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Judgment
M.M. Kumar, J.—This order shall dispose of a bunch of appeals* which have been preferred by the Speaker, Haryana Vidhan Sabha and the Members of the Legislative Assembly. However, the facts have been referred from LPA No. 366 of 2011.
The members of Legislative Assembly-respondent Nos. 2 to 6, namely, Sarvshri Satpal Sangwan, MLA Dadri Constituency; Vinod Bhayana, MLA Hansi Constituency; Narendra Singh, MLA Narnaul Constituency; Zile Ram Sharma, MLA Assandh Constituency; and Dharam Singh, MLA Samalkha Constituency, are facing proceedings before the Speaker in disqualification petitions filed against them. They successfully contested election to constitute 12th Haryana Legislative Assembly in September/October 2009 on the original party ticket of Haryana Janhit Congress (BL) [for brevity, ''HJC (BL)'']. A meeting of HJC (BL) was held which was presided over by its President-writ petitioner-respondent No. 1. Later on these five MLAs'' claimed to have merged with the Indian National Congress [for brevity, ''INC''] in terms of the provisions of paragraph 4 of the Tenth Schedule of the Constitution and moved an application before the Speaker. Along with the application they attached a copy of the minutes of the meeting dated 9.11.2009 of the Haryana Janhit Congress Legislative Party claiming that the legislators of HJC (BL) participated in that meeting. The minutes of the meeting attached with their application (P-3) would show that a meeting of only the legislators of the HJC (BL), who were elected to the 12th Haryana Legislative Assembly was held on 9.11.2009, who considered and decided merger of the original HJC (BL) Party with the INC Party. The Speaker did not issue any notice of this application to President of HJC(BL), who himself was an MLA and never participated in the so called meeting of the legislators of HJC(BL). On the basis of the said application, however, the Speaker, Haryana Vidhan Sabha, passed an order on 9.11.2009 (P-4), accepting merger of HJC (BL) Party with the INC Party with immediate effect. Shri Dharam Singh-respondent No. 6 applied for merger with the INC Party on the next day and the order by the Speaker to that effect has been passed on 10.11.2009 (P-7). The learned counsel for all the appellants have laid emphasis on the proceedings to show that it is not a case where delay is being caused by the Speaker and that in any event it is not a fit case for issuance of direction. Therefore, at appropriate place we shall sum up the circumstances and events which have taken place before the Speaker right from the date of presentation of merger application dated 9.11.2009.
Mr. Kuldeep Bishnoi, writ petitioner-respondent No. 1, who is the President of the HJC (BL), challenged both the orders dated 9.11.2009 (P-4) and 10.11.2009 (P-7) by filing CWP No. 14194 of 2010, relatable to the present set of Letters Patent Appeals, by setting up the plea that as per law there is no possibility of merger of the legislative party and merger can only be of the original political party. It was, therefore, urged that the Speaker was not competent to recognise them as there was no merger of HJC (BL) with the INC. In support of the aforesaid submission the writ petitioner-respondent No. 1 placed reliance on the language of paragraph 4 of the Tenth Schedule of the Constitution which uses the expression ''original political party'' for the purposes of merger with another political party. The writ petitioner-respondent No. 1 also placed reliance on paragraphs 3, 4 and 5 of the judgment rendered in the case of Ram Bilas Sharma v. Speaker, Haryana Vidhan Sabha, 1997 (3) PLR 318, in which it is laid down that in order to seek disqualification under paragraph 4 of the Tenth Schedule of the Constitution, it has to be shown that merger is of political party and not merely of the members of the legislative assembly, who were set up as candidate for election as a member by the merging political party. Reliance was also placed on para 72 of the judgment rendered in the case of Jagjit Singh Vs. State of Haryana and Others, , which also talks of split in the original political party as distinguished from the split in Legislature Party. It has been held that if a member is set up as a candidate in the election by a national party it would be no answer to say that the national level party has no concern to decide whether there is a split or not. The other ground of challenge is that no notice of merger was issued to the President of HJC (BL), therefore, the principles of natural justice have been wantonly disregarded. In that regard the writ petitioner-respondent No. 1 placed reliance on para 40 of the Full Bench judgment of this Court rendered in the case of Parkash Singh Badal and Others Vs. Union of India and Others, . It would be appropriate to read para 40, which is in the following terms:-
Even if it may be accepted for the sake of argument that the filing of the application, Annexure P-1, before the Speaker gave rise to a question as to the disqualification of the petitioners and the Speaker was seized of the matter, the order, Annexure P-3, passed by him would be nonest and ineffective so far as respondent No. 7 is concerned. The principle of law is well established that an order passed in a given proceedings would not bind any person affected thereby who was neither party to those proceedings nor given an opportunity of being heard before passing the same. It was on the same principle that a Five Judges Bench of this Court in State of Haryana v. Vinod Kumar, 1986 (1) 89 Pun L.R 222 held an order of the Collector Agrarian to be ineffective and nonest against the persons who were affected thereby but were neither party to the proceedings nor afforded any opportunity of being heard. The Fifty-Second Amendment has been enacted to prevent defections which necessarily means that it has been enacted primarily for the benefit of the political parties whose members constitute the House, though broadly speaking any citizen can invoke its provisions. The voluntary giving up of the membership of any political party would affect such a party and so would any order passed under para 6. Consequently an order passed under para 6 affecting adversely any political party would be ineffective and nonest against it if no notice is issued to it for opportunity of being heard afforded. By making a claim under para 3, the petitioners are deemed to have voluntarily given up the membership of the Shiromani Akali Dal on whose tickets they were elected. So, they were liable to be declared as disqualified from being members of the House. If their defence was to be accepted under para 3 and decision, as envisaged under para 6, to be made, the principles of natural justice would require a notice to be served on the President of the political party concerned. It has already been discussed above in detail that the Speaker would be a Tribunal while acting under para 6 and the proceedings before him of quasi-judicial nature. Any order passed by him under that paragraph without issuing notice or affording any opportunity of hearing to the interested party, therefore, would be nonest and ineffective against such a party. As before passing the order, Annexure P-3, neither the political party nor any other person interested in the matter was heard, it would bind none and in that sense it can be said to be an order void ab initio. On both the grounds, therefore, the Speaker was justified in ignoring the order, Annexure P-3. .......
The learned Single Judge after noticing paras 4 and 6 of the Tenth Schedule, Articles 122, 212 of the Constitution as well as clause (b) of sub-rule (3) of Rule 7 the Haryana Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 (for brevity ''the Defection Rules'') of the Defection Rules, reached the conclusion that an order passed by the Speaker under paragraph 4 of the Tenth Schedule is necessarily required to be adjudicated by the Speaker under paragraph 6. The learned Single Judge placed reliance on para 40 of the Full Bench judgment in Parkash Singh Badal''s case (supra) and paras 70 and 72 of the judgment of Hon''ble the Supreme Court rendered in the case of Jagjit Singh (supra). The learned Single Judge also noticed Rule 7(b)(3) of the Defection Rules and then rejected the argument of the writ petitioner-respondent No. 1. The view of the learned Single Judge is discernible from the following para of the judgment, which reads thus:
In my opinion, while passing an order under Paragraph 4, the Speaker is not enjoined to act as purely a judicial officer and to this extent the observations of the Hon''ble Supreme Court in the para extracted above, which laid down that an order of recognizing split/merger is not binding on a person who is not a party to it, would militate against the arguments of learned counsel for the petitioner. It must be noticed that both these cases arose from petitions under Article 191 and Paragraph 6 of the Schedule (supra). Thus, in my considered opinion, it can be safely held that an order under Paragraph 4 would necessarily be subject to an adjudication under Paragraph 6. The challenge to the orders, Annexures P-4 and P-7, is, thus, rejected.
From the perusal of the aforesaid para it is clear that the learned Single Judge preferred to adopt the course of leaving adjudication in respect of orders dated 9.11.2009 and 10.11.2009 (P-4 and P-7) to the wisdom of the Speaker alongwith the disqualification petition.
