Judgment:
Oral Judgment: (B.P. Dharmadhikari, J.)
1. By this petition filed under Article 226 of the Constitution of India, the petitioner, a citizen of India, claims that Respondent No. 7 has become disqualified and, therefore, ceases to be a Member of State Legislative Assembly from Umred Constituency of Nagpur district because of his conviction on 24.04.2015 by the Chief Judicial Magistrate, First Class, Bhiwapur. The declaration is claimed under Article 191 (1) of the Constitution of India with further declaration under Article 190(3)(a) read with Section 8(3) of the Representation of the People Act, 1951, (hereinafter referred to as R.P. Act, 1951), that the said seat is vacant. A communication sent by the office of the Governor of State of Maharashtra to Respondent No. 1 Election Commission is also assailed on the ground that it is without jurisdiction and unconstitutional. Writ is sought to Respondent No. 1 to immediately initiate process for Bye-Election from Umred Constituency as mandated under Section 151 of the Representation of the People Act, read with its Section 151A.
By inviting attention to policy decisions incorporated in letters dated 07.08.2013 and 13.10.2015, a writ is also sought to Respondent Nos. 1 to 4 to set up a mechanism and evolve a procedure accordingly to facilitate immediate action against the elected representatives of People in such matters.
2. The Hon'ble Speaker of Legislative Assembly and the Hon'ble Governor for State of Maharashtra were initially joined as respondent Nos. 5 and 6 in writ petition, however, it appears that on 03.02.2016, at the request made by the petitioner, Respondent Nos. 5 and 6 have been deleted.
3. The facts are not in dispute. Respondent No. 7 has been elected as representative from Umred Constituency of Nagpur District in the State Assembly elections. He contested the general elections in 2014 and his tenure is up to 2019.
4. On the basis of Crime No. 83 of 2005 and Regular Criminal Case (RCC) No. 263 of 2008, he was prosecuted in the Court of J.M.F.C., Bhiwapur, District Nagpur. On 24.04.2015, he was convicted under Section 332 for two years and under Section 353 for one year. Respondent No. 7 then preferred Criminal Appeal No. 133 of 2015 before the Sessions Court, Nagpur. The Appellate Court on 11.05.2015 suspended the sentence but did not stay his conviction. Vide the judgment delivered on 13.10.2015, it reduced punishment of imprisonment to three months. Respondent No. 7 then approached this High Court in Criminal Revision Application No. 132 of 2015, challenging the said judgment and order dated 13.10.2015. The High Court permitted the matter to be compounded on 21.12.2015.
5. The petitioner on 11.06.2015 sent a communication to the Hon'ble Governor with its copies to the Chief Election Commissioner pointing out that in law, Respondent no. 7 becomes disqualified automatically and according to him, in Monsoon Session of Assembly which commenced from 01.07.2015 and lasted up to 31.07.2015, Respondent No. 7 should not have been permitted to participate. But he was not debarred. This action of participation in proceedings of house violated the Article 193 of the Constitution of India. Respondent No. 1 Commission ought to have taken steps to fill in vacancies within a period of six months but that was also not done. Hence, the petitioner filed Writ Petition No. 4975 of 2015 before this Court and on 22.09.2015. The Election Commission made a statement before this Court that it would send its opinion to the Hon'ble Governor in any case within next three weeks. The learned Government Pleader thereupon stated that the office of the Governor would decide the question at the earliest. Accepting these statements, that writ petition was disposed of.
6. On 13.10.2015, Respondent No. 1 forwarded a communication to Respondent Nos. 2, 3 and 4 reiterating the contents of its earlier letter dated 07.08.2013. On 26.10.2013, the petitioner sought information under Right To Information Act, 2005, about follow up action after High Court directions. He received reply thereto with copy of a letter dated 03.09.2015. As per that letter, Governor requested the Election Commission to give its opinion. A copy of letter dated 16.11.2015 was also then received by the petitioner. The said letter was forwarded by the office of the Secretary of the Governor of Maharashtra to the Secretary, Election Commission of India, mentioning that the Hon'ble Governor had not issued an order for disqualification under Article 192(2) of the Constitution and the Hon'ble Governor was waiting for the opinion of the Election Commission of India, to confirm whether there was any need to issue such an order of disqualification because of later order of the Appellate Court reducing the term of imprisonment from two years to three months. Thus, due to this state of affairs and inaction, present petition has been filed.
