SUMAN K SHRIVASTAVA
Ranchi, May 4: The proverbial Damocles’ sword hangs over Jharkhand Chief Minister Hemant Soren, who is in the midst of an office-of-profit row regarding a mining lease that he is accused of having awarded himself last year while holding charge of the state mining and environment departments.
The Election Commission has sought a reply from Soren by May 10 on the BJP complaints in this regard referred by Governor Ramesh Bais for its opinion on whether the CM violated the office of profit norms or not by holding a mining lease.
Legal experts consulted by the Chief Minister in New Delhi a couple of days back, have said he is unlikely to face disqualification as a member of the state assembly.
The Chief Minister is relying mainly on the Supreme Court judgement delivered some 58 years back in C. V. K. Rao vs Dentu Bhaskara Rao case and Kartar Singh Bhadana vs Hari Singh Nalwa case delivered in 2001.
Retired Supreme Court Judge Ashok Kumar Ganguly has also said that it is unlikely that the CM will be disqualified under Section 9A of the Representation of the People Act in view of earlier judgments by the top court.
“A constitution bench of the Supreme Court in 1964 in the case of CVK Rao vs Dentu Bhaskara Rao has held that a mining lease does not amount to a contract of supply of goods,” he has said.
In 2001, a three-judge bench of the apex court in the case of Kartar Singh Bhadana vs Hari Singh Nalwa & others also made it clear that a mining lease does not amount to execution of a work undertaken by the government, Ganguly has said.
Under Section 9A of the People’s Representation Act, 1951, a person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate government for the supply of goods to, or for the execution of any works undertaken by, that government.
“These judgements dealt directly with the mining lease issue and categorically ruled that a mining lease does not amount to be a contract with the government and thus does not violate the office-of-profit norms,” said Advocate General Rajiv Ranjan.
“Even if the Election Commission disqualifies Soren, it will not stand to the scrutiny of the court,” said another legal expert.
But several legal experts hold a different view. The bureaucratic circle is also agog with the speculation that the Election Commission will most likely recommend Soren’s disqualification. “The fast-paced exercise undertaken by the EC is not to give a clean chit to the chief minister,” quipped a senior official.
“The court delivers a judgement based on the facts and circumstances of every case. The law is not static. It is always evolving and interpreted in the light of new facts and circumstances,” said former Advocate General Ajit Kumar.
“During the last 70 years, the Supreme Court has delivered judgements on almost every issue. If the mere citation of earlier judgments could decide the new cases, one need not knock on the door of the Supreme Court or a high court again,” he explained.
“Moreover, one has to read not only the letter of the law but also the spirit of the law. And the spirit of the law is that a minister should not undertake any business which depends on licences, permits, quotas, leases, received or to be received from the government,” he said.
Obviously, the facts in the case of Hemant Soren are different. In the judgements cited by the CM’s legal team, the elections of the MLAs were challenged under Section 9A of the Representation of the People Act, on the ground that they had been holding the mining leases before they were elected. So, the losers in those elections contended that they were not qualified to contest elections.
In Hemant Soren’s case, he was granted a fresh lease of stone mines in 2021 after he was elected and appointed the Chief Minister. Besides, he also heads the mines department. “So, it is not only a case of pecuniary gain from the government but also a case of conflict of interest. Also, he has violated the Code of Conduct laid down by the Centre for ministers and Chief Ministers. What will be its consequence is not clear,” said another expert.
According to sources, the lease for stone mining at Angara in Ranchi district he held earlier lapsed in 2018 before he was elected in 2019. The Ranchi district administration notified the mines in the gazette( no, 1/2021) and advertised it afresh seeking applications. Soren was the only applicant who was said to have applied and got it in July, 2021. So, it was neither an extension nor renewal. It was a fresh lease, which the chief minister awarded himself,” the sources added.
Also, it is not the only case against Soren which has cropped up suddenly. The Jharkhand High Court has issued a notice in this case, where the petitioner has charged him with corruption in getting the mining lease. The court, in another PIL, has also asked the Registrar of Companies to probe the shell companies where Soren and his close associates have allegedly invested money. All these cases will make that there is something wrong in Jharkhand.
Supreme Court definition in Jaya Bachchan case in 2006
“. …… An office of profit is an office which is capable of yielding a profit or pecuniary gain…. The question whether a person holds an office of profit is required to be interpreted in a realistic manner. Nature of the payment must be considered as a matter of substance rather than of form. Nomenclature is not important… For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. “