Bhanubhai M. Raval vs Union of India and others

Sharad Manohar, J.—Question involved in the Petition and the statement of skeleton facts giving rise to the question: A question of quite some importance is raised in this petition by the petitioner, who is a voter in the relevant constituency. Before getting elected, in effect, to the position of a Member of the Pradesh Council of the Union Territory of Diu & Daman. Respondent No. 4 was prosecuted and was ultimately charged with various offences, including the offence of murder. On the very date on which he became a Member of the Council, he was also appointed by the Administrator of Diu & Daman as the Councillor, which is an equivalent of a Minister in the other States. In spite of this position, the prosecution which was pending against him resulted in an order against him. He was convicted by the Sessions Court of various offences, including the offence of murder. No doubt he has filed an Appeal against that order of conviction and the Appeal is pending hearing. But the fact remains that his conviction continues. It is neither suspended nor made inoperative by any order of any court as such. No doubt Respondent No. 4 is released on bail; but the conviction remains unaffected by any order of the Court as such. It is in these circumstances that the present petition is filed by the peti- tioner, who is a voter in the relevant constituency, for an appropriate order so that his continuation as a Councillor as also as a Member of the Council will be terminated. We have to consider as to what effect the conviction has upon the right of respondent No. 4 to continue as a Member of the Council and as the Councillor.

Relevant facts stated in chronological order. The relevant facts may be stated, very briefly, as follows:--

On 30-6-1983 an incident took place in which two persons happened to be murdered. The allegation is that it was a case of dacoity. Present Respondent No. 4 was, allegedly, involved in that incident and he was prosecuted along with 42 others and was charged of various offences, including the offence of murder.

In 1984 in spite of the pendency of the prosecution against him. Respondent No. 4 was successful in getting himself elected to the Goa Assembly from the Diu Constituency.

On 29-5-87 Daman & Diu (Administration) Regulation, 1987 came into force. As a result of the said Regulation, the new State of Goa, with Legislative Assembly of its own, came into existence and the remaining two territories viz. Diu & Daman continued to be the Union Territories without Legislative Assemblies.

It may be stated at this stage itself that even though Diu & Daman continued to be the Union Territories, pure & simple, without a Legislative Assembly as such, they have a Pradesh Council and from out of the Pradesh Council a few of its members are appointed as the Councillors which is, for all practical purposes, a position equivalent to that of a Minister of a State with a legislative assembly. This position has been brought about by "Daman & Diu (Administration) Regulation 1987. The subsequent Goa, Diu and Daman Reorganisation Act, which came into force on 9-7-1987 has not brought about any change in this position.

On 3-8-87 Respondent No. 4, who was till then a member of the Goa Legislative Assembly, became a Member of the Diu & Daman Pradesh Council and on the very day he was also appointed by the Administrator as a Councillor (which is a post practically equivalent to that of a Minister).

On 10-3-88 Appeal No. 425 of 1988 was filed by him in this Court and bail was obtained by him.

The present Petition is filed by the petitioner, who is a voter in Respondent No. 4''s constitutency, on 27-10-88.

Petitioner''s plea: The petitioner''s plea is that the conviction of respondent No. 4 (hereinafter, the respondent) continues unaffected and that the bail obtained by him from this Court does not affect the factual position that his conviction continued. Hence, according to the petitioner, the provision of clause 4 of the Daman & Diu (Administration) Regulation 1987 (hereinafter, the Regulation) inexorably comes into force and by virtue of said clause 4 of the said Regulation, read with Section 11 of the Goa, Daman & Diu Village Panchayats Regulation 1962 (hereinafter the Panchayat Regulation) the respondent has incurred disqualification to continue as. Member of the Pradesh Council and consequently also as a Councillor.

Clause 4 of the Regulation runs as follows :

Relevant "4. A person shall be disqualified legal for being nominated as, and for position being, a member of the Pradesh set out Council if he has incurred, or or incurs any of the disqualification para specified in section 11 of the Goa, phrased. Daman and Diu Village Panchayats Regulation, 1962."

Under Clause 17 of the Regulation, an Administrator is empowered to appoint two persons as Councillor from amongst the members of the Pradesh Council.

