ALLAHABAD, February 25: The Allahabad High Court has observed that Uttar Pradesh Governor Romesh Bhandari may have exercised his powers for a purpose other than ``warranted by law'' in dismissing the Kalyan Singh Government without giving it an opportunity to prove its majority.The two-member Bench in its 33-page interim order on Monday, (details were available today) said a floor test was possible to ascertain whether Kalyan Singh or Jagdambika Pal commanded majority in the Assembly and it was not open to the governor to avoid such a test.``Prima facie, it appears that the decision is based on materials which, in our view, cannot form materials for the governor to form such an opinion in such a serious and touchy issue in such hot haste on the eve of the Lok Sabha election scheduled to be held on February 22, 1998, a few hours later.It cannot be ruled out that power has been exercised for purpose not warranted by law,'' said the Bench consisting of Justice Dilip Kumar Seth and Justice VirendraDixit.The court, which heard arguments on a petition challenging Kalyan Singh government's dismissal, observed that ``from the entire order it appears that he (governor) proceeded on the basis of such information as intimation, letters and telephone calls. Nowhere he has mentioned that he had verified the question himself for coming to any conclusion. The assessment was based on the intimation given to him through some of the leaders of the parties.''``The governor had sought to find out himself about the loss of confidence on the basis of information as mentioned in the said order from the leaders of some group or parties and had calculated himself to come to the conclusion that Jagdambika Pal had mustered support of the majority on loss of confidence upon Kalyan Singh.``The governor, in his order, himself mentioned that it was not for him to do the count of heads. He had to go by what letters of the political parties mentioned,'' the Bench said.Relying on the verdict of the Supreme Court in S RBommai Case, the Bench said it was of the view unless there were exceptional circumstances which make the floor test impossible, it was not open for the governor to evade floor test. There was no other reason to evade floor test except horse-trading.``(But) no case was made out that floor test was impossible for any exceptional circumstances. The very fact that the floor test by Jagdambika Pal having been fixed pre-supposes that floor test is possible and there were no exceptional circumstances rendering it impossible.''``Thus, if the floor test was possible in absence of any exceptional circumstances, it was not open to the governor to evade floor test, though demanded by Kalyan Singh, which fact has not been denied and finds mention in the (governor's) order itself,'' the judgement said.``It was incumbent on the governor to summon the House for floor test,'' it observed.The judges also refused to agree with contentions of the respondents' counsel that principles laid down in S R Bommai Casecould not applied to the present case.The counsel had contended that the issue involved in S R Bommai Case was for exercise of power under Article 356(i) of the Constitution and not Articles 163, 164 and 174 which, he said, are involved in the present case.On the grant of interim order reinstating the Kalyan Singh ministry, the Bench held that the order was ``so gravely in violation of the provisions of the constitution'' that it ``could not think it a fit case in which the court should shirk its responsibility in upholding law''.The court also observed that balance of convenience could not be invoked merely because the petition was not filed by Kalyan Singh himself, who was the chief minister, but by a member of his Council of Ministers.