7. We have heard Shri R.D. Dhande, learned counsel for the petitioner, Shri Sunil V. Manohar, Senior Advocate, appointed as Amicus Curiae, Ms. N.G. Choubey, learned counsel for respondent Nos. 1 and 4, Shri Rohit Deo, Additional Advocate General with Mrs. B.H. Dangre, learned GP for respondent No. 2 and Shri S.P. Dharmadhikari, Senior Advocate with Shri A.S. Kilor, learned counsel for respondent No. 7.
8. Looking to the nature of controversy, with the consent of the parties, the matter was taken up for final hearing by issuing Rule and making it returnable forthwith.
9. Inviting attention to the facts mentioned supra, Shri Dhande, learned counsel submits that in the light of judgment of the Hon'ble Apex Court in the case of Lily Thomas vs. Union of India and Ors., reported at (2013) 7 SCC 653, the matter stands covered squarely in favour of the petitioner. He submits that due to disqualification, Respondent No. 7 did not and could not have remained on seat after 24.04.2015 at all. This disqualification operates forthwith upon conviction and by operation of law. No formal order or declaration by the Hon'ble Governor is envisaged and therefore, no opinion of Election Commission is necessary for said purpose. He submits that after receipt of opinion dated 21.09.2015 from the Election Commission, there was no question of office of the Governor seeking any further opinion or advise on 16.11.2015 from the Election Commission. The subsequent event of the Appellate Court bringing down the punishment on 13.10.2015 is totally irrelevant. Respondent Nos. 1 to 4 ought to have followed the mandate of law and hence a resulting vacancy ought to have been declared. Respondent No. 7 could not have been permitted to attend Legislative Assembly after 24.04.2015 at all. He invites attention to Article 193 of the Constitution of India to urge that Respondent No. 7 has committed an offence by acting in its breach. Respondent 7 can not get back the seat unless bye-elections are held and he is again elected. Subsequent appellate judgment bringing down the term of imprisonment is inconsequential. He states that in terms of Section 150 read with Section 151A of R.P. Act, 1951, immediate steps to fill in vacancy needed to be initiated and the process should have been completed. He has relied upon the judgment of the Hon'ble Apex Court in the case of Election Commission of India vs. Bajrang Bahadur Singh and Ors., reported at 2015 DGLS (Soft.) 289; Manoj Narula vs. Union of India, reported at 2014 (9) SCC 77 and Brundaban Nayak vs. Election Commission of India, New Delhi, reported at AIR 1965 SC 1982, to substantiate his submissions. He points out how the provisions of Section 8(4) of the R.P. Act, 1951, were found unconstitutional. He submits that the said logic needs to be kept in mind and act of the respondents in permitting Respondent No. 7 to remain in office after 24.04.2015 is, therefore, unsustainable and objectionable.
10. Shri Sunil V. Manohar, learned Amicus Curiae appointed by this Court on 25.02.2016 to assist it, has pointed out the effect of such conviction on the term of elected representatives. He has also explained machinery provided under Article 192 pointing out pending reference made by the office of the Governor and its impact or relevance of answer thereto by Respondent No. 1 in present facts. He states that all judgments of the Hon'ble Apex Court prior to judgment in case of Lily Thomas vs. Union of India and Ors., (supra) consider the position which was governed by Section 8(4) of the R.P. Act, 1951. He contends that once conviction takes place, disqualification results automatically. He has relied upon paragraphs 18 and 21 of said judgment. In present facts, according to him, this judgment ought to have been followed and as mandated by Section 151A of the R.P. Act, 1951, bye election ought to have been conducted. He further submits that if there be any reference, it needs to be answered by the Election Commission within six months keeping in mind time limit prescribed in Section 151A. He adds that in such an eventuality, when Bye-Election to fill in such vacancy has been held as per the scheme of RP Act, the subsequent acquittal of disqualified person is irrelevant. He urges that scope for his restitution in law is very limited.