The relevant portion of clause 11 of the Panchayats Regulation runs as follows:--

"Disqualification of Membership -

A person shall be disqualified for being chosen and for being, a member of a panchayat if he ..........

(i) has been convicted by Criminal Court of any offence involving moral turpitude and sentenced to imprisonment for not less than six months and five years have not elapsed since his release."

Petitioner''s contention & the authorities in its support.-- The contention of the petitioner is that the respondent is not entitled to continue either to be a member of the Council or Councillor as from the date of his conviction, the Appeal filed by him notwithstanding.

(A) In support of this contention, Mr. Pai placed strong reliance on the Judgment of the Madhya Pradesh High Court, reported in, Purushottamlal Kaushik Vs. Vidyacharan Shukla, .

Shukla''s case examined.-- In that case the Madhya Pradesh High Court was called upon to consider the effect of Section 8(2) & (3) of the Representation of the People Act, which is evidently a statute Pari Materia with the statutory provisions contained in the Regulation with which we are concerned. u/s 8(2) of the Representation of the People Act, a person convicted by a Court in India for any offence and sentenced to imprisonment for not less than 2 years shall be disqualified for a further period of 5 years since his release. However, under sub-section (3) of said S. 8, such disqualification does not take effect in the case of a person, who on the date of conviction is a Member of the Parliament of Legislature of a State, until 3 months have elapsed from the date or, if within that period, an Appeal or Application for Revision is filed by him, until the Appeal or Application is disposed of by the Court. It is, thus, clear that the very filing of the Appeal has the effect, under said S. 8(3) of the Representation of the People Act, of eclipsing the conviction resulting in suspension of the disqualification."

The factual position with which the Madhya Pradesh High Court was dealing was that Vidyacharan Shukla was convicted of several offences in a Sessions Case. Admittedly, he was sentenced to imprisonment for not less than 2 years in that case. The execution of the sentence was no doubt suspended by the trial Court itself by releasing him on bail to present an Appeal to the High Court and after the Appeal was filed by him even the High Court continued his release on bail. Point, however, was that no judicial order was obtained nullifying or suspending the "conviction" as such.

While this was the position, a notification came to be issued under S. 30 of the Representation of the People Act for election of a member to the Lok Sabha. The time-table for the election was fixed, as per which 07-12-79 was fixed as the last date for filing the nomination, whereas 11-12-79 was the date of scrutiny. Shri Shukla''s nomination was objected to before the Returning Officer at the time of the scrutiny on the ground that his conviction and sentence resulted in his being disqualified for being nominated for the election. Shri Shukla''s plea was that the conviction ceased to operate the moment he filed the Appeal to the High Court, which was pending hearing on that date, and on the analogy of the law contained in sub-section (3) of S. 8 he contended that the filing of the Appeal resulted in suspension of the conviction so as to remove his disqualification, if any, for being nominated as a candidate for the election.

Ratio of Shukla''s case.-- We may mention here that the candidate''s case was not covered by sub-section 3 of S. 8 of the Representation of the People Act because he was not a sitting member of the Parliament. The only question that fell for the consideration of the Court was whether he was entitled to be nominated for the candidature and the factual position was that the disqualification which he had incurred by virtue of his conviction, which was subsisting on the date of the scrutiny of the nomination papers, was very much present on that date. The candidate, however, contended that since he had filed an appeal against the order of conviction, there was no finality attached to the conviction and hence, the disqualification could not be said to have been incurred by him.

This argument was repelled by the Madhya Pradesh High Court. The Court held that the likely order of acquittal that might be passed in favour of the candidate did not affect the factum of conviction subsisting on the date of the scrutiny. The Court held that:--

"Section 8(3) also indicates that mere filing of an Appeal or revision by a person other than a sitting member does not arrest the disqualification under S. 8(2) which automatically commences on the date of conviction. It is, therefore, not correct to say that S. 8(2) is attracted only as a result of such conviction by the last court of resort and not earlier."

