9911796707
TMI Blog1993 (3) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... Speaker, in purported exercise of the power of review, setting aside the earlier orders of disqualification of certain Members made on merits by the Speaker, were challenged on the ground that the Speaker has no such power of review. The High Court took the view, that the writ petitions were filed after considerable delay, and, therefore, upholding the preliminary objection, had to be dismissed merely. on the ground of laches; and, therefore, merits of the contention that the Speaker had no such power of review was not considered. The main questions which arise for decision in these appeals are, therefore, two; namely (1)LACHES Are the impugned orders of the High Court dismissing the writ petitions merely on the ground of laches susceptible to interference under Article 136 of the Constitution in the present case; and (2)POWER OF REVIEW If so, does the Speaker, acting as the authority under the Tenth Schedule of the Constitution, have no power of review, so that any order made by him in purported exercise of the power of review is a nullity? The further question of the consequence and nature of relief to be granted, would arise only if these questions are answered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kashinath Jalmi and Ramakant Khalap challenging the order of review dated 8.3.1991 passed by the Acting Speaker, inter alia on the ground that the Speaker did not have any power to review the earlier order of disqualification made under the Tenth Schedule to the Constitution of India. The High Court by the order dated 4.2.1992 upheld the preliminary objection of Ravi S. Naik that the writ it petition filed ten months after the date of the impugned order, was liable to be dismissed at the admission stage on the ground of laches. This order, dismissing the writ petition for this reason alone, is challenged in Civil Appeal No. 1094 of 1992. After the dismissal of writ petition No.11 of 1992, another Member of the Goa Assembly, Churchill Alemao filed writ petition No.70 of 1992, also challenging the order of review dated 8.3.1991 made by the Acting Speaker setting aside the earlier order dated 15.2.1991 made by the Speaker disqualifying Ravi Naik, on similar grounds. The High Court dismissed writ petition No.70 of 1992 also at the admission stage, for the same reason, on the ground of laches. Civil Appeal No.1096 of 1992 by Churchill Alemao is against the order dated 24.2.1992 dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1992, Shri Harish Salve for the appellant in C.A. No.1095 of 1992 and Shri R.K. Garg for the appellant in C.A. No.1096 of 1992 advanced substantially similar arguments, to contend that dismissal of the writ petitions by the High Court on the ground of laches is insupportable, in the present context, where challenge to the order of review made by the Speaker under the Tenth Schedule is on the ground of nullity, since the Speaker has no power of review under Tenth Schedule, and that the order of review being a nullity, must be so declared. In reply, Shri F.S. Nariman for respondent Ravi S. Naik in Civil Appeal Nos. 1094 and 1096 of 1992, and Shri Ashok Desai for respondents Bandekar and Chopdekar in Civil Appeal No.1095 of 1992, strenuously urged that the exercise of power under Article 226 of the Constitution being discretionary, the refusal to exercise that power at the instance of the writ petitioners was a proper exercise of the discretion, which does not call for any interference by this court in exercise of its power under Article 136 of the Constitution. Both the learned counsel, in their reply, further submitted, that by the very nature of the high office of the Speaker a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders of disqualification of the Members, and the merits thereof However, we do not propose to advert to them, as we had indicated to the learned counsel at the hearing, since those aspects will have to be gone into , in the first instance by the High Court, on the view we are taking in these appeals and, therefore, we would like to avoid the likelihood of any possible prejudice to either side resulting from any reference made by us to the same. Accordingly, we are confining ourselves only to the facts and the arguments relating to the aforesaid two questions, which alone arise before us. We may add, that for the purpose of these appeals, it has been assumed by both sides that the Deputy Speaker functioning as the Speaker would have the powers of the Speaker under the Tenth Schedule including that of review, if any. The further question whether the Deputy Speaker, who discharging the functions of the Speaker, has all the powers of the Speaker under the Tenth Schedule is, therefore, undisputed for the present purpose. We shall now consider the aforesaid two main questions which arise for decision in the present case. Any further question arising for decision, in case both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Speaker acting under the Tenth Schedule, since the discretion of the High Court under Article 226 of the Constitution must be exercised judicially, so as not to permit perpetuation of an illegality. Shri Jethmalani also submitted, that the doctrine of laches does not apply where declaration sought is of nullity, in order to prevent its continuing operation, and laches is not relevant in the domain of public law relating to public office, where the purpose is to prevent an usurper from continuing to hold a public office. Shri Harish Salve adopted these arguments and further submitted that Dr. Kashinath Jalmi and Ramakant Khalap had consistently taken the stand, that the Speaker's order of disqualification is final and not open to review by anyone. He submitted, that for this reason no prevarication