However, the learned Single Judge proceeded to decide the issue whether during the pendency of the disqualification petition filed by the writ petitioner-respondent No. 1 under Article 191 read with Tenth Schedule of the Constitution and the Defection Rules, any direction could be issued asking the Speaker to decide such petition in a time bound manner before final decision by him. Answering the aforesaid question in the affirmative, learned Single Judge felt guided by the answer to the query given by the learned counsel for one of the appellant that there was no absolute immunity given to the Speaker and it would extend to a case where a Speaker does not enter into adjudication for the entire term of the Vidhan Sabha. The counsel had accepted that in an extreme situation interjection of Court would not be impermissible. Therefore, assuming that inherently there is power to interject the learned Single Judge issued directions at the stage of pendency of disqualification petition before the Speaker for disposal of the disqualification petition within a period of four months from the date of receipt of a certified copy of that order. The learned Single Judge found that adjudication of disqualification petition is a quasi-judicial function and it cannot remain immune from judicial review of the High Courts under Article 226 of the Constitution. In the process, the reasoning adopted by the learned Single Judge for exercise of such power to issue direction emerges from the discussion on two basic principles, namely, - (i) justice must not only be done but it must be seen to have been done; and (ii) no person howsoever high can be above law. The learned Single Judge also went on to observe that in some cases even procedural facet can defeat a substantive right. Quoting paragraphs 95 and 97 from the judgment rendered by the Constitution Bench of Hon''ble the Supreme Court in the case of Shri Kihota Hollohon Vs. Mr. Zachilhu and others, , the learned Single Judge went on to observe as under:-
A third corollary also needs to be noticed, viz that in some cases, even a procedural facet can defeat a substantive right. The best illustration is, of-course, the rule of audi alterm partem which is essentially a procedural aspect but of such fundamental importance that itself embodies a basic substantive right. It cannot also be forgotten that the present government initially earned legitimacy only after the addition of respondents No.3 to 7 to its ranks. Had they not joined up, the present government could not have been formed. For this reason, an adjudication on these petitions under Article 191 of the Constitution cannot be limited only to law but to the essential concept of democracy. If it is found that respondents No.3 to 7 have incurred disqualification, the very existence of the government would be in jeopardy. Thus, to argue that the Hon''ble Supreme Court has barred meddling by Courts cannot be said to be in such absolute terms as is canvassed by learned counsel for the respondents. A Court cannot also close its eyes to the provisions of clause (b)(3) of rule 7 of the Rules, which have been framed by respondent No.1 himself, and as per which time to file reply has been fixed at one week. Which is not to say that respondent No.1 cannot extend the time in any circumstance but only to bear in mind the kind of time frame envisaged under the Rules. It is now beyond the scope of any controversy that respondent No.1 exercises an essential judicial function while deciding a petition under Paragraph 6 of the Tenth Schedule of the Constitution. In fact, in para 95 of Kihoto Hollohan''s case (supra), the Hon''ble Supreme Court held as follows:-
In the present case, the power to decide disputed disqualification under Paragraph 6(1) is pre-eminently of a judicial complexion.
As regards the plea of protection under Articles 122 and 212 of the Constitution of India, the said argument was specifically repelled by the Hon''ble Supreme Court in Kihoto Hollohan''s case (supra) in the following terms :-
That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.
The learned Single Judge then noticed that in the case of Ravi S. Naik v. Union of India, 1994 (Suppl) 2 SCC 641 , the disqualification petition was decided within one month; in Jagjit Singh''s case (supra) within 17 days and in the case of Mayawati Vs. Markandeya Chand and Others, , it was decided within 4 months.
After noticing that numerous adjournments and opportunities had been given by the Speaker to respondent Nos. 2 to 6 for filing of reply, the learned Single Judge concluded that the substantive right of the writ petitioner-respondent to have his lis decided is being defeated by the procedural facets of extension of time to file reply by the appellants. Accordingly, it was found to be a fit case where judicial intervention was justified even during the pendency of the disqualification petition filed by the writ petitioner-respondent No. 1 and the direction was issued to decide the same within a period of four months.
Proceeding at Letters Patent Appeal Stage
At this stage it would be necessary to notice the proceedings which have taken place after filing of the instant appeals. When the appeals came up for consideration on 1.3.2011, the Bench recorded the statement of the learned Solicitor General of India, which was made after obtaining instructions that the Deputy Speaker (who was the then incumbent of the office of the Speaker) was to make every endeavour to dispose of the disqualification petition in question as expeditiously as possible. It was made clear by the Bench in the order dated 1.3.2011 that notwithstanding the issuance of notice, the Deputy Speaker was given the liberty to decide the disqualification petition in terms of the statement made by the learned Solicitor General.
On 5.4.2011, the matter was adjourned on account of ill health of the Solicitor General. But the Bench reiterated the observations made in the order dated 1.3.2011. It also noticed that Mr. Harmohinder Singh Chatha-appellant No. 2 was not continuing as Speaker. Thereafter the matter came up for hearing on 19.4.2011 when another adjournment was sought on the ground that the learned Solicitor General was unwell. The adjournment was opposed by the learned counsel for the writ petitioner-respondent No. 1 by urging that on 1.3.2011 there was an undertaking given to, and recorded by the Court that every endeavour was to be made to dispose of the disqualification petition as expeditiously as possible by the Speaker and that the undertaking had been violated because only formal proceedings were being conducted. However, the request was accepted and the matter was ordered to be listed for hearing on 29.4.2011 while reiterating the orders dated 1.3.2011 and 5.4.2011. On 29.4.2011, the following detailed order was passed:-
Mr. Gopal Subramanium, learned Solicitor General of India, appearing on behalf of the Speaker, Haryana Vidhan Sabha has stated that the present Speaker has taken over the office of Speaker on 4.3.2011. He further states that the disqualification petitions which are pending before him would be disposed of as expeditiously as possible and that the Speaker would also draw a time table after concurring (conferring?) with the parties and their counsel.
Mr. Satya Pal Jain, learned Senior Advocate, for respondent No. 1-petitioner has expressed an apprehension that on 1.3.2011 also such a statement was made on behalf of the Deputy Speaker, who was the then incumbent of the office of the Speaker, but the aforesaid statement has not been honoured. He has also cited the order of Hon''ble the Supreme Court in the case of Chattar Singh Chauhan v. Virender Pal & Ors. (Special Leave to Appeal (C) No. 18093 of 1997, decided on 4.5.1998) and argued that time bound directions were given after statements were made by learned counsel for the rival parties to adduce evidence by filing of affidavits. Mr. Jain has also stated on behalf of the petitioner in CWP No. 14194 of 2010, who has filed disqualification petition, that he will conclude his evidence on the first opportunity given to him. However, Mr. Harbhagwan Singh, learned Senior Advocate and Mr. Puneet Bali, Advocate have stated that it is not possible to make any such committed statement with regard to the time, which might be consumed for adducing evidence before the Speaker.
Be that as it may, we feel that once the learned Solicitor General of India has made a statement on behalf of the Speaker that the disqualification petitions would be decided as expeditiously as possible, we do not entertain any doubt that every endeavour would be made by the Speaker to dispose of the disqualification petitions at the earliest possible date. However, if there is any extra ordinary delay to the disliking of respondent No. 1-writ petitioner then he can always move an appropriate application in these proceedings. With the aforesaid hope and trust, we adjourn the further hearing to 2.6.2011.
The interim order shall continue.
A photocopy of this order be placed on the files of connected cases.
Let a copy of this order under the signatures of the Bench Secretary be given to learned counsel for the parties.
A perusal of the aforesaid order would show that a categorical assurance was given to the Court for disposal of the disqualification petition as expeditiously as possible and the Speaker was to draw a time able after conferring with the parties and their counsel. The aforesaid assurance was accepted because it was coming from the learned Solicitor General of India. However, after the aforesaid date the Solicitor General discontinued to appear in this matter.
When the matter came up for consideration on 2.6.2011, learned counsel for the appellant-Speaker made the following statement:-
Mr. Atma Ram further states that the Speaker would comply with the statement made on his behalf on 29.04.2011 by the Solicitor General of India with regard to drawing a time table after conferring with the parties and/or their counsel. Mr. Atma Ram further states that in order to dispose of the disqualification petitions expeditiously, Hon''ble the Speaker shall fix at least four dates of hearing in one month and keeping that in view the time table shall also be fixed.
