SPEAKER HARYANA VIDHAN SABHA Vs KULDEEP BISHNOI .
Bench: ALTAMAS KABIR,J. CHELAMESWAR
Case number: C.A. No.-007125-007125 / 2012
Diary number: 166 / 2012
Advocates: SHIEL SETHI Vs
TARUN GUPTA
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7125 OF 2012 (Arising out of SLP(C)No.54 of 2012)
Speaker Haryana Vidhan Sabha … Appellant
Vs. Kuldeep Bishnoi & Ors. … Respondents
WITH CIVIL APPEAL NO.7126 OF 2012
(Arising out of SLP(C)No.55 of 2012)
Narendra Singh & Anr. … Appellants
Vs. Kuldeep Bishnoi & Ors. … Respondents
AND CIVIL APPEAL NO.7127 OF 2012
(Arising out of SLP(C)No.59 of 2012)
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Dharam Singh & Anr. … Appellants
Vs. Kuldeep Bishnoi & Ors. … Respondents
AND CIVIL APPEAL NO.7128 OF 2012
(Arising out of SLP(C)No.72 of 2012)
Zile Ram Sharma … Appellant
Vs. Kuldeep Bishnoi & Ors. … Respondents
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. The subject matter of challenge in these appeals
is the final judgment and order dated 20th December,
2011, passed by the Punjab & Haryana High Court in the
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different Letters Patent Appeals filed by the Appellants
herein.
3. The first Civil Appeal, arising out of SLP(C)No.54
of 2012, has been filed by the Speaker of the Haryana
Vidhan Sabha against the judgment and order passed by the
Punjab and Haryana High Court in his Letters Patent
Appeal No.366 of 2011. By the said judgment, the
Division Bench not only dismissed the appeal and did not
choose to interfere with the directions given by the
learned Single Judge to the Speaker to decide the
petitions for disqualification of five MLAs within a
period of four months, but in addition, directed that
pending such decision, the five MLAs in question would
stand disqualified from effectively functioning as
members of the Haryana Vidhan Sabha. Aggrieved by the
interim directions purportedly given under Order 41 Rule
33 of the Code of Civil Procedure (C.P.C.), the Speaker
filed SLP(C)No.54 of 2012, challenging the same.
4. The other three Special Leave Petitions (now
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appeals) were filed by the five MLAs, who were prevented
from performing their functions as Members of the
Assembly by the directions contained in the impugned
judgment and order dated 20th December, 2011. While
SLP(C)No.55 of 2012 was filed by Narendra Singh and
another, SLP(C)Nos.59 of 2012 and 72 of 2012 were filed
by Dharam Singh and another and Zile Ram Sharma, being
aggrieved by the impugned judgment and order for the same
reasons as contained in the Special Leave Petition filed
by Narendra Singh and another. The focal point of
challenge in all these appeals, therefore, is the orders
passed by the Division Bench of the Punjab and Haryana
High Court on 20th December, 2011, while disposing of the
Letters Patent Appeals preventing the five named MLAs,
who are also Appellants before us, from effectively
discharging their functions as Members of the Vidhan
Sabha.
5. The facts narrated above give rise to the
following substantial questions of law of public
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importance, namely :-
(a) Whether the High Court in exercise of its powers
under Articles 226 and 227 of the Constitution, has
the jurisdiction to issue directions of an interim
nature to a Member of the House while a
disqualification petition of such Member is pending
before the Speaker of a State Legislative Assembly
under Article 191 read with the Tenth Schedule to
the Constitution of India?
(b) Whether even in exercise of its powers of judicial
review, the High Court, as a constitutional
authority, can issue mandatory directions to the
Speaker of a State Assembly, who is himself a
constitutional authority, to dispose of a
disqualification petition within a specified time?
(c) Can the High Court, in its writ jurisdiction,
interfere with the disqualification proceedings
pending before the Speaker and pass an order
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temporarily disqualifying a Member of the State
Legislative Assembly, despite the law laid down by
this Court in Raja Soap Factory vs. V. Shantharaj &
Ors. [(1965(2) SCR 800] and in L. Chandra Kumar vs.
Union of India [(1997) 3 SCC 261], to the contrary?
(d) When a disqualification petition filed under Article
191 read with the Tenth Schedule to the Constitution
of India is pending consideration before the
Speaker, can a parallel Writ Petition, seeking the
same relief, be proceeded with simultaneously? And
(e) Did the High Court have jurisdiction to give
directions under Order 41 Rule 33 of the Code of
Civil Procedure, despite the express bar contained
in the Explanation to Section 141 of the Code of
Civil Procedure, in proceedings under Article 226 of
the Constitution?
6. In order to provide the peg on which the above
questions are to be hung, it is necessary to understand
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the background in which such substantial questions of law
have arisen.
