SPEAKER, ORISSA LEGISLATIVE ASSEMBLY Vs UTKAL KESHARI PARIDA
Bench: ALTAMAS KABIR,J. CHELAMESWAR,VIKRAMAJIT SEN
Case number: C.A. No.-000469-000469 / 2013
Diary number: 37308 / 2012
Advocates: RAJ KUMAR MEHTA Vs
AMIT ANAND TIWARI
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.469 OF 2013
(Arising out of SLP(C)No.35000 of 2012) Speaker, Orissa Legislative Assembly … APPELLANT
Vs. Utkal Keshari Parida … RESPONDENT
WITH CIVIL APPEAL NOS.470, 471 & 472 OF 2013
(Arising out of SLP(C)Nos.35023, 35024 and 35025 of 2012)
J U D G M E N T ALTAMAS KABIR, CJI.
1. Leave granted.
2. These Appeals raise an interesting issue
relating to the powers of the Speaker of the Orissa
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Legislative Assembly under Rule 6(1) and (2) of the
Members of Orissa Legislative Assembly
(Disqualification On Ground Of Defection) Rules,
1987, hereinafter referred to as "the 1987 Rules",
in the wake of paragraphs 2(1)(a) and 8 of the
Tenth Schedule to the Constitution of India and are
taken up together for disposal. The facts giving
rise to the said legal question are set out
hereinbelow.
3. The Appellant herein is the Speaker of the
Orissa Legislative Assembly. There were four
elected members of the National Congress Party
(NCP) in the Orissa Legislative Assembly. All the
said four elected members of the NCP joined the
Biju Janata Dal (BJD), which is the Ruling Party in
the State of Orissa. On account of such defection,
Respondent, Shri Utkal Keshari Parida, who is the
President of the State Unit of the NCP in the State
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of Orissa, filed four separate Disqualification
Petitions before the Appellant for disqualification
of the said four elected members of the NCP. The
Disqualification Petitions were placed before the
Appellant on 24.07.2012 and copies thereof were
forwarded to the concerned Members of the
Legislative Assembly, in terms of Rule 7(3) of the
1987 Rules.
4. Inasmuch as, the matter was being delayed, the
Respondent filed Writ Petition (C) No. 14869 of
2012, before the Orissa High Court, inter alia, for
a direction to the Speaker of the Assembly to
dispose of the Disqualification Petitions
expeditiously. Before the Division Bench of the
said High Court, an objection was taken regarding
the maintainability of the Writ Petition at the
instance of the Respondent, who though being the
President of the State Unit of the NCP, was not a
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Member of the Legislative Assembly, in view of the
provisions of Sub-rule (2) of Rule 6 of the 1987
Rules. Rule 6 of the 1987 Rules, which is relevant
for our purpose, is extracted hereinbelow:
"6 (1) No reference of any question as to whether a Member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such Member made in accordance with the provisions of this rule.
(2) A petition in relation to a Member may be made in writing to the Speaker by any other Member:
Provided that a petition in relation to the Speaker shall be addressed to the Secretary.
(3) The Secretary shall:-
(a) as soon as may be after the receipt of a petition under the proviso to sub-rule (2) make a report in respect thereof to the House ; and
(b) as soon as may be after the House has elected a Member in pursuance of the proviso to sub-
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paragraph (1) of paragraph 6 of the Tenth Schedule place the petition before such Member.
(4) Before making any petition in relation to any Member, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such Member has become subject to disqualification under the Tenth Schedule.
(5) Every petition:
(a) shall contain a concise statement of the material facts on which the petitioner relies; and
(b) shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and addresses of such persons and the gist of such information as furnished by each such person.
(6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings.
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(7) Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
5. Relying on the interpretation of the aforesaid
Rule in the judgment delivered by this Court in Dr.
Mahachandra Prasad Singh v. Chairman, Bihar
Legislative Council and Others, [(2004) 8 SCC 747],
the High Court came to the conclusion that the Writ
Petition was maintainable at the instance of the
Respondent herein. While arriving at such
conclusion, the High Court also took into
consideration the decision in Kihoto Hollohan v.
Zachillhu and Others, [1992 Supp (2) SCC 651] and
the provisions of Article 191 read with paragraph 2
of the Tenth Schedule to the Constitution of India.
6. Interpreting the provisions of Rule 6 of the
1987 Rules, the High Court also took into
consideration the judgment of this Court in
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Rajendra Singh Rana and Others v. Swami Prasad
Maurya and Others, [(2007) 4 SCC 270], in which
reference had been made to another decision in the
case of Prakash Singh Badal v. Union of India, [AIR
1987 P&H 263]. On a consideration of the said two
decisions and the other decisions already referred
to hereinbefore, the High Court came to the
conclusion that it was abundantly clear that if any
Member of the House belonging to a political party
had joined another political party, which is a
disqualification under paragraph 2(1) of the Tenth
Schedule, any person interested could make a
reference to the Speaker under Rule 6 of the 1987
Rules and it was not necessary that such a
reference had to be made by a Member of the
Legislative Assembly. On its aforesaid finding,
the High Court rejected the contentions made on
behalf of the Appellant and held that the same were
maintainable under Rule 6 of the 1987 Rules.
