Deo Kumar Singh vs The State of Bihar

As the issues involved in both these petitions are identical

and they relate to formation of the Government in the State of Bihar, we

propose to deal with the matter and dispose them of by this common

order.

In Civil Writ Jurisdiction Case No. 10819 of 2017, the

petitioner claims to be an Ex-Mukhia of a Panchayat in District-Patna,

who was imprisoned during emergency for 18 months, and says that he

is disturbed by the political happenings in the State of Bihar, as certain

events and action taken are contrary to the constitutional mandate, this

writ petition has been filed and the only ground raised is that without

calling the single largest party in the Legislative Assembly for proving

its majority and without granting them an opportunity, a particular

party/group has been invited to form the Government.

Similarly, in Civil Writ Jurisdiction Case No.10820 of

2017, petitioners claim to be the members of the Legislative Assembly,

belonging to a political party/group, i.e. the single largest party in the

Assembly, and it is their case that contrary to the law laid down by the

Hon''ble Supreme Court in the case of S. R. Bommai v. Union of India

[(1994) 3 SCC 1]; and Rameshwar Prasad Versus v. The Union of

India [(2006) 2 SCC 1], without calling the political party with the

largest number of elected members in the Legislative Assembly, the

party or group, which did not have the largest number or majority, has

been called to form the Government. It is stated that without

considering the request made by the leader of the petitioners'' party,

who had requested vide Annexure-1 on 27.07.2017 to His Excellency

the Governor of Bihar to permit him to form the Government, the action

taken for installing the Government without giving an opportunity to

the single largest party in the Legislative Assembly is illegal and

unconstitutional.

Respondents oppose the aforesaid contentions and say that

now both the petitions have been rendered infructuous as a floor test in

the Assembly has been conducted on 28th of July, 2017 and the

party/group, which had staked it claim to form the Government, has

won the floor test. It is argued that now, in these petitions, once the

floor test has been conducted, no action or consideration is required to

be given and they are rendered infructuous.

Learned counsel for the respondents also referred to

Annexure-1 dated 27.07.2017 submitted by the leader of the Legislative

Assembly, who claims to have the largest members, to say that the

exact number or other particulars as per the claim have not been given

in the said communication to show that they have the backing of the

largest number of legislators and, now, once in the floor test conducted,

it has been proved that they do not have the majority, it is stated that

interference into the matter is not called for.

However, learned counsel for the petitioners vehemently

argued that as the single largest party was not granted opportunity by

His Excellency the Governor of Bihar to form the Government, there is

a constitutional violation in the matter and, therefore, interference

should be made.

Even though learned counsel representing respondent No.2

(the Principal Secretary to the Governor of Bihar, Raj Bhawan, Patna)

has filed a counter affidavit to show that majority of the numbers of the

Assembly were supporting a particular political party, which was

presented before His Excellency the Governor of Bihar and based on

the same, His Excellency the Governor of Bihar granted them

opportunity to form the Government. At this stage, we are not inclined

to go into all these issues when as floor test has been conducted to

determine the majority.

The contention of the learned counsel for the petitioners is

that once the petitioners'' party was the single largest party in the

Assembly, they should have been invited to form the Government. In

this regard, he invites our attention to para 124 of the judgment in the

case of S.R. Bommai (supra). If we go through the observations made

in para 124, we find that it has been observed in the aforesaid judgment

that normally the party with the largest number of elected members

should be invited to form the Government and permitted to undertake a

floor test. However, if go through the principles laid down by the

Hon''ble Supreme Court in the case of S.R. Bommai (supra) itself, we

find that the Hon''ble Supreme Court in the aforesaid case has laid down

the principle that one of the main criteria approved by the Constitution

for determining the majority or resolving such issues is a floor test in

the Assembly. In this regard, the Hon''ble Supreme Court in paras 119

and 263 deals with the issue. In para 119, the Hon''ble Supreme Court

holds that it is necessary to stress that in all cases, where the support of

the Ministry is claimed to have been withdrawn by some legislators or

the issue as to who holds the majority is to be determined, the one and

the only constitutionally ordained forum for seeking openly and

objectively the claims and counter claims is by conducting a floor test.

In para 119, the principle has been crystallized by the Hon''ble Supreme

Court in the following manner:-

"119. In this connection, it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the constitutionally ordained forum for seeking openly and objectively the claims and counterclaims in that behalf. The assessment of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides. It is possible that on some rare occasions, the floor-test may be impossible, although it is difficult to envisage such situation. Even assuming that there arises one, it should be obligatory on the Governor in such circumstances, to state in writing, the reasons for not holding the floor-test. The High Court was, therefore, wrong in holding that the floor-test was neither compulsory nor obligatory or that it was not a prerequisite to sending the report to the President recommending action under Article 356(1). Since we have already referred to the recommendations of the Sarkaria Commission in this connection, it is not necessary to repeat them here." (Emphasis supplied)

Thereafter, the same principle has been reiterated in the

subsequent paragraphs, namely para 263 onwards.

In the present case, if we analyze the facts and

circumstances in the backdrop of the aforesaid legal requirement, we

find that after the issue in question went to His Excellency the Governor

of Bihar, the floor test in question has been conducted on 28th of July,

2017 and in the floor test, the party or group which had been invited to

form the Government by His Excellency the Governor of Bihar, has

proved its majority. That being so, we need not go into any further issue

in the matter, now, when, once the floor test within the assembly, which

is the sole test laid down under the Constitution and approved in the

case of S.R. Bommai (supra), has been conducted and the party/ group

staking its claim to form the Government, has proved its majority.

Once, this is the factual position, we need not go into any further issue,

except for referring to a decision, recently rendered by the Hon''ble

Supreme Court in the case of Chandrakant Kavlekar v. Union of

India through its Secretary and another [AIR 2107 SC 1435].

In the aforesaid case also, we find that an identical

situation, as is existing in the present case, was before the Hon''ble

Supreme Court. The party, which had the highest number of elected

members, filed the petition in the Supreme Court and it was their

complaint that without calling upon them to form the Government, the

party with a lesser majority was called to the form the Government and

the Hon''ble Supreme Court after evaluating identical situation held that

the best way to determine the issue is to conduct the floor test and

directed for conducting of a floor test. In the said case, i.e.

Chandrakant Kavlekar (supra), the floor test was conducted at the

instance of the Hon''ble Supreme Court, whereas, in the present cases

before us, it is an admitted position that after the Governor had called

the party/group to form the Government, they have proved their

majority in the floor of the Assembly, and, therefore, that being the

factual position, we see no reason to make any indulgence into the

matter as no materials are now before us to hold that the floor test is

vitiated for reason whatsoever and, in fact, this is not even the case of

the petitioners.

Accordingly, finding no ground, both the petitions stand

dismissed.