NAGESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE dispute in this letters patent appeal arising out of a writ petition, CWJC No. 3159 of 2001 [reported in 2002(1) PLJR 131], relates to the validity of election of respondent no. 4 Sahid Ali Khan (hereinafter referred to as 'the respondent ') as member of the Bihar Legislative Assembly in the 2000 Assembly Elections. The writ petition was for a writ of quo warranto or any other appropriate writ commanding the respondent to vacate the seat as member of the Legislative Assembly. According to the appellants, being holder of an office of profit as Chairman of the Patna Industrial Area Development Authority (PIADA) the respondent was disqualified for contesting the election and being elected as member of the Legislative Assembly by reason of bar contained in Article 191(1)(a) of the Constitution of India. The petition having been dismissed, they have come in this letters patent appeal.

(2.) THE case of the appellants so far as relevant, briefly stated, is as follows. The respondent contested the election to the Bihar Legislative Assembly from Sitamarhi Assembly constituency at the elections held in 2000 and won the election by a margin of only 35 votes. The appellants were not aware of the fact that the respondent was holding an office of profit under the Government as Chairman of PIADA and therefore, disqualified from contesting the election. They recently came to know about it when the respondent came on tour in a car with becon red light. The documents which they obtained from different government offices confirmed that he was holding a public office of profit and thus suffered from disqualification, but on a false declaration in the nomination form, Form no. 28, prescribed under Rule 4 of the Conduct of Election Rules, 1961, he had contested the election. The appellants pleaded that the appointment of Chairman of the Industrial Area Development Authority under the Bihar Industrial Area Development Authority Act, 1974 is made by the State Government and he holds office at the pleasure of the State Government; that the pay, allowances and other expenses of the respondent as Chairman of PIADA are borne out from the State exchequer subject to the control of the Accountant General. The respondent was appointed as Chairman of PIADA on 4.9.91 and availing of the benefits by way of pay, allowances etp. admissible to Minister of State. The appellants gave particulars of pay, allowances and perquisites in the writ petition which it is not necessary to notice in this judgment. According to the appellants they were under the impression that respondent was Honorary Chairman of PIADA but the said impression was recently found to be incorrect. In the above premises the appellants contended that continuance of respondent as member of the Legislative Assembly and his participation in the proceedings thereof are in contravention of the Constitutional provisions warranting immediate interference by this Court.

(3.) THE stand of the State of Bihar in its counter affidavit was rather non -committal. With reference to various paragraphs of the writ petition containing averments regarding pay, allowances etc. being paid to the respondent, among other things, it stated that "they are either matter of records or matter regarding which no specific reply is required to be given by this respondent". In the facts and circumstances, for the reasons mentioned thereinafter, I am satisfied that the post of Chairman of PIADA is an office of profit under the State Government and the respondent was thus holding an office of profit when he contested the election to the Bihar Legislative Assembly at 2000 Assembly Elections.