Smt. Sabitri Mitra vs The Hon''ble Speaker, West Bengal Legislative Assembly and Another

Jayanta Kumar Biswas, J.—The Court: The petitioner in this Article 226 petition dated January 6, 2011 is aggrieved by the order of the Speaker of the 14th Legislative Assembly of West Bengal dated January 5, 2011 (at p.41) declaring that having incurred disqualification for continuing as a member, she ceased to be a member of the House with immediate effect. On the basis of a petition dated October 4, 2010 (at p. 19) of the leader of the Congress Legislature Party of the House proceedings were initiated by the Speaker under para. 2(1)(a) of the Tenth Schedule to the Constitution of India read with Rule 6 of the Members of West Bengal Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986.

After giving the petitioner reasonable opportunity to present her case, the Speaker concluded that having voluntarily given up her membership of the Indian National Congress, the political party to which she belonged, she incurred disqualification for continuing as a member of the House. Accordingly, the Speaker made the impugned order declaring that she ceased to be a member of the House with immediate effect.

In the petition dated October 4, 2010 the leader of the legislature party stated as follows:

(ii) In order to confirm whether Smt. Sabitri Mitra, MLA had voluntarily given up her membership of the Indian National Congress and/or has joined any other political party, I, as the Leader of the Congress Legislature Party of the 14th West Bengal Legislative Assembly, had issued to her a letter dated 06.09.2010 in which Smt. Sabitri Mitra, MLA was asked to confirm whether she had voluntarily given up her membership of the Indian National Congress and/or had joined any other political party. She was given seven days time to reply. In the said letter dated 06.09.2010 Smt. Sabitri Mitra, MLA was specifically made aware that if no reply was received from her end within seven days from the receipt of the letter dated 06.09.2010, it would be presumed that she had voluntarily given up her membership of the Indian National Congress, the political party to which she belonged and was elected as an MLA of the said party.

Admittedly, in response to the letter of the leader of the legislature party dated September 6, 2010 the petitioner did not specifically assert that she had not voluntarily given up her membership of her original political party.

Since the petitioner did not respond to the letter dated September 6, 2010 asserting that she had not voluntarily given up her membership of her original political party, the leader of the legislature party submitted the petition requesting the Speaker as follows:

(v) In view of the above, I, as the Leader of the Congress Legislature Party, 14th West Bengal Legislative Assembly, pray to you to invoke Clause 2 of the 10th Schedule of the Constitution of India and declare Smt. Sabitri Mitra, MLA disqualified for being a Member of the House as she has voluntarily given up her membership of the Indian National Congress, the political party from which she was elected as a member of the 14th Legislative Assembly and has joined All India Trinamool Congress.

With the petition the leader of the legislature party supplied to the Speaker certain materials in support of his claim that the petitioner had voluntarily given up her membership of her original political party. The petition was verified at the foot by the leader of the legislature party.

Mr. Mitra, counsel for the petitioner, has argued only as follows. Since the petition dated October 4, 2010 was not supported by an affidavit of the leader of the legislature party, in view of the provisions of O.6. R. 15(4) of the Code of Civil Procedure, 1908 it could not confer jurisdiction on the Speaker to initiate the proceedings.

Citing the Supreme Court decision in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, Mr. Mitra has submitted that seeking judicial review of the order of the Speaker the petitioner is entitled to approach the High Court under art. 226. He is right in his submission.

It was clearly held in Kihota (para. 42) that the concept of statutory finality embodied in para. 6(1) of the Tenth Schedule does not detract from or abrogate judicial review under arts. 136, 226 and 227 "in so far as infirmities based on violations of constitutional mandates, mala fides, noncompliance with Rules of Natural Justice and perversity are concerned."

I am, therefore, of the view that this Article 226 petition seeking judicial review of the order of the Speaker is maintainable. I also note that Mr. Ghosh, counsel for the second respondent, the leader of the legislature party in question, has not questioned the maintainability of this petition on the grounds of the concept of finality embodied in para. 6(1) of the Tenth Schedule to the Constitution of India.

As noted hereinbefore Mr. Mitra has argued only one point that since the requirements of sub-rule (4) of Rule 15 of Order 6 of the Code of Civil Procedure, 1908 were not complied with, the petition, on the basis whereof the Speaker initiated the proceedings, being not maintainable, could not confer jurisdiction on the Speaker to make the impugned order.

