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Request to Election Commission to recommend to the Hon’ble President of India to disqualify 21 AAP MLAs of Delhi Assembly

BEFORE THE ELECTION COMMISSION OF INDIA
NIRAVACHAN SADAN, ASHOKA ROAD,
NEW DELHI
 

REFERENCE CASE NO. 5 of 2015

 

 

IN THE MATTER OF:

 

Prashant Patel, Advocate ​ ​ … Applicant

 

                          Versus

 

Praveen Kumar, MLA and 20 other MLAs ​ … Respondent

 

APPLICATION FOR INTERVENTION AND IMPLEADMENT IN THE AFORESAID MATTER ON BEHALF OF DELHI PRADESH CONGRESS COMMITTEE, NEW DELHI

 

MOST RESPECTFULLY SHOWETH :
 
1.​That the afore-mentioned case for the opinion of the Hon’ble Commission regarding disqualification of 21 MLAs of Delhi Assembly to be submitted to the Hon’ble President of India is pending enquiry before the Hon’ble Commission.
 
2.​That the issue of disqualification of 21 MLAs of Delhi Assembly, appointed as “Parliamentary Secretary to Ministers”, by Govt. of NCT of Delhi is an important matter to be enquired into by the Hon’ble Commission, on reference by the Hon’ble President of India. The issue pertains to the Constitution of India, Govt of NCT of Delhi Act,1991 and the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 {Act of 1997}; as amended in 2006. Applicant being conversant with the facts of the case and to ensure due governance of Delhi by the present Government of NCT of Delhi wants to intervene in the matter, to submit additional facts and circumstances and make submissions for fair and appropriate conclusion of the enquiry and opinion by the Hon’ble Commission. It is a matter of great public interest as by appointing 21 MLAs as ‘Parliamentary Secretary to Ministers’, the Govt. of NCT of Delhi has placed the MLAs at an advantageous position and has allowed them to exercise unconstitutional power and authority.
 
3.​That according to the Govt of NCT of Delhi Act, 1991(Act of 1991), a Member of Legislative Assembly shall be disqualified, if holds any office of profits under the Govt. of NCT of Delhi except the holding of the office by a Minister.
 
4.​That according to Section 15(1)(a) of the Act of 1991, provides that “a person shall be disqualified for being chosen as, and for being, a member of the legislative assembly if he holds any office of profit under the government of India or the government of any state or the government of any union territory other than an office declared by law made by Parliament or by the legislature of any state or by the legislative assembly of Delhi or any other union territory, not to disqualify its holder.” Further, the office of ‘Parliamentary Secretary to Ministers’ is an office not included in the list of offices removed from disqualification, under the ‘Act of 1997’.
​It may be noted that as per the Original Legislative Assembly of National Capital Territory of Delhi, enacted Act of 1997; and as per schedule to Section 3, only two offices i.e. (1) Office of the Chairman of Khadi and Village Industries Board; (2) Chairman, Delhi Commission for Woman, were removed from disqualification (copy of the legislation attached as Annexure A).
 
5.​That this Act, 1997 was amended in the year 2006. Accordingly, the post of ‘Parliamentary Secretary to the Chief Minister’ was removed from disqualification. The amendment is at Sl. No. 7, of the Schedule which specifically mentions “Office of the Parliamentary Secretary to Chief Minister” only. (A copy of the said amendment is attached herewith as Annexure B).
 
6.​That a perusal of aforesaid amendment would clearly establish that the office of the ‘Parliamentary Secretary to the Ministers’ would be an office incurring disqualification U/s 15(1) of the Act of 1991 and such disqualification has not been removed by the Act of 1997 or subsequent amendment. The amendment in 2006 pertains only to the office of ‘Parliamentary Secretary to the Chief Minister’ and no other.
 
7.​That the Govt of NCT of Delhi was aware of this position and its consequences on appointing 21 MLAs to the ‘office of Parliamentary Secretary to Ministers’, as the same was not protected, as such, introduced an Amendment Bill in the year 2015 to amend the schedule U/s 3 of Act of 1997. Thus, amendment to allow Parliamentary Secretaries to the Minister with retrospective effect was introduced in the Legislative Assembly of National Capital of Delhi on 23.06.2015, as Bill No. 06 of 2015. But the amendment did not become a law, since proper laid down procedures were not followed. As such the President of India did not grant assent to said amendment and consequently 21 MLAs who are holding the office of ‘Parliamentary Secretary to Ministers’, under the Govt. of NCT of Delhi are liable to be disqualified from being the Member of the Legislative Assembly.
 
8.​That the Govt of NCT of Delhi admitted the legal position that appointment to the office of ‘Parliamentary Secretary to Ministers’ by itself would entail disqualification of 21 MLAs, unless he/she has been protected by the Act of 1997 or subsequent amendment, if any. However since there is no such amendment carried out, all 21 MLAs illegally holding the office of ‘Parliamentary Secretary of Ministers’, are liable to be disqualified as MLAs.
 