7. The 12th Legislative Assembly Elections in Haryana
were held on 13th October, 2009. After the results of the
elections were declared on 22nd October, 2009, the Indian
National Congress Party, hereinafter referred to as ‘the
INC’, emerged as the single largest party having won in
40 out of the 90 seats in the Assembly. Since it was
short of an absolute majority, the INC formed the
Government in collaboration with seven independents and
one MLA from the Bahujan Samaj Party. Subsequently, on
9th November, 2009, four Legislative Members of the
Haryana Janhit Congress (BL) Party, hereinafter referred
to as ‘the HJC (BL)’, wrote to the Speaker of their
intention to merge the HJC (BL) with the INC in terms of
the provisions of paragraph 4 of the Tenth Schedule to
the Constitution of India. The Speaker was requested to
accept the merger and to recognize the applicant
legislators as Members of the INC in the Haryana Vidhan
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Sabha.
8. On hearing the four legislators, namely, Shri
Satpal Sangwan, Shri Vinod Bhayana, Shri Narendra Singh
and Shri Zile Ram Sharma, who appeared before him, the
Speaker by his order dated 9th November, 2009, accepted
the merger with immediate effect, purportedly in terms of
paragraph 4 of the Tenth Schedule to the Constitution and
directed that from the date of his order the said four
legislators would be recognized as legislators of the INC
in the Haryana Vidhan Sabha. Thereafter, a similar
request was made to the Speaker by Shri Dharam Singh,
another Member of the Vidhan Sabha elected as a candidate
of the HJC (BL) to recognize the merger of the HJC (BL)
with the INC and to also recognize him, along with the
other four legislators, as Members of the INC in the
Haryana Vidhan Sabha. Subsequently, another application
was filed by Shri Dharam Singh before the Speaker on 10th
November, 2009, requesting him to be recognized as a part
of the INC in the Haryana Vidhan Sabha. The Speaker by a
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separate order dated 10th November, 2009, allowed the
said application upon holding that the same was in
consonance with paragraph 4(1) of the Tenth Schedule to
the Constitution.
9. Challenging the aforesaid orders, the Respondent
No.1, Shri Kuldeep Bishnoi, filed five separate petitions
before the Speaker under Article 191 read with the Tenth
Schedule to the Constitution of India and the Haryana
Legislative Assembly (Disqualification of Members on
Ground of Defection) Rules, 1986, on the ground that they
had voluntarily given up the membership of their original
political party and had joined the INC in violation of
the provisions of paragraph 4(1) of the Tenth Schedule.
10. On receipt of the said petitions, the Speaker on
22nd December, 2009, forwarded copies thereof to the
concerned MLAs, asking them to submit their comments
within a period of three weeks. On 7th April, 2010,
applications were received by the Speaker from the
concerned MLAs praying for time to file their written
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statement. The matter was accordingly adjourned and
further time was granted to the concerned MLAs to file
their explanation. The Respondent No.1, Shri Kuldeep
Bishnoi, however, filed a Writ Petition, being C.W.P.
No.14194 of 2010, in the Punjab & Haryana High Court,
seeking quashing of the orders passed by the Speaker on
9th and 10th November, 2009, and also for a declaration
that the five MLAs in question were disqualified from the
membership of the Haryana Vidhan Sabha, and, in the
alternative, for a direction on the Speaker to dispose of
the disqualification petitions within a period of three
months. Notice of motion was issued to the Respondents
on 16th August, 2010, directing them to enter appearance
and to file their written statements, within three days
before the next date of hearing fixed on 1st September,
2010, either in person or through a duly-instructed
Advocate.
11. On receipt of notice from the High Court, the
Speaker by his order dated 30th August, 2010, adjourned
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the hearing of the disqualification petitions sine die.
On 20th December, 2010, the learned Single Judge of the
High Court allowed the Writ Petition and directed the
Speaker to finally decide the disqualification petitions
pending before him within a period of four months from
the date of receipt of the certified copy of the order,
which direction has given rise to the question as to
whether the High Court in its jurisdiction under Articles
226 and 227 of the Constitution was competent to issue
such a direction to the Speaker who was himself a
constitutional authority.
12. In terms of the order passed by the learned
Single Judge, the date of hearing of the five
disqualification petitions was fixed for 20th January,
2011, by the Speaker. On the said date, Dharam Singh,
one of the Appellants before us, filed his reply before
the Speaker along with an application for striking out
“the scandalous, frivolous and vexatious” averments made
in the disqualification petition. The matters had to be
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adjourned on the said date till 4th February, 2011, to
enable the Writ Petitioner to file his reply to the said
application and for further consideration.
13. On the very next day, Letters Patent Appeal No.366
of 2011 was filed by the Speaker, challenging the order
passed by the learned Single Judge of the High Court on
20th December, 2010. On 1st March, 2011, the said LPA was
listed before the Division Bench which stayed the
operation of the judgment of the learned Single Judge. A
submission was also made by the learned Solicitor General
of India, appearing on behalf of the Speaker, that every
attempt would be made to dispose of the disqualification
petitions as expeditiously as possible.