In order to wriggle out of the aforesaid statement, CM No. 2957 of 2011 was filed by the appellant-Speaker asserting that no statement was ever made for fixing the disqualification petition on four dates of hearing in one month as recorded in the order dated 2.6.2011. Notice of the application was issued to the counsel for the writ petitioner-respondent No. 1. The application was, however, dismissed on 6.7.2011 by passing the following order:-
We have carefully perused the averments made in the application. Referring to the averment made in para 3, Mr. Rajiv Atma Ram, learned Senior counsel has stated that no statement was made to the effect that "Hon''ble Speaker shall fix at least 4 dates of hearing in one month.
However, Mr. S.P. Jain, learned Senior counsel for the non-applicant respondent has pointed out that the order was dictated in the open Court and there was no opportunity for the Court to make a mistake in that regard.
Having heard the learned counsel for the parties we are of the considered view that the instant application does not deserve to be accepted. The order was dictated in the open Court and we have also asked the Judgment Writer to read out to us the dictation taken on 02.06.2011 from his Shorthand Note Book. It is consistent with the order. It is unfortunate that such an application has been filed. We do not say anything further.
Accordingly, we do not find any merit in the application and the same is dismissed.
(emphasis added)
Submissions on behalf of Speaker and other appellants
Mr. Rajiv Atma Ram, learned Senior counsel appearing for the Speaker has made following submissions:
(i) The power of judicial review cannot be exercised by the High Court at the interlocutory stage and during the pendency of disqualification petition therefore, there is no cause of action for the petitioner-respondent No. 1 to approach this Court and the learned Single Judge has committed a grave error in law by issuing time bound direction. In support of his submission, learned Senior counsel has placed reliance on the para 111 of the judgment of Hon''ble the Supreme Court in Kihoto Hollohan''s case (supra) and emphasized that no time limit could be fixed having regard to the Constitutional intendment and the status of the repository of the adjudicatory power. Learned Senior counsel has also placed reliance on para 9 of the judgment of Hon''ble the Supreme Court rendered in Ravi S. Naik''s case (supra) to buttress his stand and pointed out that para 111 in Kihoto Hollohan''s case (supra) has been followed. Learned senior counsel has also placed reliance on a Single Bench judgment of Rajasthan High Court rendered in the case of Jaswant Singh Gurjar v. The Hon''ble Speaker Rajasthan Vidhan Sabha (SB CWP No. 4991 of 2010, decided on 03.09.2010) and argued that the power of judicial review would not cover any stage prior to a final decision of the Speaker.
(ii) The power of judicial review can be exercised only when a final order is passed. The power of judicial review is limited to the ground of ultra vires, mala fide or colourable exercise of power as has been held in para 10 and 11 of the judgment of Hon''ble the Supreme Court rendered in Jagjit Singh''s case (supra), which again is based on the observations made by the Constitution Bench of Hon''ble the Supreme Court in Kihoto Hollohan''s case (supra). Reliance has also been placed on para 8 and 8(i) of the judgment of Hon''ble the Supreme Court rendered in Dr. Mahchandra Prasad Singh''s case (supra) to argue that the decision of Hon''ble the Supreme Court could be challenged on the ground, namely, violation of constitutional mandate, ultra vires, non-compliance with the rules of natural justice and perversity; and that mere an irregularity can have no bearing on the decision. According to learned counsel, the allegations of mala fide have been given up and no challenge has been made to that part of the order passed by the learned Single Judge by filing appeal by the writ petitioner-respondent. As a necessary corollary the decision of the learned Single Judge in respect of order dated 09.11.2009 (P-4) and 10.11.2009 (P-7) passed by the appellant-Speaker has attained finality.
(iii) An order passed by the Speaker under paragraph 6 of the 10th Schedule would necessarily be subject to adjudication under paragraph 6. The judgment in P.S. Badal''s case (supra) and Jagjit Singh''s case (supra) have arisen from the petitions filed under Article 191 which dealt with disqualification for membership on various grounds including the one incurred under 10th Schedule as specifically provided by Article 191(2) of the Constitution.
(iv) The learned Single Judge has committed an error in law by placing reliance on the judgment rendered in Mayawati''s case (supra) because there was no final decision rendered by Hon''ble the Supreme Court. According to learned counsel, the judgment in Mayawati''s case (supra) as reported is mere a reference order, which ultimately snow balled into a declaration that the question was rendered academic because the matter was referred to the Constitution Bench which did not decide the issue as the term of the assembly had come to an end. Therefore, it cannot be regarded as a precedent in view of the opinion expressed by Hon''ble the Supreme Court in para 21 and 22 of the judgment rendered in the case of State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha, . Reliance has also been placed on paras 12, 13 and 14 of a Division Bench judgment of this Court rendered in the case of the Plant Protection Officer, Haryana v. Bajinder Singh, 2002 (1) SCT.
(v) In any case, on facts it could not be concluded that there is design or calculated delay on the part of the Speaker, the procedural delay in order to provide opportunity of hearing, cannot be helped. In that regard, reference has been made to the dates of events to argue that no decision could be taken hurriedly violating the principles of natural justice, as has been held by Hon''ble the Supreme Court in the case of Balchandra L. Jarkiholi and Others Vs. B.S. Yeddyurappa and Others, .
(vi) There are factual error in the impugned judgment of the learned Single Judge, inasmuch as the Government is stated to have earned the legitimacy only after addition of respondent Nos. 2 to 6 and that the present Government could not have been formed in their absence. It has also been pointed out that the learned Single Judge further committed an error on facts by recording that six opportunities were afforded to respondent Nos. 2 to 6 to file reply over a period of 8 1/2 months by the Speaker which led to the conclusion that the cause of the writ petitioner stood postponed indefinitely.
Mr. Harbhagawan Singh, learned Senior counsel appearing for the appellants in LPA No. 367 and 368 of 2011 has made the following submissions:
(i) The direction issued by the learned Single Judge restricting the Speaker to dispose of the disqualification petition in a time bound manner would prejudice the rights of the appellants as they would not be able to project their point of view before the Speaker. The Court should not issue any such direction particularly in view of para 111 of the judgment in Kihoto Hollohan''s case (supra)as the principles of granting adequate opportunities to the appellant would be marginalized.
(ii) The argument advanced on behalf of the Speaker have been adopted by the appellants, insofar as such arguments are available to them. A meeting of HJC (B.L) party was held on 08.11.2009, where it was decided by overwhelming majority of the primary members of the party to merge the same with the INC. Therefore, both the parties stood merged on 08.11.2009. Thereafter, in a separate meeting on that day, five members of HJC (BL) party, the decision taken by the workers/ primary members of the party was endorsed. It was also decided by five MLAs elected on the ticket of HJC (BL) to endorse the decision regarding merger of the two parties. Accordingly, the decision regarding merger with the INC stood finalized and this matter has to be proved by adducing evidence before the Speaker.
Mr. M.L. Sarin, learned Senior counsel appearing for the appellant in LPA No. 369 of 2011 has made following submissions:
(i) The Court would be well advised to keep in view the privileges of the Speaker as provided by Articles 122 and 212 of the Constitution. The arguments appears to be that there is restriction imposed on the Court and the validity of any proceeding in the Legislature of the State or Parliament are not to be called in question on the ground of any allegation of irregularity of procedure. Placing reliance on para 111 of the judgment of Constitution Bench rendered in Kihoto Hollohan''s case (supra), leaned Senior counsel has submitted that it is only in cases where there are grave, immediate and irreversible repercussions and consequence, which may be covered by exception for issuance of direction at interlocutory stage, not otherwise.
(ii) Learned counsel has attacked the impugned judgment by urging that the Speaker enjoys high status and great respect in parliamentary tradition. He is regarded embodiment of impartiality and therefore, no direction should be issued by one Constitutional Authority to another Constitutional Authority because such a direction may not be complied with. Learned counsel has placed reliance on the judgment of Hon''ble the Supreme Court in Jagjit Singh''s case (supra) and argued that adequate opportunities of adducing evidence before the Speaker should be ensured. No direction, causing prejudice to adduce evidence and prove his case by the appellant before the Speaker, should be issued.
