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2008 DIGILAW 1468 (ALL)

MOHD. SHAHID AKHLAW v. UNION OF INDIA

2008-07-31

SHASHI KANT GUPTA, YATINDRA SINGH

body2008
JUDGMENT By the Court.—The main question involved in the writ petition is ‘whether the petitioner has voluntarily given up membership of Bahujan Samaj Party’ (BSP), the party on whose ticket he was elected as Member of Parliament (MP) and is disqualified under paragraph 2(1)(a) of the Xth Schedule of the Constitution of India.. The facts 2. The general elections for the 14th Lok Sabha were held in the year 2004. The petitioner contested this election from Nauchandi, Meerut constituency on the ticket of BSP. He was successful and was declared MP from this constituency. 3. During his tenure as an MP, a meeting of Sri Mulayam Singh Yadav, the then Chief Minister of the State of U.P., was held in Meerut on 16.12.2006. In this meeting the petitioner was also present on dias. He made some statements in his public speech. Sri Rajesh Verma-respondent No. 5, another BSP, MP filed a petition before the Speaker on 2.4.2007 for disqualifying the petitioner as an MP on the ground that he has voluntarily given up membership of BSP. 4. The Speaker referred the petition to the Privilege Committee under sub-rule (4) of Rule 7 of the Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985 (the Rules). The privilege Committee submitted its preliminary report on 12.11.2007. 5. The Speaker after affording personal hearing to the petitioner passed the impugned order on 27.1.2008 disqualifying him as an MP under paragraph 2 (1)(a) of Xth Schedule of the Constitution of India. Hence the present writ petition. Points for determination 6. We have heard Sri Shashi Nandan, Senior Advocate and Sri Anoop Trivedi, Counsel for the petitioner. Dr. A.K. Nigam, Additional Solicitor General, Sri S.K. Misra for respondents 1, 3 and 4 and Sri Kesari Nathi Tripathi, Sri Murlidhar, senior Advocates, Sri SK Srivastava and Sri Ashok Kumar Pandey for the persons seeking impleadment in the writ petition. The following points arise for determination in the case. (i) Whether the persons seeking impleadment are entitled to be heard in opposition to the writ petition. (ii) Whether the finding recorded by the Speaker that the petitioner had voluntarily given up his membership of BSP is illegal. Ist Point : Person Seeking Impleadment—Entitled 7. The following points arise for determination in the case. (i) Whether the persons seeking impleadment are entitled to be heard in opposition to the writ petition. (ii) Whether the finding recorded by the Speaker that the petitioner had voluntarily given up his membership of BSP is illegal. Ist Point : Person Seeking Impleadment—Entitled 7. The Counsel for the petitioner submitted that the persons seeking impleadment have no direct interest in the matter and merely because in case fresh elections are held then they will be entitled to contest or nominate some one, is not sufficient interest to permit them to be heard in opposition to the writ petition. 8. There is no dispute between the parties that the persons seeking impleadment are electors from the same constituency. The post of MP is a public post. Every elector of that constituency is interested in the same. It is for this reason that even a elector of a constituency can file election petition challenging the election of the M.P. he has sufficient interest. An elector of the constinuency can be heard in opposition to the writ petition challenging disqualification of MP of his constituency under Order 22 Rule 5 of the High Court Rules. IInd Point : No Illegality in the Finding 9. There is no dispute regarding jurisdiction of this Court to entertain writ petition against the decision of the speaker. This has also been so held in Shri Kihota Hollohon v. Mr. Zachilhu and others, AIR 1993 SC 412 . It has laid down the parameters on which this Court can interfere. It is explained in the paragraph (H) of the operative conclusions of the majority decision : ‘(H) That paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied in paragraph 6(1) does not detract from or abrogate judicial review under Arts. 136, 226 and 227 of the Constitution in so far as infirmities based on violation of constitutional mandates, malafidies, non-compliance with Rules of Natural Justice and perversity are concerned.’ 10. It is correct that the newspaper report alone is not admissible without there being any other evidence. They can be taken into account with other evidence. 136, 226 and 227 of the Constitution in so far as infirmities based on violation of constitutional mandates, malafidies, non-compliance with Rules of Natural Justice and perversity are concerned.’ 10. It is correct that the newspaper report alone is not admissible without there being any other evidence. They can be taken into account with other evidence. The Supreme Court in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 has explained the law as follows : ‘A news item without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.’ 