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2009 DIGILAW 207 (GAU)

Sanbor Shullai v. State of Meghalaya

2009-03-25

ASHOK POTSANGBAM

body2009
ORDER Asok Potsangbam, J. 1. Heard Mr. N. Dutta, learned senior Counsel assisted by Mr. S.P. Mahanta and Mr. D. Saikia on behalf of the petitioner. Also heard Mr. G.S. Massar, learned Advocate General, Meghalaya and Mr. N.D. Chullai, learned senior Government Advocate appearing on behalf of the respondent No. 1 and Mr. A.C. Borbora, learned senior Counsel assisted by Mr. U. Raj Saikia, learned Counsel appearing for the respondent No. 3. 2. Office note dated 20.3.2009 indicates that notices have been issued to the respondent Nos. 2 and 4 but none appears on behalf of the respondent Nos. 2 and 4. Misc. Case No. 89 of 2009 had been filed praying for staying the impugned complaint dated 14.3.2009, the show cause notice dated 15.3.2009 and the impugned order dated 16.3.2009 and the matter was heard at length on last Monday, i.e., 23.3.2009 and argument of the learned Counsel for the petitioner had already been concluded. The argument of the learned Counsel appearing for the respondent No. 3, was also almost concluded but on the request of the learned Counsel for the respondent No. 3, this Misc. Case is being heard again today. 3. It is not in dispute that the last General Assembly Election held in the month of March 2008, gave a fractured mandate and membership position of the parties and the independent members elected in a house of 60 members are as follows: 1. Indian National Congress 26 2. Nationalist Congress Party 15 3. UDP 10 4. HSPDP 2 5. BJP 1 6. Khanan 1 7. Independent 5 A coalition Government under the name and style Meghalaya Progressive Alliance (MPA) was formed by the parties shown from Serial Nos. 1 to 6 with the help of 3 (three) independent members and the respondent No. 2 who was elected as a candidate set up by UDP came to be elected as the Speaker of the Meghalaya Legislative Assembly and subsequently, the petitioner herein who was elected as a NCP candidate also came to be elected as Deputy Speaker of the Meghalaya Legislative Assembly. 4. During the course of the hearing, learned Advocate General Shri G.S. Massar is requested by the court to furnish the reasons which prompted summoning of the Assembly on 17.3.2009 for a confidence vote of the MPA coalition Government led by Dr. Donkupar Roy, as Chief Minister. 4. During the course of the hearing, learned Advocate General Shri G.S. Massar is requested by the court to furnish the reasons which prompted summoning of the Assembly on 17.3.2009 for a confidence vote of the MPA coalition Government led by Dr. Donkupar Roy, as Chief Minister. In response to the request of the court, the learned Advocate General has placed a letter dated 12.3.2009 written by the Governor to the Chief Minister. According to this letter, one Shri Paul Lyngdoh and another Dr. Adviser Pariong have resigned from the council of minister of MPA Government and 2 (two) MLAs namely Shri Lomison D. Sangma and Shri Ismail R. Marak have also withdrawn support from the MPA Government. Accordingly, leader of the Congress Legislature Party submitted a letter for dismissal of the MPA Government on the ground that the same had been reduced to a minority in view of the aforesaid resignation and withdrawal of support and also claimed for formation of a new Government led by Congress. The Governor, after consideration of the development, thought it appropriate that the Chief Minister should prove the support of majority on the floor of the house on 17.3.2009 and this is how the Assembly came to be summoned on 17.3.2009, for the purpose of a vote of confidence. 5. It will be relevant to state the sequence of events which led to the issuance of the impugned order dated 16.3.2009 and they are as follows: (i) A complaint dated 14.3.2009 was filed by one MLA namely Shri John Manner Marak who is arrayed as party respondent No. 3 in this petition, seeking to disqualify the petitioner, under the Tenth Schedule, from being a member of the Meghalaya Legislative Assembly and the prayers made in the complaint are reproduced herein below- (a) by an ex-parte ad-interim order suspend the membership of Mr. Sanbor Shullai from Meghalaya Legislative Party during the pendency of this petition; and/or (b) also suspend voting right of Mr. Sanbor Shullai by an ex-parte ad-interim order; (c) issue notice to Mr. Sanbor Shullai on this petition; (d) declare Mr. Sanbor Shullai disqualified under paragraph 2(1)(a) of Tenth Schedule of the Constitution of India read with Article 191(2) of the Constitution of India. Sanbor Shullai by an ex-parte ad-interim order; (c) issue notice to Mr. Sanbor Shullai on this petition; (d) declare