Submission on behalf of writ-petitioner-respondent No. 1
Mr. S.P. Jain, learned senior counsel appearing for the writ-petitioner respondent No.1 has made the following submissions:
(i) Speaker is not deliberately proceeding in accordance with Defection Rules. Our specific attention has been drawn to Rule 7(3) (b) of the Defection Rule which provides seven days'' notice and grant of further time on the ground of sufficient cause. Reliance has also been placed on Order 8, Rule 1 of the CPC, which provides thirty days'' time initially and extendable to further period of 90 days which is maximum. Recounting the event from the dates of election to the date of various stages of hearing before the Speaker, it has been submitted that no doubt is left that the Speaker wishes to drag the matter till the expiry of term of the present Legislative Assembly. It has been pointed out that undertaking given to this Court for framing of time table and fixing four dates on 02.06.2011 has not been adhered to and an attempt was made to wriggle out of the same.
(ii) A perusal of letters dated 09.11.2009 (P-3) addressed by the four members of the Legislative Assembly to speaker do not even whisper any split in the original political party, namely Haryana Janhit Party. The proceeding of the meeting held on 09.11.2009 signed by four MLAs, namely, S/ Shri Satpal, M.L.A, Vinod Bhayana, MLA, Narender Singh, MLA and Zile Ram Chochra MLA, would only show that the meeting of the Legislators of HJC (BL) was held 09.11.2009 to decide the merger of the original HJC (BL) with INC Party. It was only attended by the Legislators and not by the members of the original party as defined in para 1(c) and the expression used in para 4(1) and (2) of the Tenth Schedule. In that regard, reliance has been placed on para 9 of a Full Bench judgment rendered in Ram Bilas Sharma''s case (supra) to argue that once the private respondent Nos. 2 to 6 had accepted that there was no split in the original political party which set them up as its candidates to contest the election to the Legislature Party then disqualification must follow. The orders dated 09.11.2009 (P-4) and 10.11.2009 (P-7) have been passed without issuing any notice to the writ petitioner-respondent No.1 and are not binding on him. In that regard learned counsel has placed reliance on various observations made by Full Bench judgment of this Court in Parkash Singh Badal''s case.
(iii) The directions issued by the learned Single Judge are absolutely justified granting four months'' time particularly when Additional Solicitor General, Mr. Mohan Jain had requested for maximum one year''s time.
(iv) The Courts are fully competent to issue direction even at the stage of pendency of the disqualification petition and there is apparent exception carved out in unnumbered para 5 of para 111 in Kihoto Hollohan''s case (supra). In that regard reliance has been placed on para 59 of the judgment rendered in the case of In the matter of: Under Article 143 of the Constitution of India, and argued that even in a proper case, jurisdiction under Article 226 of the Constitution can be exercised when the question of privilege of the House is involved. The jurisdiction of the High Court cannot be questioned by the House for want of competence. To buttress his stand, leaned counsel has also placed reliance on a Division Bench judgment of Kerala High Court rendered in the case of Haridasan Palayil Vs. The Speaker, Kerala Legislative Assembly, and argued that no privilege would be attached if there are accusations levelled against a member of the State Legislature that he has not taken oath in the form prescribed because then jurisdiction of the Court under Article 226 of the Constitution would still be available. Reliance has also been placed on the observations made in para 12 and 13 of the Full Bench judgment of Kerala High Court rendered in the case of State of Kerala Vs. R. Sudarsan Babu and Others, .
(v) The Court can interfere even at the interlocutory state as is evident from the view expressed by learned Single Judge of Madras High Court in the judgment rendered in the case of S. Ramchandran, MLA v. Hon''ble Speaker of the Tamil Nadu, AIR 1994 Mad 332. In that regard our attention was drawn to para 12 wherein the judgment of Hon''ble the Supreme Court rendered in the presidential reference in Privileges and Immunities State Legislature In re, Under Article 143''s case (supra) has been relied upon. Reliance has also been placed on the judgment of the Full Bench in R. Sudarsan Babu''s case (supra).
(vi) The primary duty of the Speaker has been highlighted by placing reliance on para 30 of the judgment of a Division Bench of Bombay High Court rendered in the case of Narsingrao Gurunath Patil and Others Vs. Arun Gujarathi, Speaker and Others, .
(vii) Another forceful submission is that this Court should adopt the same course which was adopted by Hon''ble the Supreme Court in the case of Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others, and the Court can itself decide the disqualification petition. On the basis of observations made in para 42 to 43 of the judgment in Rajender Singh Rana''s case (supra), learned counsel submitted that the matter should be decided by this Court instead of leaving it to the discretion of Speaker. The aforesaid submission has been advanced on the basis of the fact that there is no evidence of merger of original political party with INC on the date of declaring merger vide orders dated 09.11.2009 and 10.11.2009 (P-4 and P-7). The further submission of Sh. Jain is that the private respondents were allotted separate seats whereas the writ petitioner-respondent No.1 continued to sit as MLA of HJC (BL). If the party has been merged then there was no question of any presence of HJC (BL) in the Assembly and the MLA still represented the party, which is registered with Election Commission of India as a National Party.
(viii) The Speaker when sits as an adjudicator does not decide an adversial litigation as is laid down by Hon''ble the Supreme Court in paras 7 and 16 of the judgment in Dr. Mahchandra Prasad Singh''s case (supra). It also does not decide any lis. The observations made in para 16 clearly show that it is not an adversial litigation where a party may be required to adduce evidence as in the civil suits.
(ix) Reliance has also been placed on para 22, 23, 32 and 34 of the judgment of Hon''ble the Supreme Court rendered in the case of Kedar Shashikant Deshpande Vs. Bhor Municipal Council and Others etc. etc., to argue that there is no lis between the person moving disqualification petition and even who is alleged to have incurred disqualification petition. In order to avoid any further delay, the dispute was not remitted back by Hon''ble High Court and it had decided to pronounce the judgment itself because all relevant materials was before the Court. The aforesaid view was upheld by Hon''ble the Supreme Court in Kedar Sashikant Despande''s case (supra) by placing reliance on the judgment rendered in Rajender Singh Rana''s case (supra).
(x) In para 86 of the judgment rendered in Jagjit Singh''s case (supra), it has been noticed that only going by some of events of the recent past, certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal.
(xi) The Speaker before the learned Single Judge has submitted to the direction of the Court as is evident from his written statement (Page 161).
(xii) The judgment in Mayawati''s case (supra) is a mandate and is binding on the Courts. There is no escape from that judgment.
Discussion and Conclusion
On the directions issued by this Court, the record concerning this case has been produced. We have minutely perused the record and pleadings of the parties because both sides have emphasised on facts for their respective submissions. As per the record and the pleadings of the parties following list of material dates and events including proceedings which have taken place before the Speaker right from the date of presentation of merger application is as under:-
23.10.2009
First meeting of HJC (BL) held. All six MLAs participated. Mr. KuldeepBishnoi, President, HJC (BL) writ petitioner-respondent No.1 was elected Leader of the legislative HJC (BL) in VidhanSabha (P-1). Till this date there is no whisper of any merger by anyone.
28.10.2009
Respondent Nos. 2 to 6 took oath as MLA of HJC (BL). In VidhanSabha they occupied seats, which were allotted to HJC (BL).
8.11.2009
Mr. SatpalSangwan-respondent No. 2 was suspended. Intimation sent to the Speaker and the Chief Election Commissioner.
9.11.2009
Respondent Nos. 2 to 5 voluntarily gave up their membership of the original political party HJC (BL) and joined INC. They wrote a letter to the Speaker claiming that the legislators have held a meeting and they have decided to merge with INC (P-3).
5.6.2011
The Speaker preponed the hearing keeping in view the order dated 2.6.2011 passed by the High Court. However the hearing was adjourned on account of sudden demise of Ch. BhajanLal, father of Mr. KuldeepBishnoi till 20.6.2011. Further date was to be intimated in due course.
21.6.2011
The next date of hearing for further cross-examination of Mr. Bishnoi was fixed as 24.6.2011 at 3.00 p.m. in the Chamber of the Speaker at HaryanaVidhanSabha, Chandigarh.
24.6.2011
Lengthy cross-examination of Mr. KuldeepBishnoi was conducted but the same could not be concluded on this date also. Accordingly, the case was adjourned to 7.7.2011 at 2:00 p.m. It has been specifically mentioned in the order that from
30.6.2011 to 5.7.2011, the Speaker would be out of Country.
