MAHACHANDRA PRASAD SINGH Vs. CHAIRMAN BIHAR LEGIS COUNCIL

JUDGEMENT

(1.) This petition, under Article 32 of the Constitution, has been filed for quashing the order dated 26th June, 2004 of Chairman of Bihar Legislative Council holding that the petitioner is disqualified for being a member of the House under paragraph 2(1)(a) of the Tenth Schedule read with Article 191(2) of the Constitution and consequently the seat held by him in the Bihar Legislative Council had fallen vacant from the said date.

(2.) The petitioner was elected as a member of the Bihar Legislative Council (MLC) from Tirhut Graduate Constituency as a candidate of Indian National Congress. The notification for holding elections to Fourteenth Lok Sabha was issued in March, 2001. The petitioner contested the said election from Maharajganj Parliamentary Constituency as an independent candidate. Shri Salman Rageev, a member of Bihar Legislative Council, sent a petition to the Chairman of the Legislative Council on 10th June, 2004 stating, inter alia, that the petitioner, who was a member of the Congress Party, had contested the parliamentary election from Maharajganj Constituency as an independent candidate and consequently in view of the provisions of the Tenth Schedule to the Constitution he had become disqualified for being a member of the House. The petitioner was asked to submit his explanation vide letter dated 12th June, 2004 of the Secretary of the Council. After considering the explanation offered by the petitioner, the Chairman of the Legislative Council passed the impugned order dated 26th June, 2004 holding that the petitioner had contested the election for Bihar Legislative Council in the year 1998 as a candidate of the Congress Party and was a member of the said political party and that he had contested the Lok Sabha Election, 2004, as an independent candidate, and thus he had voluntarily given up his membership of the Congress party and, therefore, he was disqualified for being a member of the House in view of paragraph 2(1)(a) of the Tenth Schedule read with Article 191(2) of the Constitution and the seat held by him in the House has become vacant.

(3.) Shri. P. S. Mishra, learned senior counsel, has raised three contentions in assailing the order dated 26th June, 2004 passed by the Chairman, Bihar Legislative Council. The first submission is that in absence of compliance of Rules 6 and 7 of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994, the assumption of jurisdiction by the Chairman in initiating the proceedings, whereunder the petitioner was held to be disqualified for being a member of the House, was illegal. The second submission is that there was violation of principles of natural justice as the material relied upon by the Chairman was not disclosed to the petitioner nor a proper opportunity of personal hearing was afforded to him. The third and the last submission is that the petitioner had not voluntarily given up membership of a political party by contesting the Lok Sabha Election as an independent candidate and, therefore, he had not incurred any disqualification within the meaning of paragraph 2(1)(a) of the Tenth Schedule.