Effect of the Judgment of the S.C. in the Appeal filed Shukla.-- Mr. Shukla filed an appeal to the Supreme Court against the said order of his disqualification. But by the time the Appeal came up for hearing, his Appeal against the order of conviction was allowed and his conviction was set aside. This order of acquittal naturally resulted in wiping off his conviction for all times, in the retrospect as it were. It was on this account that the Supreme Court allowed his appeal. The Judgment of the Supreme Court is Vidya Charan Shukla Vs. Purshottam Lal Kaushik, . From the perusal of the Judgment it can be seen that the Supreme Court has allowed the Appeal only on the ground that the order of acquittal resulted in the wiping off of the conviction for all times and, that, hence, there was no basis for the allegation of disqualification. Point to be noted is that the reasoning of the Madhya Pradesh High Court has not been found fault with by the Supreme Court. The supreme Court has not held that the mere filing of the appeal results in clouding or eclipsing of the conviction ordered by the trial Court.

M. P. High Court''s view approved.-- In our opinion, this authority applies on all fours to the facts of the present case. Here also, upon the order of conviction, the candidate has incurred disqualification and the contention is that the disqualification is lifted by the mere filing of the appeal against the order of conviction. Such a position was not accepted by the Madhya Pradesh High Court; the Supreme Court does not appear to have disagreed with the Madhya Pradesh High Court on this point; question, therefore, arises as to whether we will be justified in not following the judgment of the Madhya Pradesh High Court.

What was not argued before us.-- We may mention here that no argument was advanced before us as to why the said Judgment should not be followed by us, except, of course, the technical pleas which do not relate to the question as to whether in fact the disqualification was incurred or not. We will examine those pleas presently. But it needs to be stated at this stage itself that excepting those technical pleas no attempt was made to repel the petitioner''s submission that this was a case of the respondent''s conviction for offences involving moral turpitude and that the mere filing of the appeal resulted in undoing or eclipsing or clouding the order of conviction.

Position even on the assumption that certain arguments were advanced.-- But even assuming that such argument was advanced, we would be disinclined to accept the same. Whether an Appeal will eclipse or cloud the finality of the judgment under appeal will depend upon variety of circumstances. The effect that can be imputed to the filing of appeal is bound to differ according to the objects of the legislation. In the instant case, the evident object of the statutes such as the Representation of the People Act or the Regulations in question is to give a clean & decent administration to the citizenry. It must be assumed that the legislature did not want, at the helms of the affairs of the State, persons with unwired off convictions of offences. Words assume different meanings and colours in the context of the objects of the statutes in which the words are employed. Giving clean administration to the citizenry is, ex hypothezi, the object of every election statute. The object of such statute will be better fulfilled by the construction put upon the word "conviction" by the Madhya Pradesh High Court. With respect, therefore, we are in full agreement with the interpretation given by the said High Court to the said word "conviction".

Arguments advanced on behalf of Respondent.-- Let us now deal with the arguments advanced by Mr. More on behalf of the respondent. His two objections were in fact preliminary objections. But we did not deal with them uptil now, because, in our opinion, they need just to be stated to be rejected.

(a) His first plea was that regulation 12 of the Panchayats Regulation operated as an implied bar to the present Writ Petition. Under the said Regulation, the question whether a Member of the Panchayat had incurred any disqualification or not has to be referred to the prescribed Authority, whose decision on that point is made final.

We fail to notice any legitimacy of this argument. The only justification for urging this point is that S. 11 of the Panchayats Regulation has been borrowed by the instant Regulation for enumerating the disqualifications of the Members of the Council. But what is lost sight of is that all the provisions of the Panchayats Regulation are not made applicable to the law relating to disqualification. From the very nature of things, they could not be, Panchayat Regulation No. 12 relates to disqualification of the members of the Panchayat. That Regulation does not have ghost of application to what is to happen if any dispute about such disqualification starts as regards members of the Pradesh Council. The objection does not merit any further examination.

(b) The 2nd objection is equally untenable. The objection is that the question of the disqualification of membership of the legislative assembly of a Union Territory has to be referred for the decision of the President, whose decision on that point is made final. Reliance in this behalf is placed on S.14 of the Govt. of Union Territories Act, 1963.

The answer is identical as the above one. The disqualification contemplated in that case is that of a member of a Legislative Assembly of a Union Territory; it has no bearing upon the disqualification incurred by the member of the Pradesh Council.

