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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.