VISHNU SAHAI, J. - (1.) Petitioner No.2 Major Sheshmani Nath Tripathi (Retd.), who styles himself as the President of Petitioner No.1 - Social Action for People's Rights, an association of individual citizens of India possessing rights and freedom guaranteed to a citizen of India, has preferred the present writ petition (which has been registered under the caption of Public Interest Litigation), under Article 226 of the Constitution of India with a prayer that this court be pleased to declare the appointment of the present Chief Minister of U. P. Miss Mayawati, made on 3rd May, 2002, when the U. P. Legislative Assembly was non-existent, as unconstitutional and ultra vires of clause (2) of Article 164 of the Constitution of India. It has also been prayed that any other relief which this Court feels just and proper be granted to the petitioners.
(2.) In short, the factual matrix from which this writ petition arises, is as under :- On 26-2-2002 Election Commission issued a notification under S. 73 of the Representation of the People Act, 1951 constituting the 14th Legislative Assembly in the State of Uttar Pradesh. Since the election results showed that the mandate of the voters was fractured and no single party was in a position to individually form a Government; on 26-2-2002, itself, Mr. Babu Ram Kushwaha, the Private Secretary of Vice-President of Bahujan Samaj Party, (hereinafter referred to as B. S. P.,) informed His Excellency. The Governor of Uttar Pradesh that B. S. P. will not support Mr. Mulayam Singh Yadav of Samajwadi Party to form the Government. Mr. Mulayam Singh Yadav met the Governor and staked his claim to form the Government, on which the Governor asked him to furnish a list of the members supporting his claim but he did not furnish the same. Mr. Raj Nath Singh, leader of the Vidhan Mandal Dal of Bhartiya Janata Party along with Mr. Lalji Tandon also met the Governor and apprised him that Bhartiya Janta Party had decided not to support any party and the said stand was reiterated by letter dated 5-3-2002. A day earlier i.e. on 4-3-2002, Mr. Ajit Singh, President Rashtriya Lok Dal had met the Governor and informed him in writing that his party consisting of 14 M. L. As would not support the Samajwadi Party in formation of the Government. In these circumstances, the Governor sent his report to the President of India, who on 8-3-2002 issued a proclamation under Article 356 of the Constitution of India, whereby some provisions of the Constitution were suspended; the assembly was kept in suspended animation; and President's rule was imposed in the State of Uttar Pradesh. Between 27-4-2002 and 29-4-2002 the Presidents of various political parties like Janata Dal (United), Rashtriya Lok Dal, legislators of Loktantrik Party, Mr. Raj Nath Singh, leader of B. J. P. Vidhayak Dal, leader of Vidhan Mandal Dal of Lok Jan Shakti Party and independent M. L. A's from Puwayan (District Shahjahanpur) Mr. Mithilesh Kumar, from Hasanpur (District Gautam Budh Nagar) Mr. Arun Kumar Yadav, from District Gorakhpur, Mr. Jitendra Kumar Jaiswal, and Mr. Ram Nath Saroj (from District Pratapgarh) informed the Governor of U.P. that they were prepared to support the Government to be formed under the leadership of Ms. Mayawati. On 29-4-2002 Ms. Mayawati (leader of Vidhan mandal Dal of B. S. P. and Vice-President of B. S. P. ) requested the Governor of U.P. that B. S. P. under her leadership had decided to form a coalition Government with Bhartiya Janata Party and Sahyogi Dals (supporting parties) and the total number of such members was in majority and they had given her letters of support. Consequently Ms. Mayawati requested the Governor to invite her to form a coalition Government. On the report of the Governor of U. P., on 3-5-2002, the proclamation dated 8-3-2002 imposing the President's rule in the State of U.P. was revoked and on the said date, itself, Ms. Mayawati was sworn in as the Chief Minister of Uttar Pradesh. Some other ministers were also sworn in on her advice, and she was allowed 21 days time to prove her majority in the U. P. Legislative Assembly. On 13-5-2002 newly elected members of the Legislative Assembly were administered oath and affirmation, in terms of Article 188 of the Constitution of India. On 14-5-2002 Mr. K. N. Tripathi was elected as Speaker of the Legislative Assembly, under Article 178 of the Constitution of India. On 17-5-2002 Legislative Assembly passed the vote of confidence in favour of Ms. Mayawati, the Chief Minister of U. P.
(3.) We have heard petitioner No.2 in person for the petitioners and Mr. S. C. Misra, learned Advocate General of the State of U. P. for the respondent (State of U. P.). The main submission of petitioner No.2 is that Article 164(1) of the Constitution of India, which provides that the "Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor", is subject to the provisions contained in Article 164(2) of the Constitution of India, which read that "the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State." Petitioner No.2 strenuously urged that since the Council of Ministers by virtue of the provisions contained in Article 164 (2) of the Constitution of India is collectively responsible to the Legislative Assembly of the State and on 3-5-2002 the members of the Legislative Assembly of the State had not taken oath or affirmation in terms of Article 188 of the Constitution of India and the Speaker had not been elected as mandated by Article 178 of the Constitution of India the Legislative Assembly could not transact business in terms of Article 189 of the Constitution of India and the Constitutional mandate that the Council of the Ministers was collectively responsible to the Legislative Assembly of the State was breached and the action of the Governor of U. P., under Article 164(1) of the Constitution of India, in appointing Ms. Mayawati as the Chief Minister of the Council of Ministers was ultra vires of the provisions contained in Article 164(2) of the Constitution of India.;