A K SUBBAIAH Vs. RAMAKRISHNA HEGDE

JUDGEMENT

(1.) This writ appeal is directed against the judgment and order rendered by the learned single Judge, in Writ Petition No. 18188 of 1991 on 17th Sept. 1992, by which the writ petition was allowed. The writ petition was moved by respondent No. 1 herein, challenging the order of the Governor of Karnataka passed under Art.192(1) of the Constitution of India, holding that the respondent No. 1 (the writ petition) had become disqualified from being a Member of the Karnataka Legislative Assembly. The said decision was rendered by the Governor on the basis of the opinion of the Election Commission to that effect. The learned single Judge took the view that the said decision of the Governor was erroneous and was liable to be set aside by issuance of a writ under Art. 226 of the Constitution. That has brought the original respondent 3, who was the complainant before the Governor and at whose instance the controversy saw the light of the day, to the appellate Court, under Sections 4 and 10 of the Karnataka High Court Act, 1961.

(2.) A few introductory facts deserve to be noted at the outset, to highlight the controversy between the contesting parties. Respondent No. 1 (the writ petitioner) was elected on 27th Nov. 1989 asa Member of the Karnataka Legislative Assembly from Basavanagudi Constituency. Almost simultaneously, he was appointed as Deputy Chairman of the Planning Commission, a post which is equivalent to the rank of a Cabinet Minister. This post of Deputy Chairman has been in existence as an independent post or office answering the description of a cadre post entitling the incumbent of the office several benefits including salary, perquisites etc.

(3.) The Karnataka Legislature enacted Act No. 4 of 1957 known as the Karnataka Legislature (Prevention of Disqualification) Act, 1956 [hereinafter referred to as the 'Act'], which came into force on and from 24/01/1957. Section 3 of the Act, provides for removal of certain disqualifications adding a proviso regarding non-application of the removal of disqualifications to certain offices. On 30/12/1989, the present appellant submitted a Memorandum to the Governor of Karnataka urging him to exercise his power under Art. 192 of the Constitution of India to disqualify the first respondent as a Member of the Legislative Assembly. His contention was that the first respondent was a holder of an office of profit under the Central Government as he was appointed as Deputy Chairman of the Planning Commission, which post carried remuneration by way of salary, perquisites etc. The Governor, before taking a decision, naturally referred the complaint under Art.192(2) of the Constitution, for opinion of the Election Commission. The Election Commission, after hearing the concerned parties, on 5/12/1989 came to the conclusion that the first respondent was disqualified to act as a Member of the Legislative Assembly, as from the day he had assumed office of the Deputy Chairman of the Planning Commission. On the basis of the said opinion, the Governor of Karnataka, on 6/08/1991, issued an order in exercise of his power under Art.191(1) of the Constitution, disqualifying the first respondent to function as Member of the Legislative Assembly. That action of the Governor, brought the first respondent to this Court in Writ Petition No. 18188 of 1991 dated 6-8-1991 seeking a writ in the nature of certiorari for quashing the said order of the Governor of Karnataka. On 17th Sept. 1992, after hearing the contesting parties, the learned single Judge quashed the order of the Governor by issuing a writ of certiorari. It is this order, as noted earlier, which has resulted in the present writ appeal.