7.7.2011
The evidence of Mr. KuldeepBishnoi was concluded. The Speaker was to proceed on five nations� tour from 15.7.2011, therefore, the next date of hearing was fixed as 5.8.2011 for recording of the evidence of the respondents-witnesses. It has also been noticed that nine more petitions were preferred by Sher Singh Barshami and others against the respondents on the same question of law in which the hearing was fixed for 10.8.2011. One more petition under the 10th Schedule of the Constitution was also filed by Sher Singh Barshami against seven respondents who were elected MLAs as independents. In all, there were 15 petitions, which were pending before the Speaker.
1.8.2011
Mr. VinodBhayana filed an application for placing on record the list of 16 defence witnesses and their affidavits.
5.8.2011
Considering the large number of witnesses 72 in number the Speaker fixed the petitions for 10.8.2011 for recording their evidence. The order also notices that some applications were filed by Ch. Harbhagwan Singh, learned Senior counsel for the respondents on 4.8.2011, 5.8.2011 and
27.5.2011 (however no such application is available on the file of petition No.1 of 2009), which were also to be taken up on 10.8.2011. No further adjournment with regard to reply and argument on the said application was to be granted.
5.8.2011
Mr. KuldeepBishnoi and his counsel was informed about the order dated 5.8.2011 passed by the Speaker and he was asked to file his reply to Petition Nos. 6 to 14 of 2010, which were filed by SarvshriAshok Kumar Arora, Sher Singh Barshami and Ajay Singh Chautala against SarvshriVinodBhayana, Narender Singh, SatpalSangwan and Zile Ram Sharma by the next date of hearing i.e. 10.8.2011.
10.8.2011
Perusal of the order shows that an application u/s 10 and 151 CPC for stay was filed in petition Nos. 6 to 14 of 2010 on 27.5.2011. However, the same was not pressed and the same were dismissed as withdrawn. The other applications were for clubbing of Petition Nos. 6 to 14 with petition Nos. 1 to 5 of 2009. It was also prayed therein that evidence in both set of petition be led simultaneously to avoid contradictory facts and judgment. Notice of the applications was given and replies were filed.
With the consent of counsel for the parties, all the petitions were clubbed together. Counsel appearing in petition Nos. 6 to 14 made a statement that he does not want to lead any evidence and would rely the evidence already led so far. Similar statement was made by Mr. Sher Singh Barshami and Mr. Ashok Kumar Arora, MLAs. The evidence of the petitioners in Petition Nos. 6 to 14 of 2010 was closed.
11.8.2011
The Speaker passed an order that petition Nos. 1 to 14 were fixed for hearing/ recording of the statement of respondents on 25.8.2011, but keeping in view the ensuing session of HaryanaVidhanSabha, the same were adjourned till the business of the Monsoon Session is over.
11.8.2011
The parties were informed about the order dated 11.8.2011 passed by the Speaker that the petitions have been adjourned till the business of the Monsoon Sessions of VidhanSabha is over.
5.9.2011
The parties were informed about the date of hearing fixed by the Speaker as 15.9.2011 for cross examination of the witnesses of the respondents.
12.9.2011
The Speaker passed an order changing the date of hearing from 15.9.2011 to 16.9.2011 because on
15.9.2011 he was to attend the Regional Seminar for Asian Parliaments as �Observer� in New Delhi.
13.9.2011
Another order was passed changing the date of hearing from 16.9.2011 to 29.9.2011 because the Speaker was to remain busy in attending the Regional Seminar for Asian Parliaments as �Observer� in New Delhi.
29.9.2011
Statement of Mr. Narender Singh, MLA was recorded. He was called for remaining evidence for 12.12.2011 at 3:30 p.m. as his cross-examination was done only by Mr. Satya Pal Jain, Sr. Advocate.
29.9.2011
Mr. Inder Pal Goyat, counsel for the petitioners in petition Nos. 6 to 14, filed application for separation of these petitions from petition Nos. 1 to 5.
12.10.2011
Statement of Mr. OmParkashYadav, Advocate, was recorded and he was called for remaining evidence for 20.10.2011 at 3:00 p.m.
13.10.2011
Notice(s) were sent to three respondent witnesses (in Petition No. 2 of 2009 � KuldeepBishnoi v. Narender Singh), namely, SarvshriPurushotam, Vinod Kumar and Manoj Kumar for recording their evidence on 20.10.2011 at 3.00 p.m.
20.10.2011
The Speaker dismissed the application filed by Mr. Inder Pal Goyat for separation of petition Nos. 6 to 14.
20.10.2011
Statement of Mr. VinodBhayana, was recorded and his cross-examination was done by Mr. Satya Pal Jain, Sr. Advocate. In the order passed on this date, it has been recorded that two witnesses have been examined and two more witnesses, namely, PurushottamYadav and Vinod Sharma are present. Their affidavits were already filed. The case was initially adjourned for 4.11.2011, but at the insistence of Mr. Satya Pal Jain, Sr. Advocate, the date was changed to 9.11.2011.
2.11.2011
An application under sub-rule (2) of Rule 6 of the Haryana Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 read with Article 191 and Tenth Schedule of the Constitution was filed on behalf of Mr. VinodBhayana seeking dismissal of the petition filed by Mr. KuldeepBishnoi on the ground that he is no more a legislator in Haryana and, thus, no locus standi to maintain the petition. In all 5 applications were filed.
9.11.2011
Due to non-appearance of counsel for Mr. KuldeepBishnoi the evidence/cross examination of respondents witnesses could not be recorded and
the hearing was adjourned to 30.11.2011 at 2.00 p.m.
9.11.2011
The Speaker fixed the date for consideration and arguments of application filed under sub Rule(2) of Rule 6 as 30.11.2011 at 2:00 p.m. The main petitions could not be taken up for hearing due to non-appearance of Mr. Satya Pal Jain, Sr. Advocate upto 3:45 p.m. The main petitions were also adjourned for 30.11.2011.
11.11.2011
Information about the order dated 9.11.2011 was sent to Mr. KuldeepBishnoi. He was also informed that on the next date of hearing i.e. 30.11.2011, the applications filed under Rule 6(2) of the 1986 Rules would also be heard.
A perusal of the proceedings before the appellant Speaker shows that from 22.12.2009 to 10.2.2010, a copy of the disqualification petition was not served on Mr. Vinod Bhayana-respondent No. 3 and thereafter he moved an application for adjourning the matter sine die and to fix a date for filing a written statement after 8 weeks. To intimate the date of 6 weeks again letters were written by the Vidhan Sabha Secretariat on more than three occasion. On 7.4.2010, Mr. Bhayana prayed for 12 weeks time to file detailed reply. On his request, the matter was adjourned to 18.6.2010. Such has been the state of affair of proceedings before the appellant Speaker. The whole procedure lacks bona fide and the appellant Speaker is taking the proceedings casually by adjourning the same on a small excuse.
There are frivolous applications which indicate that the appellant Speaker has treated the proceedings as a trial before the Civil Court. For example, on 20.1.2011, respondent No. 3-Mr. Vinod Bhayana filed an application under Order VI Rules 2 and 16 CPC before the Speaker with a prayer for striking out certain paras of the disqualification petition from the pleadings alleging that those paras were scandalous and frivolous and there are number of dates given on that account, as is evident from the perusal of the list of dates and events, which was eventually dismissed on 27.4.2011. Even with regard to framing of issues, few dates were given as also for cross-examination a list of 16 witnesses was furnished by respondent No. 3 and there are total 72 witnesses.
The aforesaid events need to be examined in the light of the nature of functions, the status of the office of the Speaker and necessity of speedy disposal of disqualification petitions. It has been put beyond any doubt that the Speaker while deciding the disqualification petitions under Article 191 read with Tenth Schedule, acts as a Tribunal. In that regard reliance may be placed on paras 98, 99 and 100 of the judgment of the Constitution Bench rendered in the case of Kihoto Hollohan (supra). The relevant extracts of the aforementioned paras reads thus:
But then is the Speaker or the Chairman acting under Paragraph 6(1) a Tribunal? "All tribunals are not courts, though all Courts are Tribunals". The word "Courts" is used to designate those Tribunals which are set up in an organised State for the Administration of Justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. ......
