JOGENDRA NATH HAZARIKA Vs. STATE OF ASSAM

JUDGEMENT

(1.) IN this application the petitioner prays for a Writ of quo warranto directing respondent 3 to vacate the office of the Chief Minister of Assam and respondents 4 to 12 to vacate the offices of the Council of Ministers and a Writ in the nature of mandamus for declaration that the order of appointments of the Chief Minister and the Council of Ministers appointed by the Governor of Assam under Article 164 of the Constitution as illegal, unconstitutional and invalid. He prays for a declaration that he is the Chief Minister of Assam and he should be allowed to resume his office to exercise his powers and discharge the duties of the Chief Minister.

(2.) AN apercu of the petitioner's case may be summed up as follows: - -

(3.) THE following state of affairs clearly emerge from the petition as well as the contentions of the learned counsel for the petitioner : (a) That there is absolutely no allegation that respondents 3 to 12 are not qualified to hold the offices; (b) Even assuming that there are alleged defects in the appointments, these cannot be immediately cured and followed by reappointment of the respondents. It is not questioned that the Governor can rectify the alleged irregularity by expressly dismissing the outgoing Ministry, if he has not so done as yet, and forthwith reappoint respondents 3 to 12; (c) That during the Ministry headed by the petitioner there was a failure of the constitutional machinery in Assam and the Government could not be carried on in accordance with the provisions of the Constitution. It could not be denied by the counsel for the petitioner that failure of the constitutional machinery in a State is a serious lapse on the part of those in charge of the Government; (d) that there was a difference of opinion between the Governor and the President on the one side and the petitioner on the other side as to whether there was a failure of the constitutional machinery, before the Presidential Rule was imposed. The petitioner contends in the petition that there was no such failure whereas the report of the Governor is otherwise. As such, loss of confidence by the Governor in the petitioner and/or his Ministry is writ large; (e) It has been honestly stated by the petitioner (in para 17 of his petition) that the presidential Rule was imposed to ensure that the Government of the State could be carried in accordance with the provisions of the Constitution. Indeed, the object of Presidential Rule is to instal a stable Government in whom the Governor can have confidence; (f) That the present Ministry is composed of some of the Ministers who were in the Council of Ministers of the petitioner holding responsible position. It is admitted by the learned counsel for the petitioner that respondents 4, 6 and 12 were Ministers in the Ministry of the petitioner, vide Assam Gazette (Extraordinary), dated Sept. 11 and 17, 1979. As such, at least 3 of the Ministers in the Council of Ministers of the petitioner left his Ministry and joined the present Ministry. It is an added factor to establish loss of confidence of the Governor in the petitioner; (g) The petitioner himself admits in his representation to the Governor, vide Annexure 'E', that his cabinet required 'reconstitution'. It follows therefore that, (i) the Council of Ministers required 'reconstitution' when the Governor had exercised his discretion to appoint the present Ministry. It is a factor which supports the legitimacy of loss of confidence by the Governor; (ii) it also establishes that there was no Council of Ministers in fact which the Governor could consult; (h) The next Session of the Assembly is round the corner. The Assembly, it has been stated at the Bar, is likely to be convened in the next month or in early March. It is beyond question that the petitioner and/or the Members of the Assembly can have their domestic remedy in the next Session of the Assembly itself. Therein, the petitioner and his followers can call upon the present Ministry to establish its strength and cause its downfall. It shows existence of an alternative forum which can right the alleged wrongs and grant positive and affirmative relief to the petitioners. (i) There is absolutely no allegation that the Ministry is that of any particular political party. It has been merely alleged in the petition that respondent 3 belongs to Congress (I), however, there is no averment in the petition or contended before me that the other Ministers are of any particular political party or parties and/or the Ministry was of a particular recognised political party.