11. Shri Rohit Deo, learned Additional Advocate General, relies upon Article 192 to submit that two different constitutional authorities are involved in the matter of disqualification. Their role is very important. The Governor accordingly referred the matter for its opinion to the Election Commission and as Governor has to decide as per opinion of Election Commission, Section 146 of the R.P. Act, 1951, gets attracted. As per that provision even powers of Civil Court can be invoked to hold an inquiry. He contends that in present matter, the sentence was stayed by the Appellate Court in less than one month of conviction and hence Respondent No. 7 was not sent to prison. Within less than six months, punishment of two years was removed and hence there could not have been any disqualification. The subsequent compounding, according to him, is not relevant in present matter. In view of judicial reduction of sentence to three months on 13.10.2015, there never was any conviction for a period of two years and hence, there never was any disqualification.
12. In this complex situation, when the office of the Governor found it appropriate to obtain opinion of Respondent No. 1, on 16.11.2015, a communication was sent. The communication is within one month of bringing down the punishment and the punishment was also brought down in a period of less than one month from the date of order of this Court dated 22.09.2015. The office of the Governor, therefore, acted promptly and wanted to find out impact of subsequent developments.
13. Shri Deo, learned counsel submits that the petitioner has deleted the Hon'ble Governor as also the Hon'ble Speaker from the array of parties and in this background, no finding against these constitutional authorities can be reached in present matter. He, therefore, submits that a direction to have time bound consideration of pending reference by the office of the Hon'ble Governor and steps to provide mechanism as per letter dated 13.10.2015 read with letter dated 07.08.2013 can at the most be issued. He relies heavily upon the judgment of the Hon'ble Apex Court in the case of Lily Thomas vs. Union of India and Ors., (supra) to point out that such developments which are prior to date of application of mind and recording of any finding by the Governor are always relevant as decision making process between two Constitutional authorities is bound to take some time. He further adds that when the Court grants stay, it has same effect as that of acquittal. He draws support from the judgment of the Hon'ble Apex Court in the case of Smt. Indira Nehru Gandhi vs. Raj Narain and Anr., reported at AIR 1975 SC 1590.
14. Shri S.P. Dharmadhikari, learned Senior Advocate submitted that the appellate Court granted stay of sentence on 11.05.2015. The prayer for stay of conviction was never rejected but as it was agreed to hear the appeal itself finally, the prayer for stay of conviction was kept pending and postponed to the stage of final hearing of appeal. He contends that the Appellate Court ought not to have heard the appeal finally without deciding pending application for stay of conviction. In these facts when the Governor decides, the Hon'ble Governor is not acting as representative of State on aid and advise of the ministers, but he is guided by the opinion of the Election Commission. He draws support from the judgment of the Election Commission of India vs. Dr. Subramaniam Swami, reported at (1996) 4 SCC 104 and in Brundaban Nayak vs. Election Commission of India, (supra).
15. The judgment of the Hon'ble Apex Court in the Lily Thomas vs. Union of India, (supra), particularly paragraphs 18 and 21 are relied upon by him to urge that the subsequent acquittal of respondent 7 results in wiping out the conviction as also disqualification retrospectively in the present matter. He submits that disqualification and declaration of vacancies are viewed as independent events in the said judgment. But here, acquittal has come before the seat could be declared vacant. In view of that acquittal, disqualification could not have operated and Respondent No. 7 is automatically reinstated. He points out that such disqualification continues for a period of six years from the date of release from prison. He relies upon the judgment of the Hon'ble Apex Court in the case of Baby Samuel vs. Tukaram Laxman Sable and Ors., reported at 1996 (1) Mh. L.J. SC 9, to show that restoration of petitioner in this situation is automatic.
