1)A of the Constitution of India as well as Article 14 thereof and a legislation can be struck down on that ground as held by the Apex Court in the case of Dr. Subramaniam Swamy v. Director, Central Bureau of Investigation and Another reported in MANU/SC/0417/2014 : 2014 Vol. 8 SCC page 682.
5. He submits that the amended clause (x) of section 3 of the 2006 Amending Act is in conflict with clause (n) of the said section inasmuch as remunerations other than a compensatory allowance if received would result in a differential treatment to the members of the Legislative Assembly/Council covered by clause (n) and those covered by clause (x). He submits that while the former are exempt from disqualification if they are not entitled to remuneration other than compensatory allowance, the others who fall under the latter clause are not subject to any such restriction. This differential treatment is hit by Article 14 of the Constitution of India. He has urged that this entire unlawful legislative exercise had been undertaken only with a view to protect a particular person or persons and it is for this reason that a Division Bench of this Court had proceeded to hear the matter and pass an order on 18.5.2007 to the following effect:
"Hon'ble Pradeep Kant, J.
Hon'ble Ran Vijai Singh, J.
The petitioner has filed this petition challenging the validity of Clause (x) of Section 3 of the U.P. State Legislative (Prevention of Disqualification)(Amendment) Act, 2006, which reads as follows:
"The office of the Chairman, or Vice Chairman or member (whether called Director or by any other name) of each of the following bodies, namely 79 in number".
which brings them out of the definition of 'office of profit' under the Government and make such person eligible for being elected or nominated as member of either Houses of the State Assembly.
The petitioner asserts that the amendment is violative of Article 164(1)(A) and Article 191. His submission is that ceiling imposed by the former provision thus, stands nullified and also violates the mandate given in Article 191. Further submission is that though sub-clause (a) of Article 191 says that a person if he holds the 'office of the profit' under the Government of India or Government of any State specified in the said schedule other than the office declared by the legislature of the State by law, not to disqualify its holder but that the said power cannot be exercised with a view to include all the officers where the Ministers, who had been stripped of their status of Minister because of the provisions of Article 164(1)(A) nor they can be given the status of the Minister while appointing them as Chairman or Director of various Corporations.
Despite opportunity being given to the State, none has appeared to argue the case.
Let notice be issued to learned Advocate General. The respondents may file counter affidavit within four weeks.
List this matter in the month of July, 2007 for orders.
18.5.2007."
6. A counter affidavit on behalf of the State has been filed urging that while the Amending Act was being discussed in the House all facts had been placed before the House and the House was not misled to bring about the amendment that was passed in accordance with law. Learned counsel for the State has urged that even otherwise the matter does not survive as the tenure of respondent No. 4 in the erstwhile Assembly has already come to an end and even at present he is no longer the Chairman of U.P. Jal Nigam. Thus, the matter has become infructuous and the same deserves to be rejected.
7. Learned Standing Counsel has invited the attention of the Court to the judgment in the case of Consumer Education and Research Society v. Union of India and Ors. reported in MANU/SC/1499/2009 : 2009 Vol. 9 SCC page 648 to urge that the constitutional validity of the 2006 Act has been upheld relying on the earlier judgment in the case of Smt. Kanta Kathuria v. Manak Chand Surana reported in MANU/SC/0275/1969 : 1969 Vol. 2 SCC page 268 and after considering the judgment in the case of Jaya Bachan v. Union of India MANU/SC/2395/2006 : 2006 Vol. 5 SCC page 266.
8. We have considered the various shades of the arguments advanced and the issue of the definition of the word 'office of profit'. We find that the judgment in the case of U.C. Raman v. P.T.A. Rahim, reported in MANU/SC/0674/2014 : 2014 Vol. 8 SCC page 934 explains that the office must yield pecuniary gain in addition to mere compensatory allowance but it is enough if such pecuniary gain is receivable in connection of an office even though it may not have been actually received. It is in this context that it was held that the office of Chairperson of Haj Committee was not an office of profit.
9. The constitutional validity of the Amending Act has been upheld in the case of Consumer Education and Research Society v. Union of India and Ors.(supra) clearly holding that the Amending Act retrospectively removed the disqualification and consequentially even if a person was holding an office of profit he stood released from any such disqualification retrospectively. The respondent No. 4 had not been declared to be disqualified. In view of the aforesaid stated position of law in the aforesaid decision of the Apex Court in a challenge raised to the Amending Act on the ground of Article 14 or a discrimination between two classes of members is of no avail, inasmuch as, if the legislature in its wisdom has granted an exemption to a set of elected members of the Assembly or Council from being treated as disqualified, they form a separate class and their comparison with other M.L. As. and M.L. Cs. so as to infer disqualification does not arise. A disqualification can be incurred on a happening of a particular contingency. In such circumstances the same having a vital consequential effect has to be applied strictly and cannot be made the basis of argument of parity as urged by Sri Shukla, learned counsel for the petitioner.
10. The challenge raised, therefore, does not appear to be founded on any correct logic and even otherwise since the tenure of the Assembly in which the respondent No. 4 was elected has also run out and he has ceased to be the Chairman of U.P. Jal Nigam there is no occasion for this Court now to disqualify him and consider granting any relief as prayed for.
11. The writ petition is accordingly Rejected.
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