14. Thereafter, the disqualification petitions were
taken up for hearing by the Speaker on 1st April, 2011,
and the case was adjourned till 20th April, 2011, for
further arguments. On 20th April, 2011, counsel for the
parties were heard and order was reserved on the
application under Order 6 Rules 2 and 16 of the Code of
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Civil Procedure, which had been filed by Shri Dharam
Singh. By his order dated 27th April, 2011, the Speaker
dismissed the said application filed by Dharam Singh and
Shri Kuldeep Bishnoi was directed to file his list of
witnesses along with their affidavits within 15 days from
the date of the order. It was also mentioned in the
order that counsel for the Respondents would be given an
opportunity to cross-examine the Writ Petitioner’s
witnesses. Thereafter, the Speaker fixed 25th May, 2011,
for examination/cross-examination of Shri Kuldeep
Bishnoi, MLA, and his witnesses, and on the said date
Shri Bishnoi’s evidence was tendered and recorded.
However, his cross-examination could not be completed and
the next date for further cross-examination of Shri
Kuldeep Bishnoi was fixed for 6th June, 2011. In
between, on 2nd June, 2011, the matter came up before the
Division Bench of the High Court when directions were
given for hearing of the petitions at least every week
i.e. at least four times in a month. However, on account
of the sudden demise of Chaudhary Bhajan Lal, M.P. and
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former Chief Minister of Haryana, and also the father of
Shri Kuldeep Bishnoi, the disqualification petitions were
adjourned by the Speaker till 20th June, 2011. On 21st
June, 2011, the Speaker fixed all disqualification
petitions for hearing on 24th June, 2011 and for further
cross-examination of Shri Kuldeep Bishnoi. The cross-
examination of Shri Kuldeep Bishnoi was concluded before
the Speaker on 7th July, 2011, and 5th August, 2011, was
fixed for recording the evidence of the MLAs. On 18th
July, 2011, Letters Patent Appeal No.366 of 2011 and
other connected matters were listed before the Division
Bench of the High Court. The said Appeal was heard on
three consecutive days when judgment was reserved.
15. In the meantime, proceedings before the Speaker
continued and since the same were not being concluded in
terms of the assurances given, the Division Bench of the
High Court directed the Speaker to file an affidavit on
or before 11th November, 2011. Finally, being
dissatisfied with the progress of the pending
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disqualification petitions before the Speaker, the
Division Bench took up the Letters Patent Appeals on 2nd
December, 2011, when directions were given for production
of the entire records of the matter pending before the
Speaker. On 7th December, 2011, the relevant records of
the proceedings before the Speaker were submitted to the
High Court which adjourned the matter till 19th December,
2011, for further consideration. However, as alleged on
behalf of the Appellants, the Bench was not constituted
on 19th December, 2011, and without any further hearing
or giving an opportunity to the Speaker’s counsel to make
submissions on the status report, the High Court
proceeded to pronounce its judgment on the Letters Patent
Appeals. By its judgment which has been impugned in
these proceedings, the Division Bench upheld the
directions of the learned Single Judge directing the
Speaker to decide the disqualification petitions within a
period of four months. However, while disposing of the
matter, the Division Bench stayed the operation of the
orders passed by the Speaker on the merger of the HJC
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(BL) with the INC dated 9th November, 2009 and 10th
November, 2009. It also declared the five MLAs, who have
filed separate appeals before this Court, as being
unattached members of the Assembly with the right to
attend the Sessions only. It was directed that they
would not be treated either as a part of the INC or the
HJC(BL) Party, with a further direction that they would
not hold any office either. It is the aforesaid
directions and orders which have resulted in the filing
of the several Special Leave Petitions (now Civil
Appeals) before this Court by the Speaker and the five
concerned MLAs. As a consequence of the order passed by
the Division Bench of the High Court, the five
independent Appellants before us have been prevented from
discharging their functions as Members of the Haryana
Vidhan Sabha, even before the disqualification petitions
filed against them by Shri Kuldeep Bishnoi could be heard
and decided.
16. Appearing for the Speaker of the Vidhan Sabha, who
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is the Appellant in the appeal arising out of SLP(C)No.54
of 2012, Mr. Rohington F. Nariman, Solicitor General of
India, contended that this was not a case where the
survival of the Government depended upon allegiance of
the five MLAs under consideration, since the Government
was formed with the support of seven Independents and one
MLA from the Bahujan Samaj Party. In fact, the five MLAs,
against whom disqualification petitions are pending
consideration before the Speaker, were not part of the
Government when it was initially formed.
