AJAY BHATT Vs. STATE OFUTTARAKHAND

JUDGEMENT

(1.) SINCE in the present special appeal as well as in the writ petition, identical questions of fact and law are involved, therefore, with the consent of learned counsel for the parties, special appeal and writ petition were taken up for hearing together and are being disposed of by this common judgment. Present appeal is filed assailing the judgment and order dated 9.7.2013 passed by the learned single Judge of this Court, whereby writ petition No. 1066 of 2013 (M/S) was dismissed.

(2.) WRIT Petition No. 1066 of 2013 (M/S) was filed before the learned single Judge of this Court assailing Ordinance No. 01 of 2013 known as The Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Ordinance, 2013 notified vide notification No. 178/XXXVI (3)/2013/36 (2)/2006 dated 13.4.2013, and further seeking a mandamus declaring respondent No. 4, namely, Dr. Harak Singh Rawat, to be disqualified for being member of Uttarakhand Legislative Assembly in view of Article 191 of the Constitution of India.

(3.) BRIEF facts of both the writ petitions, inter alia, are that respondent No. 4 Dr. Harak Singh Rawat was elected as Member of the State Legislative Assembly in the general election held in the month of January, 2012; respondent No. 4 was inducted as Cabinet Minister on 9.6.2012; thereafter respondent No. 4 was appointed as Director and Chairman of Tarai Seeds and Development Corporation vide orders dated 7.8.2012; Respondent No. 4 was also holding office of the Chairman of Uttarakhand Seed and Organic Production Certification Agency as well as Chairman of Uttarakhand Purva Sainik Kalyan Nigam; on 2.4.2013, State President of Bhartiya Janta Party (BJP) submitted a memorandum to His Excellency the Governor of the State stating therein that respondent No. 4, the Hon'ble Minister of Agriculture, is holding office of profit of Uttarakhand Purva Sainik Kalyan Nigam Ltd.,. Uttarakhand Seed and Organic Production Certification Agency and Uttarakhand Seeds and Tarai Development Corporation, therefore, in view of Article 191(1)(a) of the Constitution of India, respondent No. 4 be declared to be disqualified for being a member of Uttarakhand Legislative Assembly; on 10.4.2014 another memorandum was submitted before His Excellency the Governor of State making the same request; on 13.4.2013, without deciding the memorandums submitted before His Excellency the Governor of the State on 2.4.2013 as well as 10.4.2014, His Excellency the Governor of the State was pleased to promulgate Ordinance No. 01 of 2013 known as the Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Ordinance, 2013, which was notified on 13.4.2013 with the stipulation that Ordinance shall be deemed to have come into force with retrospective effect i.e. 13.3.2013. By this Ordinance, amendment is incorporated in Section 3 of the U.P. State Legislature (Prevention of Disqualification) Act, 1971 by inserting five bodies at Serial Nos. 58 to 62. Further providing that notwithstanding such amendment anything done or any action taken under the Principal Act shall be deemed to have been done or taken under this Act. Net result of the amendment in Section 3 is that all the three Corporations i.e. Uttarakhand Seeds and Tarai Development Corporation Ltd., Uttarakhand Purva Sainik Kalyan Nigam Ltd. and Uttarakhand Seed and Organic Production Certification Agency were brought outside the definition of "office of profit". Feeling aggrieved, Writ Petition No. 1066 of 2013 (M/S) was filed challenging the Ordinance, and thereafter Uttarakhand State Legislature (Prevention of Disqualification) (Amendment) Act, 2013 (Uttarakhand Act No. 32 of 2013) was enacted and published on 1.10.2013 in the official gazette, therefore the subsequent writ petition No. 15 of 2014 (M/S) was filed.