RADHA KANT YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner in this writ petition, filed as Public Interest Litigation assails the nomination of respondents 3 to 6 to the State Legislative -Council (respondent no. 6 has ceased to be a member Of the Council during the pendency of this writ petition and is therefore no longer in reckoning in this case).

(2.) ACCORDING to the petitioner the impugned nominations are void, illegal and ultra vires Article 171 (3)(e) read with Article 171 (5) of the Constitution. It is because the nominations were made in a manner and for reasons not sanctioned by the aforesaid constitutional provisions; the nominations were made in complete disregard of the constitutional concept of representation from different fields as envisaged under Article 171 (5) and the persons nominated (respondents 3 to 5) did not possess the qualifications as mandated under Article 171 (5) for being nominated as members of the Council. According to the petitioner's case the impugned nominations also suffered from malafide and amounted to a fraud on Article 171 (3) of the Constitution. In this regard, however, it is necessary to state that some allegations of malafide (as contained in paragraph 5 of the writ petition) were later, deleted with the permission of the court and Shri Laloo Prasad Yadav, the Chief Minister of Bihar was taken out of the array of respondents.

(3.) AT an early stage in the hearing of the case Mr. Additional Advocate General No. II indicated that he proposed to oppose the writ petition primarily on the basis of two earlier decisions; one by the Calcutta High Court in Biman Chandra Bose Vs. Dr. H.C. Mookerjee & Ors., 56. C.W.N. 651 and the other by a bench of our own Court in Vidyasagar Singh Vs. Krishna Ballabha Sahay & Ors., AIR 1965 Pat 321. The Additional Advocate General No. II cited the Calcutta decision in support of the proposition that the validity or invalidity of the nominations made by the Governor for membership of the Council cannot be enquired into by a court. The Calcutta decision need not detain us for long as it is plain from the judgment that in that case the court had before it a lis in personem; the petitioner in that case claimed that he was better qualified for nomination than those nominated by the Governor as members of the Legislative Council and challenged their nominations on that ground. Further, the objection raised by the Additional Advocate General is fully answered by observations made in that decision itself as may be seen at page 658 of the report.