16. The Scheme of Article 192 and Section 146 of Representation of People Act, is pressed into service by him to urge that it is for the office of Governor and Respondent No. 1 to jointly consider impact of various facts including subsequent developments which may be relevant in the said process. He submits that alleged letter or advise dated 21.09.2015 on which the petitioner has sought to place reliance and sent allegedly by Respondent No. 1 to the office of Governor, is not produced on record by the petitioner. Respondent No. 7 is not aware of any such development and, therefore, said communication is irrelevant and cannot be used against the petitioner. According to him, on 03.09.2015, the office of the Governor has sent a letter to Respondent No. 1 and also pointed out the opinion expressed by the In-charge Advocate General of Maharashtra therein. Thus, the office of the Governor has pointed out the relevant facts to Respondent No. 1 and had sought its opinion. The later development i.e. event of bringing down the punishment dated 13.10.2015 rendered this letter or communication itself bad. Respondent No. 1 is duty bound to look into all facts as available on the date on which it applies its mind and thereafter to record its opinion.
17. He also invites our attention to the judgment of the Hon'ble Apex Court in the case of Election Commission of India vs. Bajrang Bahadur Singh and Ors., (supra), particularly paragraphs 34 and 35 read with paragraph 38 to buttress his submissions.
18. Shri Dhande, learned counsel, in his reply, submits that after receipt of opinion dated 21.09.2015 from the respondent no. 1, Hon. Governor could not have raised any doubt about need to issue an order of disqualification because of subsequent judgment of appellate court. In absence of power with the office of the Hon'ble Governor to seek review, there was no justification in forwarding communication dated 16.11.2015 by that office to Respondent No. 1. He emphasizes that his submissions on absence of power to review could not be even answered by the respondents. He also attempts to urge that opinion by the Advocate General is not in consonance with the earlier opinion tendered to the office of the Hon'ble Governor. Section 146 of the R.P. Act is not attracted as here conviction is not in dispute and, therefore, there is no need of holding any inquiry. He has invited our attention to reply affidavit by Respondent No. 7 before this Court to submit that there in paragraph 4, the fact of sentencing Respondent No. 7 for a period of two years is admitted. He, therefore, submits that in present matter, respondent Nos. 1 to 4 have permitted Respondent No. 7 to continue to function despite his disqualification, did not hold any election to fill in his vacancy and did not make any provision to have any machinery in place to curb such instances. He, therefore, prays for allowing the petition.
19. The petitioner has not argued about or urged any malafides on part of the concerned authorities at any point of time. No such authority is a party respondent. The various dates noted by us supra show short intervals at which important events took place. Those developments could not have been controlled by any of the parties before us.
20. We find the judgment of the Hon'ble Apex Court in the case of Lily Thomas vs. Union of India and Ors., (supra) important in this case. In that matter, in paragraph 17, the Hon'ble Apex Court has considered the relevant legal provisions. It has found that as per Article 190(3)(a), if a Member of House of Legislature of a State becomes subject to any disqualification, his seat thereupon becomes vacant. If such a Member becomes disqualified by or any law made by the Parliament, his seat automatically falls vacant. In view of this provision and similar provision contained in Article 101(3)(a), the Hon'ble Apex Court held that the Parliament cannot make a provision like Section 8(4) of the R.P. Act, which has the effect of deferring the date on which disqualification of a sitting Member will come into effect, thereby preventing his seat from becoming vacant. These observations, therefore, show that the seat occupied by Respondent No. 7 automatically became vacant on 24.04.2015 due to his conviction for a period of two years by the Court of J.M.F.C., Bhiwapur.
