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2001 DIGILAW 144 (HP)

KASHMIR SINGH v. MANSA RAM

2001-07-16

KAMLESH SHARMA, LOKESHWAR SINGH PANTA

body2001
JUDGMENT Ms. Kamlesh Sharma, J.—This order will dispose of the preliminary objection raised by respondent No. 3 the Speaker, Himachal Pradesh Vidhan Sabha that in view of Article 212 and Para 6 of the Tenth Schedule of the Constitution he is not subject to the jurisdiction of this Court, therefore, notice issued to him be withdrawn. However, it is stated in the short reply-affidavit containing legal submissions that he is ready to produce the entire record of the case for the perusal of this Court. 2. Brief facts of the case are that the petitioner, who is Congress MLA, Ghumarwin Legislative Assembly Constituency, has filed this writ petition challenging the order dated 26.7.1999 (Annexure PK) passed by respondent No. 3, the Speaker whereby he has dismissed his petition seeking disqualification of respondents 1 and 2, the Members of Legislative Assembly from Karsog and Balh legislative assembly constituencies respectively. The grounds for challenge, inter alia, are that the impugned order suffers from violation of principle of natural justice, as no opportunity was afforded to the petitioner to prove his case and his petition was decided merely on the pleadings, that is, reply-affidavits of respondents 1 and 2, his rejoinder and also material collected behind his back. 3. The writ petition for the first time was listed for admission on 25.4.2000 and notice to show cause was issued to the respondents, and Shri Vipan Negi, learned Counsel accepted notice on behalf of respondent No. 3. Thereafter short reply-affidavit containing the legal submissions was filed by respondent No. 3. One of the legal submissions raised in the reply-affidavit is that he has passed the impugned order as Speaker, Himachal Pradesh Vidhan Sabha by holding proceedings under Para 6 of the Tenth Schedule of the Constitution which are deemed to be proceedings in the Legislature of a State within the meaning of Article 212 of the Constitution and are not subject to the jurisdiction of any Court, as provided under Article 212(2) of the Constitution. It is also alleged that the decision of the Speaker in the matter of disqualification or otherwise of Members of Legislative Constituencies under Tenth Schedule is final and its validity cannot be called in question by filing writ petition. It is also alleged that the decision of the Speaker in the matter of disqualification or otherwise of Members of Legislative Constituencies under Tenth Schedule is final and its validity cannot be called in question by filing writ petition. In his rejoinder-affidavit the petitioner has asserted that the impugned order is subject to judicial review and there is nothing wrong in impleading the Speaker as party respondent and giving notice to him. 4. Before we consider the respective contentions raised by learned Counsel for the parties, a reference to para 6 of Tenth Schedule and Article 212 of the Constitution of India is necessary. Para 6 of the Tenth Schedule of the Constitution is:— "6. Decision on questions as to disqualification on ground of defection.— (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such house and his decision shall be final : Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212/ And Article 212 of the Constitution is :— "212. Courts not to inquire into proceedings of the Legislature.—(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No Officer or Member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." 5. (2) No Officer or Member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." 5. The question that the Speaker in relation to the exercise of powers under Tenth Schedule shall not be subject to the jurisdiction of any Court in view of paragraph 6(2) of the Tenth Schedule, which attracts immunity under Article 212 of the Constitution, came for consideration before the Constitution Bench of the Supreme Court in Kihoto Hollohan v. Zachillhu and others, 1992 Supp (2) SCC 651. The Constitution Bench also considered the effect of paragraph 6(1) of the Tenth Schedule which imparts a constitutional finality to the decision of the Supreme Court and that such concept of finality bars examination of the matter by the Courts. The answer given by the Constitution Bench in paragraph 111 is as under:— "111. 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 is 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 insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned. That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts art immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case, (1965) 1 SCR 413, 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 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." 6. In nushell the Constitution Bench has held that the Speaker while passing an order in exercise of his powers under Para 6(1) of the Tenth Schedule functions as a Tribunal adjudicating the rights and obligations of the parties under Tenth Schedule and the order passed by him is subject to judicial review under Articles 32, 136, 226 and 227 of the Constitution on the limited grounds of violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. (Please see paragraph 43 of the judgment in Ravi S. Naik v. Union of India and others, AIR 1994 SC 1558). 