Sanjay Harkauli ORDER
1. This writ petition has been filed questioning the constitutional validity of the Uttar Pradesh State Legislative (Prevention of Disqualification) (Amendment) Act, 2006 and to quash the opinion rendered by the Election Commission of India dated 3.4.2006 and the order of the Governor dated 21.4.2006 in respect of disqualification of the respondent No. 4, a member of the then U.P. Legislative Assembly as being violative of the fundamental rights and constitutional guarantees under the Constitution of India.
2. For this reliance has been placed on Article 191(1)(a) read with Article 192 of the Constitution of India. It is alleged that the respondent No. 4 was disqualified as a member of the Legislative Assembly of the Legislative Council of the State as he was holding an office of profit. He submits that the respondent No. 4 after having been elected as Member of the Legislative Assembly held in the year 2002 and being a Cabinet Minister holding charge of Urban Development, came to be appointed as Chairman of the U.P. Jal Nigam in terms of the U.P. Water Supply and Sewerage Act, 1975. The holding of such an office amounts to holding an office of profit, as U.P. Jal Nigam is a Corporation fully controlled by the State Government, and its Chairman is performing the functions of recruitment and appointing staff of all categories and also receiving such remunerations as may be fixed by the Government. This clearly amounts to holding of office of profit within the meaning of aforesaid constitutional provisions, hence he is disqualified as a Member of Legislative Assembly.
3. Learned counsel for the petitioner submits that it is for this reason that Amending Act U.P. Act No. 10 of 2006 is ultra vires the Constitution and deserves to be struck down to the extent as prayed for.
4. Sri Satya Narain Shukla has urged that this amounts to circumventing the provisions of Article 164(1)A of the Constitution of India as well as Article 14 thereof and a legislation can be struck down on that ground as held by the Apex Court in the case of Dr. Subramaniam Swamy v. Director, Central Bureau of Investigation and Another reported in MANU/SC/0417/2014 : 2014 Vol. 8 SCC page 682.
5. He submits that the amended clause (x) of section 3 of the 2006 Amending Act is in conflict with clause (n) of the said section inasmuch as remunerations other than a compensatory allowance if received would result in a differential treatment to the members of the Legislative Assembly/Council covered by clause (n) and those covered by clause (x). He submits that while the former are exempt from disqualification if they are not entitled to remuneration other than compensatory allowance, the others who fall under the latter clause are not subject to any such restriction. This differential treatment is hit by Article 14 of the Constitution of India. He has urged that this en........