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Jan Hitai v. State of U.P. and Ors. - (High Court of Allahabad) (01 May 2017)

A disqualification can be incurred on happening of a particular contingency



Present writ petition has been filed questioning constitutional validity of Uttar Pradesh State Legislative (Prevention of Disqualification) (Amendment) Act, 2006 and to quash opinion rendered by Election Commission of India dated 3rd April, 2006 and order of Governor dated 21st April, 2006 in respect of disqualification of Respondent No. 4, a member of the then U.P. Legislative Assembly as being violative of fundamental rights and constitutional guarantees under Constitution of India. It is alleged that, 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.

Judgment in case of U.C. Raman v. P.T.A. Rahim, explains that, 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, office of Chairperson of Haj Committee was not an office of profit.

Constitutional validity of Amending Act has been upheld in case of Consumer Education and Research Society v. Union of India and Ors. clearly holding that, Amending Act retrospectively removed disqualification and consequentially even if a person was holding an office of profit, he stood released from any such disqualification retrospectively. Respondent No. 4 had not been declared to be disqualified. In view of stated position of law in aforesaid decision of Apex Court in a challenge raised to Amending Act on ground of Article 14 of Constitution or a discrimination between two classes of members is of no avail, as, if legislature in its wisdom has granted an exemption to a set of elected members of 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, same having a vital consequential effect has to be applied strictly and cannot be made basis of argument of parity as urged by learned counsel for Petitioner.

Challenge raised, therefore, does not appear to be founded on any correct logic and even otherwise since, tenure of Assembly in which Respondent No. 4 was elected has also run out and he has ceased to be 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.

Relevant : U.C. Raman v. P.T.A. Rahim,MANU/SC/0674/2014 , Consumer Education and Research Society v. Union of India and Ors. MANU/SC/1499/2009


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