9.​That vide office order F.No.17 /57/2012/ GAD/Par. Secy./356 dated 13.03.2015 (copy enclosed as Annexure C), the GNCTD appointed the 21 MLA as Parliamentary Secretaries to various Ministers, with immediate effect and allowed them to use- ‘government transport for official visit and ‘office space in the Minister’s room’. Such Order of the GNCTD also carried the approval of the Speaker of the Delhi Assembly.
However, subsequently, separate rooms were allotted to the 21 Parliamentary Secretaries. (A list containing the details of such allotment of rooms to the Parliamentary Secretaries is attached herewith as Annexure- D).
 
10.​That 21 MLAs are totally involved in the administrative and other functioning of the ministers offices and work in discharge of their duties, under the Constitution of India and the NCTD Act, which is an integral part of Minister’s office and enjoy all benefits, authority, facilities and privileges.
 
11.​That the said MLAs occupying office of profit not only enjoys the benefits available to a minister, but also influence the decision of the Ministers and the Government and the facilities, perks, benefits and privileges extended to them would not be covered even under the definition of compensatory allowance.
​That Act of 1997 defines compensatory allowance as under:-
“Compensatory allowance” means any sum of money payable to the holder of an office by way of daily allowance, such allowance not exceeding the amount of daily allowance to which a member of the Legislative Assembly is entitled under the Members of Legislative Assembly of the National Capital Territory of Delhi (Salaries, Allowances, Pension etc.) Act, 1994 (Delhi Act No.6 of 1995), any conveyance allowance, house rent allowance or travelling allowance for the purpose of enabling him to recoup any expenditure incurred by him in performing the functions of that office”      
 
​It is once again clarified that, at this stage, the Amendment Bill of 2015, itself has not received the assent of the President, therefore even the provision/ benefits of ‘Compensatory Allowance’ cannot be availed by the MLAs. However, in complete abuse of the constitutional provisions and doctrine of office of profit, the Delhi Govt continues to reward the MLAs with the position of Parliamentary Secretaries and therefore the same makes a fit case of disqualification under the provisions of the Act of 1991.
 
12.​That they have been provided full fledge office with full functional staff and official paraphernalia including all office facilities with computers, telephones, AC, internet etc. They entertain the guests at the cost of public exchequer. They have been provided the facility to use Govt. vehicle. The order of appointment itself provides that they can use Govt. transport for official use and office space. This by itself would show that they are integral part of the office of the Ministers and are working for all purposes in the office of the Ministers to facilitate their working, as such by holding of office of ‘Parliamentary Secretary to Ministers’, all 21 MLAs have incurred disqualification.
 
13. That it is an indirect device to induct them as Minister for all purposes, without designating as Minister. This mythology is just to by-pass the intent and purpose of the law, as such they are liable to be disqualified.
14.​On the question of – Holder of Office chooses not to avail/ draw benefits, emoluments and other facilities available to him/ her:
​In this regard the applicant humbly submits that as per the law laid down by the Hon’ble Supreme Court in the matter of Jaya Bachchan Vs. UOI & Ors. [W.P.(C) 199 of 2006], wherein while dismissing the Petition of Smt. Jaya Bachcha on account of her holding an ‘office of profit’, the apex Court has clearly stated that:
“11. … It is well settled that where the office carries with it certain emoluments or the order of appointment states what the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive/draw such emoluments. What is relevant is whether pecuniary gain is “receivable” in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly.
12. In this case, as noticed above, the office carried with it a monthly honorarium of Rs. 5000/-, entertainment expenditure of Rs. 10,000/-, staff car with driver, telephones at office and residence, free accommodation and medical treatment facilities to self and family members, apart from other allowances etc. that these are pecuniary gain, cannot be denied. The fact that the petitioners is affluent or was not interested in the benefits/facilities given by the State government or did not, in fact, receive such benefits till date, are not relevant to the issue.
13. In this view, the question whether petitioner actually received any pecuniary gains or not is of no consequence. We find no merit in the writ petition and the same is, accordingly, dismissed.”
Therefore, applying the ratio of the afore-stated judgement of the Hon’ble Supreme court in the present case, it is irrelevant, whether or not, the 21 MLAs have pleaded that they have chosen not to avail/ draw the benefits & facilities made available to them. The fact that vide office order dated 13.03.2015 (Annexure C) the facility of staff cars & office space has been extended to them; and subsequently vide another order (Annexure D) the MLAs have been allotted exclusive rooms and access to other government facilities, amounts to disqualification of the 21 MLAs. (A copy of the Supreme Court Judgment dated 08.05.2006, in the matter of Jaya Bachchan Vs. UOI & Ors. [W.P.(C) 199 of 2006] is attached herewith as Annexure E).
The Hon’ble Commission may allow applicant to become a party and make submissions. Further, Hon’ble Commission may be pleased to recommend to the Hon’ble President of India to disqualify all 21 MLAs of Delhi Assembly whose list is already on record.  
Prayed accordingly. ​
Applicant
Date: 09.06.2016

Place: New Delhi

 

 

(Ajay Maken)

President,

Delhi Pradesh Congress Committee

 

 

 

 Through :

 

 

​​ ​Shri K.C. Mittal,

​​ ​Advocate

 

 

 

​​ ​Shri Aman Panwar

​​ ​Advocate

 

                                                              ​Add: Chamber No.172,

 ​Delhi High Court,

​​ ​NewDelhi-110003

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