21. The later observations of the Hon'ble Apex Court in the case of Lily Thomas vs. Union of India and Ors., supra, show that it has rejected contention that unless and until a decision is taken by the Governor on the subject under Article 191(1), the seat will not become vacant. The said event of decision of the Governor cannot militate with the mandate of Art. 190(3)(a). The Hon'ble Apex Court, however, thereafter clarified that bye-election to fill in such a seat may await the decision of the Governor under Article 192, and if the Governor takes a view that a Member has not become subject to any of disqualifications, it must be held that seat of such Member did not become vacant at all. While appreciating the contentions based upon possibility of filing frivolous complaints and of frivolous convictions by trial Court, the Hon'ble Apex Court didnot find any merit in that argument. It refers to a larger Bench judgment of its own in the case of Rama Narang vs. Ramesh Narang and Ors., reported at (1995) 2 SCC 513, wherein it has been held that when an appeal is preferred under Section 374 of the Code of Criminal Procedure, that appeal is against conviction as also sentence. The appellate Court, therefore, in exercise of its power under Section 389(1) can stay the order of conviction. High Court in its inherent jurisdiction under Section 482 can also stay conviction. Once the conviction is stayed, it ceases to operate from the date of its stay. An order of stay does not render conviction non-existent but only non operative. Hon. Apex Court, by placing reliance upon its other larger Bench judgment in the case of Ravikant S. Patil vs. Savbhau S. Bagali, reported at (2007) 1 SCC 673, also mentions that once conviction is stayed, disqualification arising out of that conviction ceases to operate. In paragraph 21, in case of Lily Thomas vs. Union of India and Ors., (supra), it has been held that after stay of conviction, disqualification arising out of conviction under sub-section (1), (2), (3) of Section 8 of R.P. Act, cannot operate from the date of stay of conviction. This judgment of the Hon'ble Apex Court itself shows that disqualification cannot continue after conviction is stayed by the appellate Court. In present matter, sentence of respondent No. 7 was suspended by the appellate Court on 11.05.2015. It was reduced to three months by the appellate Court on 13.10.2015. Thus, conviction with an imprisonment for not less than two years on 24.04.2015 at the most could have prevailed beyond 11.05.2015 and up to 13.10.2015. After 13.10.2015, legally even on 24.04.2015, conviction of Respondent No. 7 was/is for three months only. In other words, disqualification which arose automatically by operation of law on 24.04.2015 could have continued at the most only up to 13.10.2015 and not thereafter. Disqualification as prescribed, ceased to operate after 13.10.2015.
22. In the case of Election Commission of India vs. Bajrang Bahadur Singh and Ors., (supra), relied upon by Shri Dhande, learned counsel, the Hon'ble Apex Court in paragraph 33 states that seat of such a Member who is convicted, becomes vacant by operation of law, Article 192 only prescribes the form and stipulates the procedure to ascertain whether such legislator had incurred disqualification. The said Article does not provide for removal of Member from Legislature by an action of Governor. The observations of the Hon'ble Apex Court in paragraph 34 of this judgment show that in certain cases, disqualification may cease to operate. Seat becomes vacant by operation of law and only obligation upon the Governor is to decide whether legislator has incurred any one of the disqualifications. The legislator, who acquires disqualification ceases to be a Member of Legislature with effect from the date of acquisition to disqualification. In paragraph 38, it is observed that cessation of disqualification cannot put such a person back in Legislature without his being elected once again. It is mentioned that such a person is entitled to contest any election, the moment disqualification factor cease to exist as disqualification is co-terminus with disqualifying event. The discussion in paragraph 43 shows that there Section 9A and Section 10 of Chapter III of R.P. Act are looked into and it is held that they limit the tenure of disqualification and make it co-terminus with the currency of the event which creates a disqualification. The distinction between the incurring of disqualification by operation of law and the initiation of steps towards filling up of vacancy demonstrated by the Hon'ble Apex Court in the case of Lily Thomas vs. Union of India and Ors. (supra), was not required to be looked into by the Hon'ble Apex Court in this judgment. The facts of this judgment show that the respondent before the Hon'ble Apex Court viz. Bajrang was elected on 06.03.2012. The Governor of U.P. on 29.01.2015 made a declaration under Article 192 of the Constitution that Bajrang had incurred disqualification under Section 9A of the R.P. Act, as he had entered into four contracts with State of U.P. in the year 2013. On 17.02.2015, the Secretariat of Legislative Assembly declared his seat vacant and on 10.03.2015, Election Commission of India proceeded to fill in that vacancy. Bajrang filed Writ Petition on 13.03.2015 and assailed the decision of the Governor dated 29.01.2015. He also sought stay of Bye-Election. High Court at Allahabad granted that stay. In Special Leave Petition, the Hon'ble Apex Court stayed that order of High Court. The later developments show that on 30.03.2015, the Hon'ble Apex Court transferred writ petition filed by Bajrang to itself. The Hon'ble Apex Court, however, kept in abeyance notification dated 17.03.2015 issued by the Commission under Section 150(1) of the R.P. Act, to fill up said vacancy.