Where there is a lis - an affirmation by one party and denial by another -- and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court. .......
By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal.
Secondly if it is Tribunal then it has limited power as conferred by the provisions creating such a Tribunal. Therefore, its orders are amenable to jurisdiction of this Court under Articles 226/227 and that of Hon''ble Supreme Court under Article 136 of the Constitution. In that regard it would be profitable to refer to para 111 of the Constitution Bench rendered in the case of Kihoto Hollohan (supra), which reads as under:
In the result, we hold on contentions (E) and (F):
That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman as a judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-ompliance with Rules of Natural Justice and perversity, are concerned.
That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in In the matter of: Under Article 143 of the Constitution of India, ] to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words ''be deemed to be proceedings in Parliament'' or, ''proceedings in the Legislature of a State'' confines the scope of the fiction accordingly.
The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/ Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.
(emphasis added)
A perusal of the aforesaid paras makes it abundantly clear that ordinarily judicial review is not to cover any stage prior to the decision to be delivered by the Speaker. The aforesaid observations have been made keeping in view the constitutional intendment and the status of the repository of the adjudicatory power. Despite the aforesaid principle propounded by their Lordships'' of the Constitution Bench, an exception has been carved out for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence. We are of the view that the case in hand belongs to the category of cases where interlocutory interference concerning disqualifications has become imperative.
The aforesaid exception carved out by their Lordships'' of Hon''ble the Supreme Court needs to be further examined and appreciated keeping in view the observations made in para 86 of the recent judgment rendered by Hon''ble the Supreme Court in Jagjit Singh''s case (supra). This case had also arisen from the State of Haryana, which is regarded as the lead State for the phrase ''Gaya Ram and Aaya Ram''. It would be profitable to read those observations, which are as under:
Undoubtedly, in our constitutional scheme, the Speaker enjoys a pivotal position. The position of the Speaker is and has been held by people of outstanding ability and impartiality. Without meaning any disrespect for any particular Speaker in the country, but only going by some of events of the recent past, certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal. It has been urged that if not checked, it may ultimately affect the high office of the Speaker. Our attention has been drawn to the recommendations made by the National Commission to review the working of the Constitution recommending that the power to decide on the question as to disqualification on ground of defection should vest in the Election Commission instead of the Speaker of the House concerned. Our attention has also been drawn to the views of number of other experts, committees/commissioner to the effect that the power of disqualification as a result of defection need to be exercised in accordance with the opinion of the Election Commission as in the case of decision on question as to disqualification of members provided for in Article 103 and 194(2) of the Constitution (See Anti-Defection Law and Parliamentary Privileges by Dr. Subhash C. Kashyap, M.P. Jain''s Indian Constitutional Law, 5th Edn., Constitutional Law of India, 2nd Edn. by T.K. Tope, Reviewing the Constitution edited by Dr. Subhash C. Kashyap & Ors., First V.M. Tarkunde Memorial Lecture on "Indian Democracy Reality or Myth?" delivered by Shri Soli J. Sorabjee).
(emphasis added)
In Jagjit Singh''s case (supra), Hon''ble the Supreme Court also reiterated the view that the Speaker while exercising power to disqualify members, acts as a Tribunal. The order passed by the Speaker could be challenged on the ground of ultra-vires or mala fide or having been made in colourable exercise of power based on extraneous and irrelevant considerations. The order would, however, be a nullity if the principles of natural justice are violated. Their Lordships'' have further observed that the proceedings under the Tenth Schedule are not comparable to either a trial in a Court of law or departmental proceeding for inflicting major punishment in a disciplinary action against an employee. It has also been held that the proceedings under Tenth Schedule before the Speaker are not adversarial in nature. The Speaker is required only to ascertain relevant facts as to whether a member is found to have done any act cover by para 2(1), (2) or (3) and the Speaker would have to make a decision to that effect. It has further been held in para 16 of the judgment rendered in the case of Dr. Mahachandra Prasad Singh Vs. Hon. Chairman, Bihar Legislative Council and Others, , that the rules like the Disqualification Rules are procedural in character, which are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. The rules cannot make provision which may have the effect of curtailing the content and scope of the substantive provision. Para 16 of the judgment answers many questions which the appellant(s) have sought to raise before us and the same reads as under:-
Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said Rule and Sub-rule (6) of the same Rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings. The heading of Rule 7 is "Procedure". Sub-rule (1) of this Rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said Rule and Sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These rules have been framed by the Chairman in exercise of power conferred by paragraph 8 of the Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rule being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in the CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as the duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision, viz. the Tenth Schedule. The object of Rule 6 which requires that every petition shall be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under Sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires.
(emphasis added)
A perusal of the aforesaid para from the judgment of Hon''ble the Supreme Court would show that the Rules of Procedure framed under the Tenth Schedule are directory and the binding object of such Rules is to avoid frivolous petitions, which make false allegation in order to cause harassment to the elected representatives. If the Rules are given strict interpretation, the way the appellant-Speaker is proceding, then such Rules would be rendered ultra vires. The second principle which has emerged from the aforesaid para is that disqualification petition is not an adversarial kind of litigation where the petitioner is required to adduce evidence because even if he withdraws the petition, it would not make any difference as the appellant-Speaker would still be under obligation to carry out the mandate of the Constitution imposed by the Tenth Schedule. There is no lis between the parties to the petition.
The same view has been reiterated in a recent judgment of Hon''ble the Supreme Court rendered in the case of Kedar Shashikant Deshpande (supra) on which reliance has been placed by Mr. Jain, learned counsel for the writ petitioner-respondent. It has been observed that the proceedings before the Speaker is not an adversarial kind of litigation and even if a petition is sought to be withdrawn it would not make any difference as a duty is cast on the Speaker to carry out the mandatory provisions of the Constitution. The provisions of the Tenth Schedule of the Constitution read with Article 102(2) and 191(2) operate thereon and the only purpose of the petition is to bring the relevant information about disqualification to the notice of the Chairman.
We are also inclined to agree with the contention raised by Mr. Jain that in order to avoid superfluous and artificial delay, the Court is competent to decide the disqualification petition particularly in cases where no evidence is required to be adduced. The aforesaid course is open for the Court to be adopted as has been held by Hon''ble the Supreme Court in para 32 of the judgment in Kedar Shashikant Deshpande''s case (supra) and in paras 33 and 34 of the judgment in Rajender Singh Rana''s case (supra).
When the aforesaid principles are applied to the facts of the present cases it becomes evident that the Speaker is treating the disqualification petitions as adversarial litigation. A casual look on the proceedings before the appellant-Speaker would show the superfluous and unnecessary dilatory mechanism has been introduced by him. It is evident from order dated 25.5.2011 passed by the appellant-Speaker, which reads as under:-
At the time of fixing this case for evidence the Petitioner''s Counsel Shri Satya Pal Jain sought just one opportunity and to lead only one witness i.e. Mr. Kuldeep Bishnoi, saying that he does not want any more witness. When the application for witness alongwith the affidavit was filed before me, I observed that in the application it has been mentioned ''at this stage'' only one witness is to be examined i.e. Sh Kuldeep Singh Bishnoi, MLA. I have sought clarification from Mr. Satya Pal Jain, Senior Counsel, who says that he does not want to produce any more witnesses but if need be he will move an application for permission to bring in more evidence after the evidence has been led by the respondents. Although, there is no provision in the CPC, if Mr. Jain, Counsel for the Petitioner moves such an application at any stage after the evidence of the Respondents led, such application will be considered by me as and when the same is moved. It has also been pointed out at this stage that in the present petition my predecessor has not framed any issued arising out of the pleadings of the parties. I am surprised why such a discovery should be made at this stage. I have asked both the contending parties i.e. Petitioner and Respondents whether they want issues to be framed before proceedings with the cross examination of Shri Kuldeep Bishnoi, Petitioner. The Petitioner''s Counsel Shri Satya Pal Jain says that he does not want to press for framing any issue. Moreover, he said that neither he has any objection if no issue is framed nor does he has any objection if the issue is framed. Ch. Harbhagwan Singh, Learned Counsel for the Respondents has made an oral request that to avoid in future any illegality, irregularity and technicality, it is necessary in the aforesaid case that the issues be framed so that the evidence does not go directionless. Ch. Harbhagwan Singh, Learned Senior Counsel for the Respondents pointed out that only one issue made out whether the Respondents have defected in the facts and circumstances of the case and no other issue arises out of the pleadings of the parties and nor it has been pressed. The onus to prove the issue will be on the petitioner. It was the fundamental duty of my office keeping in view the jurisdiction and provisions of the law that an issue should have been framed although the same was not framed. However, to facilitate good law and proceedings as per law, I agree with the contention of Ch. Harbhagwan Singh, Senior Learned Counsel of the Respondents and order the framing of issue, the only issue arising out of the pleadings of the parties by my separate order. I will frame the issue as mentioned above, let the evidence go ahead. First of all Shri Kuldeep Bishnoi who has filed an affidavit and the sole witness at this stage as per his Counsel has to take oath. Let oath be administered by Shri Kuldeep Bishnoi, MLA, Petitioner.