Plea that Respondent would continue as a Member of the Goa Legislative Assembly.-- After the dictation of this Judgment started, Mr. More raised a 3rd objection, though not as a preliminary objection. According to him, the Petitioner was elected as a Member of the Legislative Assembly in the year 1984 and the learned Advocate would have us believe that his membership of the legislative assembly continued despite the fact that Diu & Daman ceased to be a Union Territory having a Legislative Assembly. The learned Advocate would have us believe that even if the respondent becomes disqualified to continue as a Member of the Pradesh Council, he would still continue as a member of the Goa Legislative Assembly.

The argument has no basis whatsoever, either in law or in fact. The respondent was a member of the Legislative Assembly of Goa, Daman & Diu representing the Diu constituency. Diu Constituency ceased being represented in the Assembly with effect from 29-05-87 by virtue of coming into operation of the Daman & Diu (Administration) Regulation 1987. The position is further confirmed by the Goa, Daman & Diu Reorganisation Act 1987.

Moreover, even the Goa Assembly was dissolved in 1989, new elections have taken place to that Assembly and admittedly the respondent is not elected as a member of that Assembly. The entire argument is in the air. Moreover, we are not concerned with the question whether the respondent continues to be the member of the Goa Assembly or not. All that we are concerned with is whether he can continue to be a member of the Pradesh Council and as a Councillor. The entire argument is, therefore, just anomalous.

Agreement based on likely acquittal of the respondent in Appeal.-- A faint attempt was made by Mr. More to contend that if the Criminal Appeal filed by the respondent was allowed, then the disqualification would vanish. He, therefore, wanted us not to hold that the respondent has already incurred the disqualification.

In support of this contention he relied upon the Judgment of the Supreme Court Manni Lal Vs. Parmai Lal and Others, . In that case, it was held that the disqualification incurred by virtue of the member''s conviction was wiped off and ceased to exist completely, for all times, the moment the conviction was finally set aside.

There can be no quarrel on this proposition. But the difficulty is that the learned Advocate has been assuming that the respondent''s conviction is set aside. Nothing is farther from truth. His conviction is very such in existence and while it is so, his disqualification from being a member of the Pradesh Council continues with equal rigour.

Illusory argument of alternative remedy.-- Then it was argued that an alternative remedy existed for the petitioner for having the dispute adjudicated and that, hence, the writ jurisdiction should not be exercised by this Court. The Judgment of the Supreme Court Gujarat University Vs. N.U. Rajguru and Others, , was specially relied upon for this purpose.

We fail to see even the remotest application of this Authority to any of the questions involved in this petition. The plea as regards the alternative remedy based upon the provisions of S.12 of the Panchayats Regulation and S. 14 of the Government of Union Territories Act 1963 has already been rejected by us. Reliance upon the Gujarat University''s case, therefore, is totally futile.

The strongest plea of the respondent was that he is likely to be acquitted in the Appeal, It was not his plea that he was not convicted of an offence, involving moral turpitude. It was not contended even that until the conviction was not set aside, the same had acquired finality so far as the present proceedings were concerned. Nor was it argued that there was any clouding or eclipse of the said conviction. It is a different matter that we have dealt with that question in the above portion of this judgment where we have expressed our view that even if it is possible, in a different context, the finality of the order under Appeal would be clouded or eclipsed by virtue of the admission of the Appeal. But the legislation relating to disqualification of members of elected bodies such as Parliament and Legislatures cannot be imputed with the intention of allowing the legislators of suspect character to be at the helm of the affairs of the State. Law givers are, like the law expounders and the law interpreters, Caesar''s wife -- must be above all suspicions.

Final Order.-- In the result, the Petition succeeds.

The Rule earlier issued is made absolute in terms of prayers (a) & (b) and Respondent No. 4 is hereby restrained from continuing or acting as the Member of the Pradesh Council under clause 3 as also as the Councillor under clause 217 of the Daman & Diu (Administration) Regulations, 1987.

Mr. More applies for stay.

In view of the peculiar circumstances of the case, the Application is rejected.

Order accordingly.