23. In paragraph 17, the Hon'ble Apex Court holds that a person aggrieved by the decision of the Governor under Article 192 must approach the High Court within a period of eight weeks and his challenge must be heard by at least two Judges and disposed of within a further period of eight weeks. This time limit was imposed to reconcile the two apparently conflicting constitutional obligations as noted by the Hon'ble Apex Court in paragraph 69 of its judgment. One is, the High Court to adjudicate such dispute and second is, the obligation of the Commission to hold Bye-Election within a period of six months. In present facts, we need not delve more into this judgment.
24. Shri Dhande, learned counsel has also relied upon the judgment in the case of Manoj Narula vs. Union of India and Ors., reported at (2014) 9 SCC 77. There, the larger Bench of the Hon'ble Apex Court has considered the case of Lily Thomas vs. Union of India and Ors., (supra) in paragraph 20, while commenting upon said judgment, the fact that seat automatically falls vacant has been taken note of. We have noted the reasons which prompted Hon. Apex Court to quash sub-section (4) of Section 8 of R.P. Act. In the light of these reasons, Section 8(4) which carved out a saving in case of sitting Members of Parliament or State Legislature and fixed a later date for their disqualification to take effect, is held to be beyond powers conferred on the Parliament by the Constitution. In paragraph 21, larger Bench (Hon'ble four Judges) held that a person convicted for particular categories of criminal activities is found by the Parliament unfit to function as Representative of People. The provision is found salutary, deterrent, necessary to prevent criminal elements from holding public office thereby preserving probity of representative government.
25. Respondent No. 7 has relied upon the judgment in the case of Baby Samuel vs. Tukaram Laxman Sable and Ors., (supra). There, the Hon'ble Apex Court has in paragraphs 7 and 8 found that because of disqualification, the appellant before it had lost the office of Councillor and also the office of the President of Municipality. As the State Government did not pass any orders on his stay petition, the Collector notified and held further election to the office of the President wherein one Shri Sable got elected. The Hon'ble Apex Court noticed that his election was consequence of removal/ disqualification of the appellant. Once the order of removal/ disqualification was set aside by the Government, the appellant is entitled to be put back in the same position from which he was removed. The Hon'ble Apex Court holds that the appellant should be restored not only to Councillorship but also to the office of the President. Shri Sable was elected as the President in the vacancy caused by removal/ disqualification of the appellant and his election falls to ground once disqualification of the appellant was removed.
26. In present matter, the disqualification was removed on 13.10.2015 and even if we accept that seat of Respondent No. 7 had become vacant on 24.04.2015, no vacancy was declared and no Bye-Election has been held. Hence, after 13.10.2015, Respondent No. 7 whose disqualification is wiped out from its inception, is restored back to his seat as legislator from Umred Constituency. Had there been a declaration of vacancy and a bye-election, may be the challenge to that bye election would have been essential. But we are not required to dwell upon this contingency in present matter. In this matter, We have not found it necessary to delve on all the precedents. But suffice it to note that the distinction between a representative suffering the complete disqualification and therefore, the disqualification ceasing to operate in his case on one hand; and the other representative who succeeds in legally getting the disqualification expunged through adjudication is not obliterated by any of the judgments of Hon. Apex Court.
27. In view of this, we are not in a position to accept the contention of Shri Sunil Manohar, learned Amicus or Shri Dhande, learned counsel that the subsequent acquittal of Respondent No. 7 is irrelevant.
28. Here, the seat was not declared vacant and no Bye-Election to fill in that vacancy has been held. Keeping in mind these facts, it follows that after the disqualification is expunged by operation of law, Respondent No. 7 is reinstated and restored back to his seat again on 13.10.2015.