17. Mr. Nariman contended that the learned Single
Judge decided the issue of merger in terms of paragraph 4
of the Tenth Schedule to the Constitution by holding that
the two orders dated 9th and 10th November, 2009, were not
final or conclusive and that, in any event, when the
disqualification petitions came to be decided, it would
be open for the Speaker to reconsider the issue of
merger. The learned Solicitor General emphasized the
fact that there was neither any appeal nor any cross-
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objection in respect of the aforesaid decision of the
learned Single Judge and even if the same fell within one
of the exceptions indicated in Banarsi Vs. Ram Phal
[(2003) 9 SCC 606], the judgment must still be held to
have become final between the parties. The learned
Solicitor General urged that all the decisions which had
been cited on behalf of the Respondent No.1, were
decisions rendered prior to the judgment in Banarsi’s
case (supra). It was, therefore, submitted that the
decision in Banarsi’s case (supra) is the final view in
regard to the provisions of Order 41 Rule 33 of the Code
of Civil Procedure.
18. The learned Solicitor General then challenged the
orders of the Division Bench of the High Court on the
ground of violation of the principles of natural justice.
It was contended that while the High Court had concluded
the hearing and reserved judgment on 20th July, 2011, by
order dated 12th October, 2011, it directed the Speaker
to place on record the status of the proceedings relating
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to the disqualification petitions. Although, the same
were duly filed, without giving the parties further
opportunity of hearing with regard to the said records,
the Division Bench directed the matter to be listed for
further consideration on 19th December, 2011. It was
submitted that though the Bench did not assemble on 19th
December, 2011, the Division Bench delivered the impugned
judgment on 20th December, 2011, without any further
opportunity of hearing to the parties.
19. The learned Solicitor General submitted that the
procedure adopted was contrary to the law laid down in
Kihoto Hollohan vs. Zachillhu [(1992) Supp. (2) SCC 651],
wherein it was stated as under:-
“110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an
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interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.”
20. The learned Solicitor General sought to reemphasize
the fact that the present case is not a case involving
disqualification or suspension of a Member of the House
by the Speaker during the pendency of the proceedings,
but relates to disqualification proceedings pending
before the Speaker, which were not being disposed of for
one reason or the other. It was submitted that the fact
that the Speaker had not finalized the disqualification
petitions for almost a period of two years, could not and
did not vest the High Court with power to usurp the
jurisdiction of the Speaker and to pass interim orders
effectively disqualifying the five MLAs in question from
functioning effectively as Members of the House. The
learned Solicitor General urged that the facts of this
case would not, therefore, attract the exceptions carved
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out in Kihoto Hollohan ’s case (supra).
21. The learned Solicitor General lastly urged that
the single-most important error in the impugned judgment
is that it sought to foreclose the right of the Speaker
to decide the disqualification petitions under paragraph
4 of the Tenth Schedule. The said decision was also
wrong since the Division Bench chose to follow judgments
which related to the concept of “split” under paragraph 3
of the Tenth Schedule, which today stands deleted
therefrom. The learned Solicitor General submitted that
there was a clear difference between matters relating to
the erstwhile paragraph 3 of the Tenth Schedule and
paragraph 4 thereof. While paragraph 3 of the Tenth
Schedule required proof of two splits, paragraph 4(2)
requires proof of only one deemed merger. The learned
Solicitor General submitted that there was no concept of
deemed split in paragraph 3. It was submitted that
paragraph 4(2) is meant only as a defence to a petition
for disqualification and the same would succeed or fail
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depending on whether there was a deemed merger or not.
22. It was further submitted that under paragraph 4 of
the Tenth Schedule, the Speaker was not the deciding
authority on whether a merger of two political parties
had taken place or not. It was urged that the
expression used in paragraph 4(2) of the Tenth Schedule
“for the purpose of paragraph 4(1)” clearly indicates
that the deeming provision is not in addition to, but for
the purpose of paragraph 4(1), which is entirely
different from the scheme of paragraph 3 which uses the
expression “and”, thereby indicating that a split takes
place only if there is a split in the original political
party and at least one-third of the members of the
legislature party also joined in. It was further
submitted that the use of the expression “if and only if”
in paragraph 4 of the Tenth Schedule is to re-emphasize
the fact that the Speaker cannot decide whether merger of
the original party had taken place, as he is only
required to decide whether merger was a defence in a
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disqualification petition filed under paragraph 6 of the
Tenth Schedule.
23. The learned Solicitor General then urged that the
submission advanced on behalf of the Respondent No.1 that
in view of the delay by the Speaker in disposing of the
disqualification petitions, this Court should decide the
same, was wholly misconceived, since it pre-supposes the
vesting of power to decide such a question on the Court,
though the same is clearly vested in the Speaker. Even
otherwise, in the absence of any Special Leave Petition
by the Respondent No.1, the most that could be done by
this Court would be to dismiss the Special Leave
Petition.
24. Distinguishing the various decisions cited before
the Division Bench on behalf of the Respondent No.1, and,
in particular, the decision in Rajendra Singh Rana vs.