Likewise, the cross-examination of the writ petitioner-respondent No. 1 by the counsel for the appellant-MLA, who are facing disqualification petitions, also makes interesting reading. In order to understand the working of mind of the appellant-Speaker it would be necessary at the risk of adding bulk to this judgment to set out the cross examination of the writ petition-respondent No. 1, which is annexed as ANNEXURE ''A''. A perusal of the cross-examination would show the superfluous nature of the questions and dilatory mechanism adopted by the appellant-Speaker. It may not be possible for this Court to say that why such procedure is being adopted by the appellant-Speaker. But it is patent that the very object of deciding the disqualification petitions is being defeated by adopting such a dilatory mechanism. This Court is making these observations for the reason that the appellant-Speaker is himself a law graduate and he would understand the constitutional position of the Speaker. The procedure adopted, in fact, defies ignorance and cannot be countenanced. It appears to be an attempt to while away time so that the Assembly may complete its term as more than two years period is already over. This is patently against the assurance which was given to this Court by Mr. Gopal Subramanium, the then Solicitor General of India, who after some time stopped appearing.
We further find from the list of dates and events summed up in the preceding paras that there is lack of application of mind by the appellant Speaker as to whether there is merger of the original political party i.e. HJC (BL) with the INC party. There is categorical evidence on record to show on the basis of the documents produced by the appellant MLAs themselves that there has never been any merger of original political party i.e. HJC (BL) with the INC party. It becomes evident from the documents on record. The minutes of the meeting of HJC (BL) legislature party held on 9.11.2009 have been attached with the application filed by respondent Nos. 2 to 6, which reads as under:
A meeting of the legislators of Haryana Janhit Congress (BL) Party elected to the 12th Haryana Legislature Assembly was held on 09.11.2009 to consider and decide merger of original Haryana Janhit Congress (BL) Party with Indian National Congress Party in terms of para 4 of the tenth Schedule of the Constitution of India. In this meeting, the requisite number of the members of the Haryana Janhit Congress (BL) Legislature Party namely S/Shri Satpal, M.L.A. Dadri-56, Vinod Bhayana, M.L.A., Hansi-50, Narender Singh, M.LO.A., Narnaul-70 and Zile Ram Chochra, M.L.A., Assandh-23, have agreed to merge Haryana Janhit Congress (BL) Party with Indian National Congress Party. It has also been decided to make an appropriate application to the Hon''ble Speaker, Haryana Vidhan Sabha for recognizing the undersigned members as the Members of Indian National Congress Party in the Haryana Vidhan Sabha.
According to the minutes of the meeting the legislatures of HJC (BL) party alone met on 9.11.2009 to consider and decide the merger of the original Haryana Janhit Congress (BL) with the Indian National Congress Party in terms of para 4 of the Tenth Schedule of the Constitution. The writ petitioner-respondent No. 1 has also highlighted that the President of the party who himself is a member of Assembly did not call the meeting nor there is any election of the office bearer of the HJC (BL). According to him it cannot be regarded as a meeting of the original HJC (BL). It was a meeting of some of MLAs only who belonged to that party. The requisite number of members of the legislature party, namely, respondent Nos. 3 to 6 had agreed to merge HJC (BL) party with the Indian National Congress Party. A decision to that effect was taken to move appropriate application to the Speaker, Haryana Vidhan Sabha for recognising them as members of the INC Party in the Vidhan Sabha. The aforesaid application was moved and then accepted on the same day by order dated 9.11.2009 (P-4). Likewise, respondent No. 7 also filed similar application on 10.11.2009 and a similar order was passed on 10.11.2009 itself.
A bare perusal of para 4 of the Tenth Schedule would show that a member of a House is not to be disqualified on the ground of defection in case of merger. In other words, where a ''original political party'' merges with another political party then such members are not to be disqualified. The expression ''original political party'' has been defined in para 1(c) of the Tenth Schedule to mean in relation to a member of a House that political party to which he belongs for the purposes of voluntary giving up the membership of such political party or such a member votes or abstains from voting in the House contrary to the direction issued by the political party to which he belongs (See sub-para (1) of Para 2). The sub-para (1) of para 2 of the Tenth Schedule comes in operation and prima facie such a member incurs disqualification. The explanation appended to sub-para (1) of paragraph (2) shows that an elected member of a House is to be deemed to belong to the political party by which he was set up as a candidate for election as such member. Accordingly, it has to be concluded that the merger has to be of the whole original political party with the merging party. It is subjected to further rider postulated by para 4(2) of the Tenth Schedule, which provides that merger in terms of sub-para (1) of para 4 of the original political party concerning a member of a House shall be deemed to have taken place if not less than 2/3rd of the members of the legislative party concerned have agreed to such merger. The writ petitioner-respondent No. 1 has claimed that there might be decision by 5 members of the legislative party, which are appellants before this Court but there was no merger of the original political party i.e. HJC (BL) with the INC party. It has further been submitted that ''HJC (BL)'' as an original political party should have merged with ''INC''. The facts on record would further show that ''HJC (BL)'' continued to have its separate seat in the Vidhan Sabha and the original political party continues to exist. The claim in nut shell is that the orders dated 9.11.2009 and 10.11.2009 (P-4 and P-7) do not answer the requirement of para 4 of the Tenth Schedule as there is no evidence of merger of the original political party, namely, ''HJC (BL)'' with ''INC'' either on 9.11.2009 or 10.11.2009 at that stage. In support of the aforesaid view reliance has been placed on the observations made in paras 3, 4 and 5 of the Full Bench judgment of this Court rendered in the case of Ram Bilas Sharma (supra), which reads as under:-
It is an admitted case that the petitioner and the second respondent were elected to Haryana Vidhan Sabha having been set up by the original political party BJP. On 17.7.1991 the second respondent has written to the Speaker of the Legislative Assembly that as a result of the split in the Legislature party of the political party (BJP) another Legislature party in the name BJP(K) has come into being. He further averred that on account of ideological differences he has decided to form new Legislature party in the name and style of BJP(K). The letter written by the second respondent to the Speaker was reproduced in the impugned order Annexure P.7. It is nowhere stated therein that there was any split in the original political party either at the national level or in the Haryana State unit of BJP. A reading of the letter clearly shows that because of the ideological differences he (second respondent) has decided to form a new legislature party in the name and style of BJP (K). In our view such a contention cannot be accepted in view of the clear provisions contained in paragraph 3 of the 10th Schedule to the Constitution of India.
