RAMAKRISHNA HEGDE Vs. STATE

JUDGEMENT

(1.) Briefly stated the facts leading to the writ petition are :

(2.) The third respondent filed a petition dated 30-12-1989 under Art. 192 of the Constitution of India to His Excellency the Governor of Karnataka contending that the post of Deputy Chairman of the Planning Commission has the status of a Cabinet Minister of Union of India; the incumbent of the said post is entitled to receive all benefits of a Cabinet Minister; therefore the aid office was capable of yielding the pecuniary gain and it is an office of profit attracting Art. 191(1)(a) of the Constitution of India; hence action is to be taken as the petitioner has incurred disqualification under the said Article. The Governor of Karnataka referred the complaint of the third respondent under Art. 192(2) of the Constitution to the second respondent-Chief Election Commission to obtain opinion on the question as to disqualification of the petitioner. The petitioner received a notice from the second respondent to answer the complaint. He replied to the said notice raising various objections. He has specifically stated in the reply that so long as the incumbent of the office of the Deputy Chairman of the Planning Commission did not draw any salary other than the compensatory allowance he will not incur disqualification under Art. 191(1)(a) of the Constitution. He has specifically stated that as per the terms of the appointment order-Annexure-A he could draw no salary; therefore there was no question of the petitioner holding office of profit and that the petitioner as a matter of fact also did not draw any salary. It was further pointed out that in view of the provisions of the Act the office held by the petitioner as Deputy Chairman of the Planning Commission on the terms mentioned did not attract disqualification under Article 191(1)(a) of the Constitution.

(3.) Since the second respondent did not proceed with the complaint for some time the third respondent filed W.P. No. 17666/90 before this court seeking a writ of mandamus to the second respondent to furnish its opinion. In the said writ petition the petitioner was the second respondent. The learned single Judge rejected the writ petition by his order dated 29-8-1990 holding that the provisions of Art. 191 prima facie were not attracted to the facts of the case in view of he fact that the petitioner had ceased to be the Deputy Chairman of the Planning Commission. Aggrieved by the said order of the learned single Judge, the third respondent took up the matter in W.A. No. 1963/90. The Division Bench of this Court disposed of the said writ appeal on 13-3-1991 directing the second respondent to dispose of the matter expeditiously and at the same time set aside the order of the learned single Judge without hearing the petitioner as he was deleted from the array of the respondents in the said writ appeal at the instance of the third respondent. Thereafter the second respondent having heard parties and their Counsel tendered its opinion to the Governor of Karnataka under Art. 192(2) of the Constitution in Reference Case No. 1/90 dated 4-7-1991. On the basis of the said opinion rendered by the second respondent the Governor of Karnataka by his order dated 6th Aug. 1991 Annexure J has disqualified the petitioner from the Membership of the Karnataka Legislative Assembly with effect from 5-12-1989. Hence, this writ petition is filed seeking a writ in the nature of certiorari quashing the order Annexure J dated 6-8-1991.