Swami Prasad Maurya [(2007) 4 SCC 270], the learned
Solicitor General submitted that in the said case, the
life of the Assembly was almost over, whereas in the
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present case the next election would be held only in
October, 2014. Furthermore, the same was a judgment
where the final orders passed by the Speaker on the
disqualification petitions were under challenge, unlike
in the present case where the disqualification petitions
are still pending decision with the Speaker.
25. The learned Solicitor General submitted that if
the decision in Rajendra Singh Rana ’s case (supra) which,
inter alia, dealt with the question relating to the
Speaker’s powers to decide a question in respect of
paragraph 4 of the Tenth Schedule independent of any
application under paragraph 6 thereof, is to be made
applicable in the facts of this case, the same would be
contrary to the decision of this Court in Raja Soap
Factory vs. S.P. Shantharaj [(1965) 2 SCR 800]. The
learned Solicitor General also made special reference to
the decision of this Court in Mayawati vs. Markandeya
Chand & Ors. [(1998) 7 SCC 517], wherein it was, inter
alia, held that if the order of the Speaker disqualifying
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a Member was to be set aside, the matter had to go back
to the Speaker for a fresh decision, since it was not the
function of this Court to substitute itself in place of
the Speaker and decide the question which had arisen in
the case.
26. In addition to his aforesaid submissions, the
learned Solicitor General also submitted that various
substantial questions of law in regard to the
interpretation of the Constitution, had arisen in the
facts of the present case, namely,
(a) Whether paragraph 4 of the Tenth Schedule to the
Constitution, read as a whole, contemplates that
when at least two-thirds of the members of the
legislature party agree to a merger between one
political party and another, only then there is a
“deemed merger” of one original political party
with another?
(b) Whether in view of the difference in language
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between paragraphs 3 and 4 of the Tenth Schedule,
a deemed merger is the only thing to be looked at
as opposed to a “split” which must be in an
original political party cumulatively with a group
consisting of not less than one third of the
members of the legislature party?
(c) Whether post-merger, those who do not accept the
merger are subject to the anti-defection law
prescribed in the Tenth Scheudle?
(d) Whether there is a conflict between the five-judge
Benches in Rajendra Singh Rana v Swami Prasad
Maurya, (2007) 4 SCC 270 as against Kihoto
Hollohan, 1992 Supp (2) SCC 651 and Supreme Court
Advocate-on-Record Association case, (1988) 4 SCC
409?
(e) What is the status of an ‘unattached’ Member in
either House of Parliament or in the State
Legislature? [already under reference to a larger
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Bench in Amar Singh v Union of India, (2011) 1 SCC
210]?
(f) Whether in view of Article 212(2) of the
Constitution of India, if a Speaker of a State
Legislature fails to decide a Petition for
disqualification, he would not be subject to the
jurisdiction of any Court?
(g) Whether the Speaker, while exercising original
jurisdiction/powers in a disqualification petition
under Para 6(1) of the Tenth Schedule to the
Constitution of India, has power to pass interim
orders?
27. According to the learned Solicitor General, the
aforesaid questions, which involved interpretation of
the Constitution, were required to be decided by a Bench
of not less than 5 Judges in view of the constitutional
mandate in Article 145(3) of the Constitution, before a
final decision was taken in these appeals.
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28. Appearing for Shri Kuldeep Bishnoi, the Respondent
No.1 in the appeals preferred by the Speaker, Haryana
Vidhan Sabha, and the five MLAs, against whom
disqualification proceedings were pending, Mr. Nidhesh
Gupta, learned Senior Advocate, at the very threshold of
his arguments submitted that this was a case which
clearly demonstrated how the process of law was being
misapplied and misused by the Speaker of the Haryana
Vidhan Sabha, so as to defeat the very purpose and
objective of the anti-defection law as contained in the
Tenth Schedule to the Constitution. Mr. Gupta emphasized
in great detail the manner in which the Speaker had
deferred the hearing of the disqualification petitions
filed by the Respondent No.1 against the five MLAs, on
one pretext or the other, despite the fact that the
applications for disqualification under paragraph 4(2) of
the Tenth Schedule to the Constitution had been made as
far back as on 9th December, 2009.
29. Mr. Gupta submitted that till today, the said
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disqualification applications are pending decision before
the Speaker and since such delay in the disqualification
proceedings was against the very grain and object of the
Tenth Schedule to the Constitution, the Division Bench of
the High Court had no other option but to pass
appropriate orders by invoking jurisdiction under Order
41 Rule 33 of the Code of Civil Procedure. In effect,
the entire burden of Mr. Gupta’s submissions was directed
against the prejudice caused to the Respondent No.1 on
account of the inaction on the part of the Speaker in
disposing of the pending disqualification petitions
within a reasonable time. Mr. Gupta sought to justify
the impugned order passed by the Division Bench of the
High Court on the ground that on account of the
deliberate delay on the part of the Speaker in allowing
the five dissident MLAs from continuing to function as
Members of the House despite their violation of the
provisions of paragraph 4(4) of the Tenth Schedule to the
Constitution, the High Court in exercise of its appellate
powers under Order 41 Rule 33 of the Code of Civil
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Procedure gave interim directions so as to ensure that
the Petitioner before the Speaker was non-suited on
account of the Speaker’s attempts to delay the
disqualification of the said five MLAs.