The provisions of sub-rules (6) and (7) of rule 6 of the West Bengal Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 are as follows:

(6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings.

(7) Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

It is true that in view of the provisions of sub-rule (6) of Rule 6 of the Rules the petition of the leader of the legislature party dated October 4, 2010 was required to be verified in the manner as laid down in the Code of Civil Procedure, 1908 for verification of pleadings.

Rule 15 of O. 6 of the Code of Civil Procedure, 1908 provides as follows:

Verification of pleadings.--(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

In view of the provisions of sub-rule (6) of Rule 6 of the Rules and sub-rule (4) of Rule 15 of Order 6 of the Code it cannot be disputed that the petition dated October 4, 2010 was required to be supported by an affidavit of the leader of the legislature party who submitted it inviting the Speaker to initiate proceedings under para. 2(1)(a) of the Tenth Schedule to the Constitution of India. Admittedly, the affidavit was not submitted.

Hence the question is what was the effect of non-compliance with the provisions of sub-r. (4) of Rule 15 of Order 6 of the Code of Civil Procedure, 1908.

The complete answer to the question is available in the Supreme Court decision in Dr. Mahachandra Prasad Singh Vs. Hon. Chairman, Bihar Legislative Council and Others, , cited by Mr. Ghosh.

In that case a petition was filed under Article 32 of the Constitution of India questioning an order of the Chairman of the Bihar Legislative Council dated June 26, 2004 that in view of the provisions of para. 2(1)(a) of the Tenth Schedule to the Constitution Mahachandra incurred disqualification for being a member of the House. Before their Lordships of the Supreme Court it was argued that the disqualification proceedings were vitiated by the noncompliance with Rules (6) and (7) of the Bihar Legislative Council (Disqualification on Ground of Defection) Rules, 1994.

The argument made before their Lordships was recorded in para. 14 relevant part whereof is as follows:

Shri Mishra has submitted that as provided in sub-rule (6) of Rule 6 of the Rules, the petition filed by Shri Salman Rageev had to be signed and verified in the manner laid down in the CPC (for short "CPC") for verification of pleadings and, therefore, in terms of sub-rule (4) of Order 6 Rule 15 CPC an affidavit in support of the petition had to be filed. Since the requisite affidavit had not been filed, the requirement of the rule had not been complied with, and the petition was liable to be dismissed in view of sub-rule (2) of Rule 7 of the Rules. The Chairman of the House had, therefore, no authority or jurisdiction to initiate any proceedings or to hold that the petitioner had become disqualified for being a member of the House.

Their Lordships noted (in para. 16) that there is no provision in the Tenth Schedule that until a petition which is signed and verified in the manner as laid down in the Code of Civil Procedure, 1908 for verification of pleadings is made to the Chairman or the Speaker of the House he will not get jurisdiction to give a decision dealing with the question of disqualification of the member concerned.

Then their Lordships said (in para. 18) as follows:

There cannot be any dispute that sub-rules (1), (2) and (3) of Order 6 Rule 15 CPC were complied with. Learned counsel for the petitioner has, however, laid great emphasis on the fact that Shri Salman Rageev had not filed any affidavit in support of his petition and consequently the provisions of sub-rule (4) of Order 6 Rule 15 CPC which provides that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings were not complied with. For the reasons stated earlier, we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit as required by sub-rule (4) of Order 6 Rule 15 CPC, the petition would not be rendered invalid nor would the assumption of jurisdiction by the Chairman on its basis be adversely affected or rendered bad in any manner.

It is absolutely clear from the decision in Mahachandra that noncompliance with the provisions of sub-rule (4) of Rule 15 of Order 6 of the Code of Civil Procedure, 1908 does not incurably vitiate a petition invoking jurisdiction of the Speaker of a House under para. 2(1)(a) of the Tenth Schedule to the Constitution of India. Even a petition not satisfying the provisions of Order 6, Rule 15 of the Code is sufficient for the Speaker of a House to assume jurisdiction and initiate proceedings. I, therefore, do not find any merit in the only contention raised before me. It is also to be noted that neither before the Speaker, nor in this petition, nor before me over the course of argument it has been asserted that the petitioner had not voluntarily given up her membership of her original political party. I am, therefore, of the view that this petition is liable to be dismissed.

For these reasons, I dismiss the petition. No costs. Certified xerox.