7. So far the case in hand is concerned, the petitioner has been able to prima facie make out a case for judicial review by making allegations that the impugned order of the Speaker suffers from violation of principle of natural justice, as no opportunity was afforded to the petitioner to prove his case and his petition was decided after receiving reply-affidavits of respondents 1 and 2, his rejoinder and also material collected behind his back. In this view of the matter, the Speaker has been impleaded as a Tribunal, whose order is being challenged in the writ petition. Had he not been impleaded as party respondent, the writ petition would have been incompetent as in a writ of certiorari the authority of the Tribunal whose order is assailed is a necessary party besides those in whose favour the said order has been passed. Had he not been impleaded as party respondent, the writ petition would have been incompetent as in a writ of certiorari the authority of the Tribunal whose order is assailed is a necessary party besides those in whose favour the said order has been passed. Otherwise also if the Authority or the Tribunal, whose order is before the Court for judicial review is not made party, the Court cannot call for the records from it which may be necessary for deciding the writ petition. It is correct that as a matter of practice in a writ of certiorari notice is not issued to the Tribunal for the reason that by deciding the matter before it, it has performed its statutory or constitutional duty in an objective manner and its record would speak for itself but in a given case if there are allegations subjective to the Tribunal and the Court considers it necessary to call for its reply for deciding the matter before it, it can give notice to the Tribunal or Authority. The subjective allegations may pertain to mala fide, non-compliance with Rules of Natural Justice and perversity, which may not be capable of verification from the records. 8. In State of Kerala v. R. Sudarsan Babu and others, AIR 1984 Kerala 1, the Full Bench of Kerala High Court has observed in paragraph 31:— "We have to indicate here that the issue of notice to the Speaker is only an intimation to the Speaker of the proceedings pending in this Court and of the date fixed for considering the respective cases of the parties. It would not require the Speaker or for that matter the 3rd respondent, the Secretary, to appear in the Court nor would it even compel them to file a return unless they dispute the petitioners case. If it be the duty of the Court to adjudicate, that duty cannot be performed except by bringing the institution of the proceedings to the notice of respondents 2 and 3 and giving them an opportunity to have their say in the matter.” (Emphasis supplied) 9. So far the case in hand is concerned, there are no subjective allegatibns of mala fides and perversity which call for the reply of respondent No. 3, the Speaker. So far the case in hand is concerned, there are no subjective allegatibns of mala fides and perversity which call for the reply of respondent No. 3, the Speaker. The allegations of violation of Principles of Natural Justice that no opportunity was given to the petitioner to prove his case and the material collected behind his back was used for passing the impugned order can be verified from the records which may be summoned at the time of final hearing of the writ petition. The other allegation that respondent No. 3, the Speaker, has misapplied any of the provisions of the Tenth Schedule to the facts and circumstances on record can also be verified and does not call for the reply of respondent No. 3, the Speaker. In this view of the matter, in our opinion there is nothing wrong in giving notice to respondent No. 3, the Speaker, that the order passed by him is being assailed in these proceedings and also to give him an opportunity to have his say in the matter, if he so likes. 10. During the course of arguments learned Counsel for the petitioner has referred to the judgment of the Supreme Court in Mayawati v. Markandeya Chand and others, AIR 1998 SC 3340, wherein two learned Judges of the Supreme Court took a contrary view in a matter in which the order of the Speaker of the Assembly was impugned whereby he had dismissed the complaint that 12 M.L.As., who defected, had incurred disqualification for membership of the Assembly. The learned Presiding Judge of the Bench, who was the then Chief Justice of India, referred the matter to the Constitution Bench for decision with the following observations:— "In Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, the majority, in paragraph 109, has summed up the nature of the function exercised by the Speaker/Chairman under Paragraph 6(1) to be that of a Tribunal and the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 to be confining to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. The question however as to whether a Member of the House has become subject to disqualification must arise for decision under paragraph 6(1) of the Tenth Schedule only on its being referred for decision of the Speaker/Chairman and not on his own, whose decision shall be final. The defence against disqualification incurred on ground of defection under Paragraph 2 is separately provided in Paragraph 3 to say that such disqualification is not to apply to a case of split. Is not the cognition of the Speaker/ Chairman of the occurrence of split not administrative in nature, unconnected with decision taking on disqualification, or is it an adjunct thereto? Kihoto Hollohan is silent on this aspect. If the act of cognising the time of such split is the administrative function of the Speaker/Chairman, the scope of judicial review of the said administrative act would, to my mind, be qualitatively different than what it is when testing his quasi-judicial order as a Tribunal. Kihoto Hollohan, as is evident from Paragraph 111 of the report, apparently confines to decision making by the Speaker/Chairman in paragraph 6(1) on reference of the question of disqualification, inviting his decision, and leaves his role under paragraph 3 untouched. These determinations of importance, in my view, are necessary to be made before the matter can be examined as to the perversity or otherwise of the Speakers decision, obligating him at a point of time to record categorically when the split took place thereby pinning the time of such split. I opine therefore that the matter be referred to the Constitution Bench for decision." 11. Therefore, in view of the reference made to the Constitution Bench in Mayawati v. Markandeya Chand and others (supra) it will be in the interest of justice and fair play to take up this matter for final hearing after the final decision of the Supreme Court in Mayawati v. Markandeya Chand and others. Learned Counsel for the parties have also no objection to this part of the order, who may file an application for listing the writ petition for final hearing after the decision of the Supreme Court. Petition disposed of. -