30. Mr. Gupta submitted that by virtue of the interim
order passed by the Division Bench of the High Court
under Order 41 Rule 33 of the Code of Civil Procedure,
hereinafter referred to as “CPC”, the High Court merely
suspended the said Members from discharging all their
functions as Members of the House, without touching their
membership. He submitted that such a course of action
was the only remedy available to the High Court to
correct the deliberate and willful attempt by the Speaker
to subvert the very essence of the Tenth Schedule to the
Constitution.
31. For all the submissions advanced by Mr. Gupta, the
main weapon in his armoury is Order 41 Rule 33 CPC. The
same is only to be expected, since no final order had
been passed by the Speaker on the disqualification
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petitions, which would have entitled the High Court to
pass interim orders in exercise of its powers under
Article 226 and 227 of the Constitution, since it is only
the Speaker, who under paragraph 6 of Tenth Schedule to
the Constitution, is entitled to decide questions in
regard to disqualification of a Member of the House on
the ground of defection. Furthermore, all the different
cases cited by Mr. Gupta relate to proceedings taken
against final orders passed by the respective Speakers
and the width of the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
32. Mr. Gupta dealt separately with the law relating
to Order 41 Rule 33 CPC in support of his contention that
under the said provision, the High Court was competent to
pass interim orders effectively disqualifying a Member of
the House, notwithstanding the provisions of paragraph 6
of Tenth Schedule to the Constitution. Mr. Gupta has
relied heavily on the decision of this Court in Mahant
Dhangir & Anr. vs. Madan Mohan & Ors. [(1987) Supp. SCC
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528] wherein, while considering the width of Order 41
Rule 33 CPC, this Court was of the view that a litigant
should not be left without remedy against the judgment of
a learned Single Judge and that if a cross-objection
under Rule 22 of Order 41 CPC was not maintainable
against the co-respondent, the Court could consider it
under Rule 33 of Order 41 CPC. This Court held that
Rules 22 and 33 are not mutually exclusive, but are
closely related to each other. If objection could not be
taken under Rule 22 against the co-respondent, Rule 33
could come to the rescue of the objector. It was also
observed that “the sweep of the power under Rule 33 is
wide enough to determine any question, not only between
the appellant and respondent, but also between the
respondent and co-respondents. The appellate court could
pass any decree or order which ought to have been passed
in the circumstances of the case.”
33. Mr. Gupta urged that the law, as declared by this
Court, indicates that under Order 41 Rule 33 CPC, this
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Court as an appellate Court, has power to pass any decree
or make any order which ought to have been passed or make
such further decree or order as the case may require.
34. Mr. Gupta also referred to the Constitution Bench
decision of this Court in L. Chandra Kumar vs. Union of
India [(1997) 3 SCC 261], in which the Bench was
considering the question as to whether under clause 2(d)
of Article 323-A, the jurisdiction of all Courts, except
the jurisdiction of this Court under Article 136 of the
Constitution, was excluded.
35. The very foundation of Mr. Gupta’s submissions is
based upon Order 41 Rule 33 CPC which ordinarily empowers
the Civil Court to pass any interim order in appeal.
What we are, however, required to consider in these
appeals is whether such jurisdiction could at all have
been invoked by the High Court when no final order had
been passed by the Speaker on the disqualification
petitions.
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36. Mr. Gupta lastly urged that the ground relating to
the mala fides of the Speaker’s inaction in delaying the
final decision in the disqualification proceedings, had
not been given up finally, as the very conduct of the
Speaker revealed such mala fides at almost every stage of
the pending proceedings.
37. While adopting the submissions made by the
Solicitor General, Mr. K.K. Venugopal and Mr. Mukul
Rohatgi, learned senior counsel, appearing for the
Appellants in the other appeals, submitted that the order
of the Division Bench would have far-reaching
consequences since the power to decide all matters
relating to disqualification of Members of the
Legislative Assembly were vested in the Speaker under
paragraph 6 of the Tenth Schedule to the Constitution.
38. During the pendency of the Special Leave
Petitions, I.A. Nos.2 and 3 were filed in Special Leave
Petition (Civil) No.54 of 2012 by S/Shri Ajay Singh
Chautala and Sher Singh Barshami, both MLAs in the
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Haryana Vidhan Sabha. A further application, being I.A.
No.4 of 2012, was filed by one Shri Ashok Kumar Arora,
who is also an MLA of the Haryana Vidhan Sabha. The
prayer in all the said applications was for leave to
intervene in the Special Leave Petition filed by the
Speaker of the Haryana Vidhan Sabha. The same were
allowed by Order dated 28th February, 2012.