in their stand can be attributed to either of them, as has been done against Churchill Alemao, by the learned counsel for the respondents, for his support to Ravi Naik during the intervening period. It was further urged by the learned counsel for the appellants, that the motive and conduct of the writ petitioners in such matters is not decisive or fatal to the enquiry c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en our anxious consideration to the forceful submissions of learned counsel for the both sides, we find ourselves unable to sustain the judgment of the High Court that the writ petitions were liable to be dismissed, merely on the ground of laches. One of the submissions of Shri Nariman was, that even though there is no period of limitation prescribed by statute for filing a writ petition, yet in a case like the present, the apt analogy is of an election petition calling in question an election, which is required to be filed within 45 days from the date of election of the returned candidate, as provided in Section 81(1) of the Representation of the People Act, 1951, to indicate that unless such a challenge is made promptly the courts would refuse to examine such a question after the lapse of a reasonable period. On this basis, he argued that a writ petition filed after ten months of the date of the order of review made by the Speaker acting under the Tenth Schedule, must be treated as unduly delayed and is liable to rejection on the ground of laches, as has been done by the High Court in the present case. We are unable to accept this part of the submission since it is not an apt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tenure of the Member. This aspect is significant for dealing with the question of laches in the present case. In order to justify dismissal of the writ petitions for laches Shri Nariman placed reliance on certain decisions, some of which have been referred by the High Court. Shri Nariman argued that the doctrine of laches applies as much to the writ of quo warranto, as it does to a writ of certiorari, and that the oblique motives of the petitioner together with his conduct may disentitled him to grant of the relief claimed by such a petition. We now refer to some of these decisions. The basic decision for submission on the doctrine of laches, relied on, is The Lindsay Petroleum Company v. Prosper Armstrong Hurd, Abram Farewell and John Kemp, 1874 L.R. 5 PC 221 which has been followed in the decisions of this Court in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors., AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation v. Shri Balwant Regular Motor Service Amravati Ors., [1969] 1 SCR 808. In The Moon Mills Ltd, a writ of certiorari was sought to challenge a decision affecting the rights of the Petitioner, wherein the question arose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case, since grant of the relief under Article 226 of the Constitution is a matter of sound judicial discretion and governed by the doctrine of laches. In M/s Dehri Rohtas Light Railway Company Limited, Tilokchand Motichand's case was distinguished and it was indicated that the test is not to physical running of time' and 'the real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created.' It is significant that all these decisions relate to enforcement of personal rights, wherein a writ of certiorari was claimed for quashing some decision adverse to the petitioner and neither of them related to assertion of a public right in the nature of a class action. In the present case the claim is for the issue of a writ of quo warranto on the ground that Ravi S. Naik, Chopdekar and Bandekar are holding public office, having suffered disqualification as Member of the Assembly subsequent to their election, and of them, Ravi S. Naik continues to hold the high public office of Chief Minister of Goa. The relief claimed in the present case is not the conferment of a personal benefit to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the public and that by an individual plaintiff indicating that even though delay or laches may be attributable to an individual plaintiff, it may not be so to an action brought on behalf of the public. This is more so, when the grievance made is that a person continues to hold a public office without the authority of law. Shri Nariman laid great stress on Everett v. Griffuths, (1924) 1 K.B. 941 at page 959 where it is stated: It is plain, however, that in quo warranto proceedings the Court can and will inquire into the conduct and motives of the relator. Reference is made to a passage from Halsbury's Laws of England and some earlier decisions which have been referred for treating the point as well settled. These observations were made after examining the claim on merits, and in view of the fact that the plaintiff was known for his frequent persistent and fruitless litigation proceedings, having commenced primarily with the motive of resentment. In spite of these strong observations in the judgment about the conduct and motive of the plaintiff the court did not refuse to go into the points raised, for that reason alone. In our opinion this decision can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants in the present case could not be attributed, could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself Shri R.K. Garg submitted that laches of the appellants can not legitimise usurpation of office by Ravi S. Naik, Chopdekar and Bandekar; and Shri Jethmalani submitted that manifest illegatlity will not be sustained solely on the ground of laches when it results in continuance in a public office of a person without lawful authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d declaring the availability of judicial review against the Speaker's order of disqualification made under para 6 