- (1.) REASONS for the findings on Issues No. 1 (a) and (b) : On the 12th May, 1975, after I had heard the counsel for the parties, I had recorded the following findings on issues Nos. 1 (a), 1 (b). "I, therefore, answer issues Nos. 1 (a) and (b) in the negative and against the petitioners."
(2.) I had also indicated that the reasons would be given later. I now proceed to give the reasons for the above findings. The two issues Nos. 1 (a) and (b) are as follows :- 1 (a) Whether the respondent No. 1 was disqualified from being chosen as a Member of the legislative Council of the State since he was at the time of the filing of his nomination holding the office of the Chairman of the Legislative Council, U. P. ? (b) Whether the respondent No. 1 was holding an office of profit under the State Government and was precluded from being elected a Member of the Legislative Council of the State in view of the provisions of Article 191 of the Constitution of India ? Those two issues required no evidence and the learned Counsel for the parties were heard in support of their respective contentions. Before I advert to the argument raised on behalf of the petitioner it will be relevant to mention the specific case that was taken in the election petition. The relevant averments are contained in paragraph 6 of the election petition and the relevant ground in respect thereof is raised in paragraph 33 (iv). This paragraph of the election petition reads as follows:- 6. That the respondent No. 1 (who is the Returned Candidate) had filed his nomination paper during the term of his office of Chairman of Legislative Council, U. P. without resigning from the said office and as such an objection was filed against his candidature by the Respondent No. 3, on 3-3-1974 inter alia on the ground that Shri Virendra Swaroop, respondent No. 1 was getting salary under the provisions of the U. P. State Legislature (Officers Salaries and Allowances) Act, 1952 and as such he was clearly disqualified from being chosen as a member of the Legislative Council of State under Article 191 of the Constitution of India and further that the Acts made by the U. P. State Legislature for prevention of disqualification also do not include the office of Chairman of the U. P. Legislative council. The true copy of the objections fled by petitioner No. 3 is Annexure III to this petition." Paragraph 33 (iv) contains the ground on which the election was challenged. Ground No. (iv) reads as follows: "Because on the date of his election the returned candidate Shri Virendra Swaroop was disqualified to be chosen to fill the seat under Article 191 of the Constitution of India as he held the office of profit, under the Government."
(3.) THE contention of the learned counsel for the petitioner is that the respondent No. 1 was precluded from being elected as a Member of the Legislative council, Uttar Pradesh as he was holding an office of profit under the State Government and that no exemption had been made under the Constitution or under any provision of law to except the holder of such office from being disqualified from being chosen as a Member of the Legislative Council of the State. The relevant provision of the Constitution is contained in Article 191 (1) and clause (a). It reads as follows:- "191. (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State- (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder:" It, therefore, makes it clear that no person can be chosen to be a Member of the Legislative Council of a State if he holds an office of profit under the State Government except in a case where the holding of such office has by a law been declared not to be a disqualification. In the present case learned counsel for the petitioner contended that the respondent No. 1 held, at the time of the filing of his nomination paper, the office of the Chairman of the Legislative Council, Uttar Pradesh; it was an office and an office of profit as well. He further contended that this was an office of profit under the State Government. The controversy in the present case is limited to only one question namely, whether the respondent No. 1 held an office of profit under the State Government. Learned Advocate-General appearing for the respondent No. 1 very fairly conceded that the respondent. No. 1 was not only holding an office but an office of profit, but it was not under the State Government. He also conceded that there was neither any provision in the constitution nor any other law under which the holding of such an office was declared not to be a disqualification. The principal question, therefore, to be considered in this case is whether the respondent No. 1 held an office of profit under the State Government at the time when he filed the nomination paper. If the answer is in the affirmative then the holding of such an office will be a disqualification but if the answer is in the negative, then it would not amount to any disqualification for the respondent No. 1 from being chosen as a Member of the Legislative Council, Uttar Pradesh. ;