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TMI Blog2012 (10) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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. - CIVIL APPEAL NO.7125, 7126, 7127, 7128 OF 2012 - - - Dated:- 28-9-2012 - ALTAMAS KABIR AND J. CHELAMESWAR, JJ. JUDGMENT 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 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere with the disqualification proceedings pending before the Speaker and pass an order 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 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 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) 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 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 Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or would interference be permissible at an 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 out in Kiho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercising 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. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 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. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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