11. In this case newspaper reports are accompanied by a CD. The newspaper reports can be taken into account with the evidence of CD. Even apart from the newspaper reports, the content of the CD alone is sufficient to uphold the finding recorded by the Speaker. 12. The Counsel for the petitioner submitted : The principle as applicable to the newspaper should apply to the contents of the CD also; The CD should not be admissible unless supported by some other evidence; and This evidence should be other than the newspaper reports. 13. This is an interesting question but we do not propose to decide it in this case for the following reasons : The petitioner did not dispute the correctness of the contents of the CD. He never issued any denial of the statements attributed to him in the CD or in the newspaper reports. 14. The Counsel for the petitioner submitted that even if the statements are taken into account as they are, they do not lead to the inference that the petitioner has voluntarily given up membership of the BSP. 15. The paragraphs 20 and 35 of the order are relevant. They are as follows : "20. 14. The Counsel for the petitioner submitted that even if the statements are taken into account as they are, they do not lead to the inference that the petitioner has voluntarily given up membership of the BSP. 15. The paragraphs 20 and 35 of the order are relevant. They are as follows : "20. In the CD which was played at the personal hearing on 10th December, 2007 the correctness whereof was not disputed by the respondent, it is recorded that the respondent had inter alia stated during his speech (as per translation provided by the Lok Sabha Secretriat) that “16th December, 2006 is a historical day, that the leader of the Bahujan Samaj Party Kumari Mayawati insulted the entire Muslim Community by calling them fundamentalist and as a gesture of protest we have decided that not a single Muslim of Uttar Pradesh will give him vote. Bahujan Samaj Party and we will not rest until the Government of Hon’ble Mulayam Singh Yadav Ji is formed again in Uttar Pradesh and I take this opportunity to make this appeal to all of you”......The respondent further stated, inter alia, that “friends and respected elders this was my reason for quitting the BSP, you all are aware about the misdeeds of Bahujan Samaj Party and I did not care for such votes and such seats of power which might come to me due to my affiliation with the party which has tried to insult my community ... Hon’ble Mulayam Singhji is fighting for the cause of entire society including Hindus, Muslims, poor, weaker sections and Dalits in Uttar Pradesh.....It is only Shri Mulayam Singh Yadav who truly deserves our votes .....The Muslims of entire Uttar Pradesh should come forward to give their votes to Hon’ble Shri Mulayam Singh Yadavji to enable him to form a Government in Uttar Pradesh for the coming give years, so that he may continue his fight for the poors, and weaker sections ....From my heart I have always been a supporter of Samajwadi Party. I will have regards for Samajwadi Party I have never raised any slogan against Samajwadi Party. I will have regards for Samajwadi Party I have never raised any slogan against Samajwadi Party. Mulayam Singh Yadav Ji has done so much for the Muslims, it has no precedence since independence ....I would like to conclude with these words that during the election each and every person will come forward in support of Samajwadi Party to enable it to form the Government in Uttar Pradesh and our entire community will work towards strengthening the position of Shri Mulayam Singh in Uttar Pradesh. .. 35. However, in this case there is clear and direct evidence apart from the newspaper reports that the respondent had joined Samajwadi Party and that in any event he had expressly given up his membership of his political party, namely, the Bahujan Samaj Party. As mentioned before, when the CD was played at the time of the personal hearing, the respondent never challanged the correctness and veracity thereof and his only comment was that his speech in the CD did not mention about his joining the Samajwadi Party." 16. The statement of the petitioner has been quoted in paragraph 20 of the order. The petitioner has stated the reason for quitting BSP and supporting Samajwadi Party. It is sufficient to show that the petitioner has voluntarily given up membership of BSP. There is no illegality in the finding. 17. There is no allegation of any bias or violation of principles of natural justice. The impugned order cannot be said to be without any evidence or so unreasonable that no reasonable man can reach it on the contrary it is not only reasonable but the only conclusion that one can reach. It can not be interfered with. The writ petition has no merit. It is dismissed. ————