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7. This Appeal has been preferred by the Speaker
of the Orissa Legislative Assembly questioning the
aforesaid decision of the High Court.
8. Appearing in support of the Appeals, Mr. K.K.
Venugopal, learned Senior Advocate, submitted that
the High Court had wrongly interpreted the
provisions of Sub-rules (1) and (2) of Rule 6 of
the 1987 Rules in arriving at the erroneous
conclusion that the Disqualification Petitions
under Rules 6 and 7 of the 1987 Rules could be made
not only by Members of the House, but by any
interested person also. Mr. Venugopal urged that
the language of Sub-rule (2) of Rule 6 of the 1987
Rules clearly indicates that it is only a Member of
the House, who in relation to a petition for
disqualification of another Member, could apply to
the Speaker. Mr. Venugopal urged that giving any
other interpretation to the said provisions would
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do violence to and be contrary to the intention
contained in Rule 6 of the 1987 Rules. Mr.
Venugopal urged that after the impugned judgment
was delivered by the High Court, the matter was
referred by the Speaker to the Committee of
Privileges of the House on 15.10.2012 under Rule
7(4) of the 1987 Rules. The meeting of the said
Committee was convened on 22.12.2012, but no
business could be conducted in the meeting on
account of lack of quorum.
9. On 2.1.2013, a meeting of the Committee of
Privileges was convened to finalise the modalities
for hearing of the Disqualification Petitions filed
on behalf of the Respondent. However, before the
matter came to be decided by the Committee of
Privileges, the Special Leave Petition was filed to
set aside the judgment of the Division Bench of the
Orissa High Court holding that the Disqualification
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Petitions were maintainable at the instance of a
non-Member of the House.
10. Mr. Venugopal urged that in the light of the
explicit language used in Sub-rule (2) of Rule 6 of
the 1987 Rules, framed by the Speaker of the
Assembly under paragraph 8 of the Tenth Schedule to
the Constitution, the High Court was clearly wrong
in interpreting the said provisions so as to allow
an application for disqualification of a Member of
the House to be made by a person who was not a
Member thereof. Mr. Venugopal submitted that the
Order of the High Court was contrary to the
provisions of law and was liable to be set aside.
11. On the other hand, Mr. Amarendra Sharan,
learned Senior Advocate, who appeared for the sole
Respondent who had made the application for
disqualification of the four Members before the
Speaker, submitted that the four MLAs who had been
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elected on the nomination of the NCP, joined the
Biju Janata Dal on 5.6.2012, without giving any
prior notice of their intention to do so and that
they had voluntarily given up the membership of the
NCP by joining the BJD, thereby incurring
disqualification as Members of the Assembly under
paragraph 2(1)(a) of the Tenth Schedule to the
Constitution.
12. Mr. Sharan also submitted that the action of
the said four MLAs did not amount to a merger of
the NCP Legislature Party with the Biju Janata Dal
on account of the fact that a merger could only be
of a political party with any other political
party. Mr. Sharan submitted that the legislature
party of a political party by itself had no
authority or power to merge with any other
political party, without the merger of its original
political party. In such circumstances, the
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provisions of paragraph 2(1)(a) of the Tenth
Schedule to the Constitution were squarely
attracted to the facts of this case and the same
had merely to be brought to the notice of the
Speaker for him to hold that the said four MLAs
stood disqualified from the membership of the
House.
13. On the question of the locus standi of the
Respondent to maintain the writ petition in his
capacity as the President of the State unit of the
NCP in the State of Orissa, Mr. Sharan submitted
that the said question was no longer res integra in
view of the decision rendered by this Court in the
case of Dr. Mahachandra Prasad Singh (supra), in
which reference had been made to a Full Bench
decision of the Punjab and Haryana High Court in
the case of Prakash Singh Badal (supra). Mr.
Sharan submitted that the Full Bench of the Punjab
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& Haryana High Court had considered the question,
which has also arisen in this case, and it had held
that paragraph (2)(1)(a) of the Tenth Schedule did
not contemplate or visualize that the
disqualification incurred by a Member of the House
would have to be brought to the notice of the
Speaker only by a Member of the House. Mr. Sharan
submitted that the Full Bench had also indicated
that in relation to paragraph 6 of the Tenth
Schedule, the only prerequisite is the existence of
a question of disqualification of a Member. Such a
question could be raised before the Speaker by an
interested person for declaring that the said
Member stood disqualified from being a Member of
the House. It was in that context that in the
instant case the Speaker had held that when any
Member belonging to a political party joined
another political party, which amounted to
disqualification under paragraph 2(1)(a) of the
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Tenth Schedule, any person interested could make a
reference to the Speaker under Rule 6 and it was
not necessary that such reference would have to be
made only by a Member of the Legislative Assembly.
Mr. Sharan submitted, that as indicated by this
Court in Dr. Mahachandra Prasad Singh's case, as
President, NCP, the Respondent had the locus standi
to maintain his application, both before the
Speaker, as well as before the High Court.