39. Pursuant to the said order, Dr. Rajeev Dhawan,
learned senior counsel, appeared for Shri Ajay Singh
Chautala and the other interveners and urged that the
orders passed by the Speaker on 9th and 10th November,
2009, were void ab-initio and in excess of jurisdiction.
However, in the lengthy submissions advanced by Dr.
Dhawan in relation to the provisions of erstwhile
paragraph 3 and paragraph 4 of the Tenth Schedule to the
Constitution, reference was made to various decisions of
this Court, including that in Rajendra Singh Rana ’ s case
(supra). The same are, however, all based on decisions
taken by the Speaker on the question of “split” or
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“merger”, while in the instant case we are concerned with
the inaction of the Speaker in disposing of the
disqualification petitions filed by the Respondent No.1
and the jurisdiction of the High Court to issue interim
orders restraining a Member of the House from discharging
his functions as an elected representative of his
constituents despite the provisions of paragraph 6 of the
Tenth Schedule to the Constitution.
40. Most of the questions raised by Mr. Nidhesh Gupta
and Dr. Rajeev Dhawan contemplate a situation where the
Speaker had taken a final decision on a disqualification
petition. However, in the instant case we are really
required to consider whether the High Court was competent
to pass interim orders under its powers of judicial
review under Articles 226 and 227 of the Constitution
when the disqualification proceedings were pending before
the Speaker. In fact, even in Kihoto Hollohan ’s case
(supra), which has been referred to in extenso by Dr.
Dhawan, the scope of judicial review has been confined to
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violation of constitutional mandates, mala fides, non-
compliance with rules of natural justice and perversity,
but it was also very clearly indicated that having regard
to the constitutional scheme in the Tenth Schedule,
normally judicial review could not cover any stage prior
to the making of the decision by the Speaker or the
Chairman of the House, nor any quia timet action was
contemplated or permissible.
41. From the submissions made on behalf of the
respective parties, certain important issues emerge for
consideration. One of the said issues raised by Mr.
Nidhesh Gupta concerns the competence of the High Court
to assume jurisdiction under Order 41 Rule 33 CPC when
disqualification petitions were pending before the
Speaker and were yet to be disposed of. Another
important issue which arises, de hors the submissions
made on behalf of the respective parties, is whether the
question of disqualification on account of merger, which
had been accepted by the Speaker, could have been
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entertained by the Speaker under paragraph 4 of The Tenth
Schedule, when such powers were vested exclusively in the
Speaker under paragraph 6 thereof.
42. Relying on the decisions of this Court in Kihoto
Hollohan’s case (supra), Jagjit Singh Vs. State of
Haryana [(2006) 11 SCC 1] and Mayawati’s case (supra),
the learned Single Judge came to the conclusion that
while passing an order under paragraph 4 of the Tenth
Schedule to the Constitution, the Speaker does not act as
a quasi-judicial authority and that such order would
necessarily be subject to adjudication under paragraph 6.
43. Accordingly, the main challenge to the impugned
decision of the Division Bench of the Punjab & Haryana
High Court is with regard to the competence of the
Speaker of the Assembly to decide the question of
disqualification of the Members of the Haryana Janhit
Congress (BL) Party on their joining the Indian National
Congress Party on the basis of the letters written by the
five Members of the former legislature party.
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Incidentally, the learned Single Judge held that the
issue would have to be decided by the Speaker himself
while considering the disqualification petitions under
paragraph 6 of the Tenth Schedule to the Constitution.
What is important, however, is the question as to whether
such a decision could be arrived at under paragraph 4 of
the Tenth Schedule to the Constitution whereunder the
Speaker has not been given any authority to decide such
an issue. Paragraph 4 merely indicates the circumstances
in which a Member of a House shall not be disqualified
under Sub-paragraph (1) of Paragraph 2. One of the
circumstances indicated is where the original political
party merges with another political party and the Member
claims that he and any other Member of his original
political party have become Members of such other
political party, or, as the case may be, of a new
political party formed by such merger. As stressed by
the learned Solicitor General, for the purpose of sub-
paragraph (1), the merger of the original political party
of a Member of the House, shall be deemed to have taken
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place if, and only if, not less than two-thirds of the
Members of the legislature party concerned agreed to such
merger. In other words, a formula has been laid down in
paragraph 4 of the Tenth Schedule to the Constitution,
whereby such Members as came within such formula could
not be disqualified on ground of defection in case of the
merger of his original political party with another
political party in the circumstances indicated in
paragraph 4(1) of the Tenth Schedule to the Constitution.
