Bombay HC seeks response of three State Ministers in pleas challenging their appointments

Bombay HC seeks response of three State Ministers in pleas challenging their appointments

Bar & Bench

The Bombay High Court on Monday issued notice in petitions challenging the appointments of Radhakrishna Vikhe-Patil, Jaydutt Kshirsagar and Avinash Mahatekar as ministers in the Maharashtra government.

The Division Bench of Justices SC Dharmadhikari and GS Patel deferred the hearing of the petitions for four weeks.

The Court was hearing petitions filed by advocate Satish Talekar and other activists challenging the appointments of the three ministers, since they were not members of either House of the State Legislature.

Newly appointed Leader of Opposition in the state assembly Vijay Wadettiwar also filed a petition against Vikhe-Patil and Kshirsagar last Thursday.

Vikhe-Patil, who was Leader of Opposition in the state assembly, had resigned from the Congress and as a Member of the Legislative Assembly. He was allotted the Housing portfolio in the recent cabinet reshuffle that took place on June 16. 

Kshirsagar, who quit the Nationalist Congress Party (NCP) and joined the Shiv Sena, was given charge of the Employment Guarantee and Horticulture Ministry. Republican Party of India (A) leader Mahatekar also took an oath as a minister.

It is Vadettiwar’s case that Vikhe-Patil and Kshirsagar, who were members of the House, cannot become ministers without getting elected. Moreover, he claimed that since assembly polls are due in the next few months, by-elections can’t be held now. His petition claims that the rule does not apply to Mahatekar, as he was not a member of either House of the State Legislature.

Assembly polls in Maharashtra are due within three months from now, in October. The petitioners argued that by-elections cannot be held, as the assembly will be dissolved in less than one year. Thus, the ministers ought to be disqualified.

The petitioners cited Section 151 A of the Representation of the People Act, along with Article 164(4) of the Constitution of India to support their claims.

Section 151 A of Representation of the People Act requires the Election Commission to fill the casual vacancies in a House of Parliament and state legislatures through by-elections within six months of the date of occurrence of the vacancy, provided that the remainder of the term of a member in relation to a vacancy is one year or more.

Article 164(4) of the Constitution places a restriction on the continuation of such persons as ministers by laying down: 

“a minister, for any period of six consecutive months is not a member of legislature of state, shall be, at the expiration of that period cease to be a minister”.

Advocate Vijay Thorat, representing the state government, opposed the claims made by petitioners. He argued,

“There is no such provision for  disqualification in Article 164(4) before completing six consecutive months in the office. Constitutional provisions cannot be interpreted by way of inference. The respondent ministers can have genuine reason to go for by-elections.”

The Court will hear the matter after four weeks.

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