of the Tenth Schedule. It was further submitted by learned counsel for the respondents, that only a limited judicial review being available against the Speaker's order of disqualification, as held by the majority in Kihoto Hollohan, some power of review inheres in the Speaker even thereafter to correct palpable errors falling outside the limited scope of judicial review. It was then submitted, that the defects in the orders of disqualification made by the Speaker in the present case, which were corrected by review, were such defect which come within the ambit of the limited power of review available to the Speaker in addition to availability of judicial review as declared in Kihoto Hollohan. Both sides referred to the merits of the orders of disqualification made by the Speaker but we refrain from adverting to this aspect as indicated earlier, in view of the conclusion reached by us that the Speaker has no power of review under the Tenth Schedule, and an order of disqualification made by him under para 6 is subject to correction only by judicial review as held i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Goa Legislative Assembly (Disqualification on grounds of defection) Rules, 1986, relating to the procedure. It was submitted that these general rules relating to Speaker's power while dealing with a breach of privilege can be read to confer an express power of review. The last limb of Shri Nariman's contention may be disposed of, at the outset. There is no scope for reading into the Tenth Schedule any of the powers of the Speaker which he otherwise has while functioning as the Speaking in the House, to clothe him with any such power in his capacity as the statutory authority functioning under the Tenth Schedule of the Constitution. This is well settled by the decisions of the Court relating to Speaker's orders under the Tenth Schedule. Accordingly, any power of the Speaker, available to him while functioning in the House, is not to be treated as his power or privilege as the authority under the Tenth Schedule. The majority opinion in kihoto Hollohan was pressed into service by Shri Nariman as well as Shri Ashok Desai to support several aspects of their submissions. We may now refer to that opinion. In Kihoto Hollohan there was no difference between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to the decision in Kihoto Hollohan itself, as indicated. At one stage, Shri Nariman also attempted to read the majority opinion in Kihoto Hollohan as not expressly declaring para 7 in the Tenth Schedule as unconstitutional, adding that such a declaration was made only in the minority opinion which declared the entire Tenth Schedule to be unconstitutional. We are unable to read the majority opinion in this manner. Any attempt to find support for the submissions of the respondents, in the majority opinion in Kihoto Hollohan, is futile. The Constitution Bench decision in Shivdeo Singh and Ors. v. State of Punjab and Ors. (supra) is distinguishable and of no assistance to the respondents in the present case. That was a case, wherein the High Court had exercised its power in a second writ petition filed under Article 226 of the Constitution by a person who was not made a party in the earlier writ petition, the order made in which was adverse to him. This court held that the second writ petition by such a person was maintainable, and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of a person who was not a party to the previo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no more. As held in Kihoto Hollohan, the Speaker's order is final being subject only to judicial review, according to the settled parameters of the exercise of power of judicial review in such cases, which it is not necessary to elaborate in the present context. The existence of judicial review against the Speaker's order of disqualification made under para 6 is itself a strong indication to the contrary that there can be no inherent power of review in the Speaker, read in the Tenth Schedule by necessary implication. The need for correction of errors in the Speaker's order made under the Tenth Schedule is met by the availability of judicial review against the same, as held in Kihoto Hollohan. In our opinion there is no merit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification; or that such a power existed till 12th November, 1991 when the decision in Kihoto Hollohan was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable error outside the scope of judicial review. CONSEQUENCE On the above view taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result in uncertainty in the State. Having given our anxious consideration to the matter we have no doubt that the fact to Ravi S. Naik being the Chief Minister of the State of Goa is a wholly irrelevant circumstance for this purpose. All the same an order which would be just and proper to make in the circumstances of this case has to be made, taking into account also the fact that the law was declared and came to be settled only by the decision of this Court in Kihoto Hollohan, after making of the orders of review by the Acting Speaker in the present case, where after writ petition No.48 of 1991 was dismissed as not pressed. We have no doubt that Article 142 of the Constitution enables us, if necessary, to enlarge the powers of this Court for making an order which would be just in the facts and circumstances of this case. In our opinion, it would be appropriate to revive writ petition No.48 of 1991 for hearing on merit by the High Court as suggested even by Shri Ram Jethmalani, and to also order interim stay of the operation of the order of disqualification dated 15.2.1991 made by the Speaker, which was the situation prevailing till that writ petition was dismissed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