44. The scheme of the Tenth Schedule to the
Constitution indicates that the Speaker is not competent
to take a decision with regard to disqualification on
ground of defection, without a determination under
paragraph 4, and paragraph 6 in no uncertain terms lays
down that if any question arises as to whether a Member
of the House has become subject to disqualification, the
said question would be referred to the Speaker of such
House whose decision would be final. The finality of the
decisions of the Speaker was in regard to paragraph 6
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since the Speaker was not competent to decide a question
as to whether there has been a split or merger under
paragraph 4. The said question was considered by the
Constitution Bench in Rajendra Singh Rana ’s case (supra).
While construing the provisions of the Tenth Schedule to
the Constitution in relation to Articles 102 and 191 of
the Constitution, the Constitution Bench observed that
the whole proceedings under the Tenth Schedule gets
initiated as a part of disqualification proceedings.
Hence, determination of the question of split or merger
could not be divorced from the motion before the Speaker
seeking a disqualification of the Member or Members
concerned under paragraph 6 of the Tenth Schedule. Under
the scheme of the Tenth Schedule the Speaker does not
have an independent power to decide that there has been
split or merger as contemplated by paragraphs 3 and 4
respectively and such a decision can be taken only when
the question of disqualification arises in a proceeding
under paragraph 6. It is only after a final decision is
rendered by the Speaker under paragraph 6 of the Tenth
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Schedule to the Constitution that the jurisdiction of the
High Court under Article 226 of the Constitution can be
invoked.
45. We have to keep in mind the fact that these
appeals are being decided in the background of the
complaint made to the effect that interim orders have
been passed by the High Court in purported exercise of
its powers to judicial review under Articles 226 and 227
of the Constitution, when the disqualification
proceedings were pending before the Speaker. In that
regard, we are of the view that since the decision of the
Speaker on a petition under paragraph 4 of the Tenth
Schedule concerns only a question of merger on which the
Speaker is not entitled to adjudicate, the High Court
could not have assumed jurisdiction under its powers of
review before a decision was taken by the Speaker under
paragraph 6 of the Tenth Schedule to the Constitution.
It is in fact in a proceeding under paragraph 6 that the
Speaker assumes jurisdiction to pass a quasi-judicial
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order which is amenable to the writ jurisdiction of the
High Court. It is in such proceedings that the question
relating to the disqualification is to be considered and
decided. Accordingly, restraining the Speaker from
taking any decision under paragraph 6 of the Tenth
Schedule is, in our view, beyond the jurisdiction of the
High Court, since the Constitution itself has vested the
Speaker with the power to take a decision under paragraph
6 and care has also been taken to indicate that such
decision of the Speaker would be final. It is only
thereafter that the High Court assumes jurisdiction to
examine the Speaker’s order.
46. The submissions made by Mr. Nidhesh Gupta relating
to Order 41 Rule 33, in our view, are not of much
relevance on account of what we have indicated
hereinabove. Order 41 Rule 33 vests the Appellate Court
with powers to pass any decree and make any order which
ought to have been passed or made and to pass or make
such further or other decree or the order, as the case
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may require. The said power is vested in the Appellate
Court by the statute itself, but the principles thereof
cannot be brought into play in a matter involving a
decision under the constitutional provisions of the Tenth
Schedule to the Constitution, and in particular paragraph
6 thereof.
47. The appeal filed by the Speaker, Haryana Vidhan
Sabha, against the judgment of the Division Bench of the
High Court, is not, therefore, capable of being sustained
and the Appeal filed by the Speaker is accordingly
dismissed. The other Appeals preferred by the five
disqualified MLAs have, therefore, to be allowed to the
extent of the directions given by the learned Single
Judge and endorsed by the Division Bench that the five
MLAs would stand disqualified from effectively
functioning as Members of the Haryana Vidhan Sabha till
the Speaker decided the petitions regarding their
disqualification, within a period of four months.
48. In our view, the High Court had no jurisdiction to
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pass such an order, which was in the domain of the
Speaker. The High Court assumed the jurisdiction which it
never had in making the interim order which had the
effect of preventing the five MLAs in question from
effectively functioning as Members of the Haryana Vidhan
Sabha. The direction given by the learned Single Judge
to the Speaker, as endorsed by the Division Bench, is,
therefore, upheld to the extent that it directs the
Speaker to decide the petitions for disqualification of
the five MLAs within a period of four months. The said
direction shall, therefore, be given effect to by
Speaker. The remaining portion of the order
disqualifying the five MLAs from effectively functioning
as Members of the Haryana Vidhan Sabha is set aside. The
said five MLAs would, therefore, be entitled to fully
function as Members of the Haryana Vidhan Sabha without
any restrictions, subject to the final decision that may
be rendered by the Speaker in the disqualification
petitions filed under paragraph 6 of the Tenth Schedule
to the Constitution.
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49. The Speaker shall dispose of the pending
applications for disqualification of the five MLAs in
question within a period of three months from the date of
communication of this order.
50. Having regard to the peculiar facts of the case,
the parties shall bear their own costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi Dated:28.09.2012.