14. Mr. Sharan submitted that any other
interpretation given to the provisions of paragraph
2(1)(a) read with Rule 6 (1) and (2) of the 1987
Rules, would defeat the very object and purpose of
the Tenth Schedule to the Constitution.
15. On a consideration of the submissions made on
behalf of the respective parties, we are unable to
agree with the interpretation sought to be given by
Mr. Venugopal to the provisions of Rule 6 of the
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1987 Rules read with paragraph 2(1)(a) of the Tenth
Schedule to the Constitution on the question of
locus standi of the Respondent, as the President of
the State unit of the National Congress Party in
the State of Orissa, to file the application
seeking disqualification of the four Members of the
National Congress Party who had switched their
loyalties to the Biju Janata Dal.
16. Although, paragraph 8 of the Tenth Schedule
vests the Speaker of the House with powers to make
rules for giving effect to the provisions of the
Tenth Schedule, the Rules framed under such powers
would amount to delegated legislation which cannot
override the substantive provisions of the
Constitution contained in the Schedule itself. The
provisions of Sub-Rules (1) and (2) of Rule 6 of
the 1987 Rules cannot override the provisions of
paragraph 2(1)(a) of the Tenth Schedule to the
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Constitution or for that matter, paragraph 6 which
vests the Speaker of the House with the authority
to decide the question as to whether a Member of a
House had become subject to disqualification under
the Schedule. Although, Rule 6(2) of the 1987
Rules provides that a petition in relation to a
Member for the purposes of Sub-Rule (1) may be made
in writing to the Speaker by any other Member, such
a provision is neither contemplated nor provided
for in the Tenth Schedule itself. As has been
submitted by Mr. Amarendra Sharan, learned Senior
Advocate for the Respondent, in a case such as
this, where all the four Members elected to the
Assembly from the National Congress Party had
changed their allegiance from the National Congress
Party to the Biju Janata Dal, there would be no one
to bring such fact to the notice of the Speaker and
ask for disqualification of the said Members who
clearly stood disqualified under the provisions of
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the Tenth Schedule. In other words, although,
disqualified under paragraph 2(1)(a) of the Tenth
Schedule, in the absence of any application for
disqualification to the Speaker, they would
continue to function as Members of the Assembly,
which was not the intent of or the object sought to
be achieved by the 52nd Amendment by which the
Tenth Schedule was introduced in the Constitution.
17. The Statement of Objects and Reasons of the
Bill, which finally became the Constitution (52nd
Amendment) Act, 1985, whereby the Tenth Schedule
was added to the Constitution with effect from 1st
March, 1985, inter alia, indicated that the evil of
political defection had become a matter of national
concern and if it was not checked, it could very
well undermine the very foundation of our democracy
and the principles which sustain the same. In such
event, if the provisions of the Tenth Schedule are
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interpreted to exclude the right of any person
interested to bring to the notice of the Speaker of
the House the fact that any or some of its Members
had incurred disqualification from the membership
of the House on any of the eventualities indicated
in paragraphs 2 and 4 therein, it would render the
inclusion of the Tenth Schedule to the Constitution
otiose and defeat the objects and intent of the
52nd Amendment of the Constitution.
18. The conundrum presented on account of the
provisions of the Tenth Schedule in addition to
Rules 6(1) and (2) of the 1987 Rules had fallen for
consideration in Dr. Mahachandra Prasad Singh's
case (supra). Speaking for the Bench, G.P. Mathur,
J. (as His Lordship then was), observed in
paragraph 16 of the judgment that the purpose and
object of the Rules framed by the Chairman in
exercise of power conferred by paragraph 8 of the
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Tenth Schedule was to facilitate the Chairman in
discharging his duties and responsibilities in
resolving any dispute as to whether the Member of
the House had become subject to disqualification
under the Tenth Schedule. It was also observed
that the Rules being in the domain of procedure,
were intended to facilitate the holding of an
inquiry and not to frustrate or obstruct the same
by the introduction of innumerable technicalities.
Being subordinate legislation, the Rules could not
make any provision which could have the effect of
curtailing the content and scope of the substantive
provision, namely, the Tenth Schedule.
19. The aforesaid observation is precisely what we
too have in mind, as otherwise, the very object of
the introduction of the Tenth Schedule to the
Constitution would be rendered meaningless. The
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provisions of Sub-rules (1) and (2) of Rule 6 of
the 1987 Rules have, therefore, to be read down to
make it clear that not only a Member of the House,
but any person interested, would also be entitled
to bring to the notice of the Speaker the fact that
a Member of the House had incurred disqualification
under the Tenth Schedule to the Constitution of
India. On receipt of such information, the Speaker
of the House would be entitled to decide under
paragraph 6 of the Tenth Schedule as to whether the
Member concerned had, in fact, incurred such
disqualification and to pass appropriate orders on
his findings.
20. We, accordingly, dismiss all the appeals and
uphold the judgment of the High Court impugned
therein.
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21. In the facts and circumstances of the case,
there will be no order as to costs.
...................CJI. (ALTAMAS KABIR)
.....................J. (J. CHELAMESWAR)
.....................J. (VIKRAMAJIT SEN)
New Delhi Dated: January 17, 2013.