Paragraph 1(b) defines Legislature party as a group consisting of the members of the House for the time being belonging to that political party in accordance with the provisions of Paragraph 2, 3 and 4. According to paragraph 1(c) original political party in relation to a member of a House is the political party to which he belongs for the purpose of Sub paragraph 1 of paragraph 2. Paragraph 2(a) makes a member of the House disqualified if he has voluntarily given up his membership of such political party. Paragraph 3 is in the nature of exception to paragraph 3. It reads as follows:
Where a member of a House makes a claim that he and any other members of his Legislature party constitute the group representing a faction which has arisen as a result of the split in his original political party and such group consists of not less than one-third of the members of such Legislature party,-
a) he shall not be disqualified under sub-paragraph (1) of paragraph 2"
Thus, in order to attract paragraph 3 there should be a split in the original political party and one-third members of the Legislature party of that political party constitutes the group representing the faction which splits away from the original political party, then only those members of that faction do not incur disqualification under sub-paragraph 1 of paragraph 2 of the 10th Schedule. In the case on hand it is not the claim of the second respondent that there was a split of his original political party either at the national level or at the state level. In the letter written by him to the Speaker on 17.7.1991 he only made a claim that due to ideological differences he wanted to form a separate Legislature party. The main and essential ingredient for attracting paragraph 3 namely split in the original political party has not been pleaded or claimed in his letter written by the second respondent to the Speaker. In the absence of a split in the original political party, no member of that political party can claim to form a separate Legislature party. A legislature party is not a separate entity. It is only a wing within the original political party. We are, therefore, of the opinion that the second respondent cannot claim that he formed a separate Legislature party and that he did not incur disqualification because he alone consists more than one-third of the Legislature party of the original political party BJP. We are, therefore, of the opinion that paragraph 3 of the 10th Schedule is not attracted to the case of the second respondent and, therefore, the second respondent has given up his membership of the original political party namely BJP which set him up as a candidate to contest the election to the Legislative Assembly. We are, therefore, of the opinion that the order of the Speaker dated 10th April, 1992 cannot be sustained and the second respondent incurred disqualification from being a member of the Assembly. We accordingly quash the order of the Speaker of the Haryana Legislative Assembly and declare the second respondent as disqualified for being a member of Haryana Legislative Assembly. The disqualification of the second respondent will come into effect from the date of the order of the Speaker i.e. 10th April, 1992.
The writ petition is accordingly allowed and the second respondent is declared disqualified to be a member of Haryana Vidhan Sabha with effect from 10th April, 1992 and the necessary consequences will follow.
However, there will be no order as to costs.
(emphasis added)
The view that the merger has to be in the original political party, has also been supported by the judgment of Hon''ble the Supreme in Jagjit Singh''s case (supra). In Jagjit Singh''s case (supra), a Full Bench judgment of this Court rendered in the case of Madan Mohan Mittal, MLA Vs. The Speaker, Punjab Vidhan Sabha and Others, , has been overruled. In that case it was laid down that the Parliament intended to treat the State unit of a political party as a separate entity for the purposes of determining whether there is any disqualification of a member of the House of that State Legislature. In that case the Full Bench was considering the legality of the order passed by the Deputy Speaker of the Punjab Legislative Assembly whereby he declined to declare some members of the Legislative Assembly of Bhartiya Janta Party as disqualified under paragraph 2 of the Tenth Schedule. Those members of the Legislative Assembly had joined the Indian National Congress and a complaint was lodged to the Speaker to disqualify those members urging that there was no split in the party. The Deputy Speaker had taken the view by treating the BJP as a State unit and the Full Bench of this Court held that the Parliament intended to treat the State unit of a political party as a separate entity for the purposes of determining whether there is any disqualification of the members of that State Legislature. Overruling the aforesaid view, Hon''ble the Supreme Court observed in paras 72, 73 and 74 as under:-
.......In the case of split, one-third members of State Legislature belonging to that political party must form a group to make the split effective within the State Legislature but it does not lead to the conclusion that the Parliament intended to treat State Unit of a political party as a separate entity for the purposes of the benefit of paragraph 3. Paragraph 1(c) defining original political party and explanation as given in paragraph 2(1) have already been noticed hereinbefore. It is clear from a bare reading thereof that the elected member belongs to the political party by which he is set up as a candidate for election as such member. From the plain language of these provisions, it cannot be held that for the purposes of the split, it is the State Legislature party in which split is to be seen. If a member is set up by a National Party, it would be no answer to say that events at National level have no concern to decide whether there is a split or not. In case a member is put up by a National Political party, it is split in that party which is relevant consideration and not a split of that political party at the State level.
We may also refer to the decision in G. Viswanathan Vs. The Hon''ble Speaker, Tamil Nadu Legislative Assembly, Madras and another, , the observation whereof clearly show that the relevant factor is of the political party by which a member is set up as a candidate for election as such member. ........
The Punjab case is not correctly decided.
It is, thus, evident that there was no claim in the application regarding split in the original HJC (BL) party. The writ petitioner-respondent No. 1 has claimed that the record speaks for itself beyond any doubt. It was also submitted that the appellant-Speaker could not have permited adducing of evidence after the clinching evidence has come on record on the basis of the letters written by the members of the Legislative Assembly i.e. the appellant MLAs, claiming merger of the legislative party as against the merger of original HJC (BL) party with the INC party. There is, thus, prima facie case made out that no merger of HJC (BL) has in fact taken place.
There is inherent duty cast on the Speaker to issue notice to the President of the original Political Party. No notice of such a nature was ever issued. Both the orders dated 9.11.2009 and 10.11.2009 are again prima facie against the basic tenants of the principles of natural justice as well and relief to the writ petitioner-respondent No. 1 may be available by virtue of Order XLI Rule 33 C.P.C.
We are further of the view that there is unnecessary delay being caused in finalising the proceedings by the Speaker. A perusal of the proceedings before the Letters Patent Bench, as noticed in the preceding paras, would show that the then Solicitor General made statement before the Bench on 1.3.2011 that every endeavour was to be made to dispose of disqualification petitions as expeditiously as possible. The Bench had clarified that the Speaker was to proceed to decide the disqualification petitions in terms of the statement made by the learned Solicitor General. Again on 29.4.2011, this Court had passed a detailed order regarding its feeling that once the learned Solicitor General had made a statement on behalf of the Speaker that disqualification petitions would be decided as expeditiously as possible then there was no reason to entertain any doubt that every endeavour would be made by the Speaker to dispose of the disqualification petitions at the earliest possible date. Despite the categorical assurance given to the Court for disposal of the disqualification petitions and to draw a time table after conferring with the parties to the petitions and their counsel nothing substantial was done. On 2.6.2011, again the statement made on 29.4.2011 by the learned Solicitor General was repeated and assurance was given with regard to drawing the time-table and to fix at least 4 dates of hearing in one month. Thereafter, an effort was made to wriggle out of the aforesaid statement by filing an application, as noticed in the preceding paragraph 12 of this judgment. After notice of the application, the same was dismissed on 6.11.2011 with accompanying observations. The Speaker has not complied with the undertaking given to, and directions issued by this Court till date. The Speaker has not drawn the time table fixing the dates of hearing nor any effort has been made to fix the case on four dates in every month.
Therefore, we are of the considered view that the Speaker has not been able to proceed with the disqualification petitions as expeditiously as possible and in accordance with the directions issued by this Court. The disqualification petitions were filed on 9.12.2009 against respondent Nos. 2 to 6 and a period of two years has been consumed. We have recorded the views of Hon''ble the Supreme Court and this Court, for the Speaker to follow in such proceedings. The law against defection was enacted to save sanctity of democratic institution whereas in the present case basic object of that law appears to have been lost.
In view of the aforesaid discussion, the appeals are dismissed. However, we accept the contention of Mr. Jain, learned senior counsel for the writ petitioner-respondent No. 1 and exercising jurisdiction under Order XLI Rule 33 C.P.C. grant limited relief of suspending the operation of orders dated 9.11.2009 and 10.11.2009 (P-4 and P-7) passed by the Speaker. Consequently, the appellant-MLAs, namely, Sarvshri Satpal Sangwan, Vinod Bhayana, Narendra Singh, Zile Ram Sharma and Dharam Singh would not be deemed to be members of the INC party nor that of HJC (BL) till the decision of disqualification petitions. However, they would continue to be regarded as un-attached members of the Legislative Assembly for the purposes of attending the session and for no other purpose. They shall also not hold any office till the decision of disqualification petitions. The Speaker shall allot them a separate set of seats in the House. However, their status shall be subject to the final decision of the Speaker in disqualification petitions, which are pending before him. The Speaker is directed again to comply with the undertaking given to this Court and proceed with the disqualification petitions in accordance with law and decide the same on or before 30.4.2012. We make it clear that the Speaker may proceed in accordance with law and observations made in this order shall not be construed as findings on merit with regard to disqualification petitions.
The appeals stand disposed of in the above terms. The record be handed back to Mr. Sanjiv Bansal, Advocate, forthwith by the Court Master. A photocopy of this order be placed on the file of connected appeals.