29. Section 8(3) of the Representation of the People Act, 1951, reads as under:
8(3). A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
30. Thus, the person like Respondent No. 7 stands disqualified because of mandate of said provision from the date of his conviction and very same disqualification could have continued for a further period of six years after his release. Thus, disqualification is not only for the current tenure but also for a period of six years after his release from prison. It is, therefore, a single or composite disqualification which with its two wings covers existing tenure and also period of six years after release. In view of reduction in sentence of Respondent No. 7 on 13.10.2015, it is apparent that later field of disqualification i.e. its continuation for a period of six years after his release from prison does not spring into life. He was never put in prison because of suspension of his sentence by the appellate Court on 11.05.2015. Hence, he cannot be subjected at all to later part of disqualification i.e. to continuation of disqualification. As the disqualification is composite i.e. single, it can not be subdivided and only one of its wings can not operate. Since respondent no. 7 is not expected to suffer its later part, it is more than obvious that he also cannot be subjected to its earlier part. Disqualification has to operate either entirely or then, not at all. The conclusion is, therefore, after 13.10.2015, it is not possible legally to view Respondent No. 7 as a legislator who was disqualified at any time in past.
31. The order of the Division Bench of this Court in Writ Petition No. 4975 of 2015 before this Court noted supra is dated 22.09.2015. Communication sent by respondent no. 1 to the office of Hon. Governor alleged to be its opinion and hence, binding on the Hon. Governor by the petitioner is dated 21.09.2015. This communication is not disclosed to this Court on 22.09.2015 as opinion already forwarded to the Hon'ble Governor. On the contrary, election commission on that day undertook to tender its opinion within three weeks. The State in this backdrop made a statement that the office of the Governor would decide the question at the earliest, after its receipt. Accepting these mutually complimentary statements, that writ petition was disposed of on 22.09.2015. Within stipulated period of said three weeks, no such opinion is tendered by the respondent no. 1, but in the Criminal Appeal No. 133 of 2015, the Sessions Court, Nagpur brought down the imprisonment of respondent No. 7. Since that date i.e. 13.09.2015, his case went out of the scope of disqualification provision. No bye-elections were announced till then and it is in this position that office of the Governor sought opinion of respondent No. 1. The chronology shows the importance of the later developments. A constitutional authority in the light of these events, was persuaded to solicit the opinion of other constitutional authority to comprehend the exact implications of fats prevailing as on the date on which it was supposed to reach its finding for the first time. The petitioner himself accepts that till then the Governor had not taken any decision. Hence, in this matter, the issues about status of communication dated 21.09.2015 or effect of its nondisclosure or non-production all pale into insignificance as the Hon'ble Governor had not applied mind to the controversy before 22.09.2015. The petitioner himself obtained an order in writ petition which at the most expected his office to reach the decision in time bound manner. He could not have applied mind without having on record an opinion from respondent No. 1 touching all the facets of the controversy. Only an informed decision of respondent No. 1 may have to be treated as binding on the office of the Hon'ble Governor. Hence, efforts made by that office to procure an informed and complete opinion from respondent No. 1 Election Commission is nothing but a step towards reaching a conscious and just decision. Such a step or exchange of thoughts between the two authorities which is aimed at facilitating the arrival of right solution to the problem cannot and does not amount to review at all. Though the respondents have not specifically dealt with it, for these reasons, the argument of Shri Dhande, learned counsel that the office of Governor has embarked upon an exercise of review vide its communication dated 16.11.2015 is unsustainable.
32. However, between 24.04.2015 and 13.10.2015, in the light of law as explained by the Hon'ble Apex Court, Respondent No. 7 had automatically stood disqualified. He could not have functioned as a Member of Legislative Assembly between these two dates. Had the machinery expected by the communications/ letters dated 07.08.2013 and 13.10.2015 been in place, the situation could have been otherwise. Hence, it is absolutely necessary in public interest to direct respondent Nos. 1 to 4 to provide the necessary machinery so that the purity of democracy and administration is never polluted. The letter dated 13.10.2015 produced at Annexure-I with the petition, sent by the Election Commission of India to the Chief Secretary of State of Maharashtra and to respondent Nos. 1 to 4, speaks for itself. We, therefore, direct Respondent Nos. 2 and 3 to provide necessary mechanism and procedure as stipulated therein within 12 weeks from today, if it is not so already provided.
33. Thus, challenge in present writ petition to continuation of Respondent No. 7 as Legislator from Umred Constituency is hereby dismissed. However, Respondent Nos. 1 to 4 are directed to see that necessary mechanism and machinery is in force as per communication dated 13.10.2015 at Annexure-1 with the petition within a period of 12 weeks from today.
34. Writ Petition is thus partly allowed by making rule absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.