Mr. Sanbor Shullai disqualified under paragraph 2(1)(a) of Tenth Schedule of the Constitution of India read with Article 191(2) of the Constitution of India. (ii) Acting on the aforesaid complaint, the Speaker issued a show-cause notice dated 15.3.2009 and the relevant portion of the show-cause notice is reproduced herein below- Due to current exigency, as desired by the hon'ble Speaker, you are hereby kindly requested to furnish your reply on or before 4.30 p.m. of 16th March, 2009 (Monday), failing which necessary action shall be taken against you as per law. Enclosed herewith is a copy of the complaint dated 14.3.2009. Yours faithfully, Sd/- W.M. Rymbai Secretary, Meghalaya Legislative Assembly. Copy to: 1. The Officer-in-charge, Laban and Rilbong Police Station, Shillong with a request to reach the notice to the residence of Shri Sanbor Shullai, MLA, immediately. (iii) On 16.3.2009, the Speaker issued an ex parte interim order suspending the petitioner from the membership of the Meghalaya Legislative Assembly and also suspending his voting right till final disposal of the petition/complaint and the relevant portion of the order is reproduced herein below: And, therefore, I shall be failing in my duty if I do not pass an interim order after having satisfied that a prima facie of disqualification of Mr. Sanbor Shullai under para 2(l)(a) of Tenth Schedule is made out. Therefore, I have no option but to pass this interim order by placing the membership of Mr. Sanbor Shullai of Meghalava Legislative Assembly under Suspension and also his voting right till final disposal of the petition. I may add here that the observations made herein above are solely for the purposes of deciding the issue of interim relief and the same shall have no bearing on the final decision which will be taken after complying with the principles of natural justice and giving sufficient opportunity to both the parties to adduce their respective evidence in support of their cases. (iv) On 17.3.2009, as admitted by all the learned Counsels appearing in the case, the confidence vote came for a division in the Legislative Assembly. (iv) On 17.3.2009, as admitted by all the learned Counsels appearing in the case, the confidence vote came for a division in the Legislative Assembly. In view of the interim order issued by the Speaker, suspending the membership and voting right of 5 (five) members, only 54 members and the Speaker could participate in the confidence motion and vote, for and against, the motion. There was a tie of 27 vs. 27 in the confidence motion and the Speaker cast his vote in the second count in favour of the confidence motion and the motion was said to have been carried. 6. It is stated that the petitioner, who was holding the office of the Deputy Speaker, was away to Delhi on 10.3.2009 in connection with specialist treatment of his abdominal problem and he returned to Shillong to participate in the vote of confidence, which was being held on 17.3.2009, only to find to his utter shock that he was suspended from the membership of the House and his voting right was also suspended by the impugned ex parte order. It is further stated that the impugned order had not been formally served to the petitioner at the relevant point of time. Hence, this application. 7. Various grounds have been taken in this writ petition by the petitioner, challenging the complaint dated 14.3.2009, the show-cause notice dated 15.3.2009 and the impugned order dated 16.3.2009 as illegal and unsustainable in law. Some of the grounds taken in this writ petition are that 7 days notice as required by the Meghalaya Disqualification Rules, 1988, was not complied with while giving the show-cause notice, wherein only one day's time was provided for submission of reply to the notice, the petitioner being the Deputy Speaker of the Meghalaya Legislative Assembly was protected by paragraph 5(1) of the Tenth Schedule from any disqualification proceeding initiated under paragraph 2(1)(a) of the Schedule. The petitioner has not only denied the allegations made in the complaint but also has also contended that he has not done anything, at any point of time, so as to attract the disqualification proceeding against under the Tenth Schedule of the Constitution and the proceeding initiated against him was mala fide and fraught with extraneous consideration. The petitioner has not only denied the allegations made in the complaint but also has also contended that he has not done anything, at any point of time, so as to attract the disqualification proceeding against under the Tenth Schedule of the Constitution and the proceeding initiated against him was mala fide and fraught with extraneous consideration. The petitioner has also contended that before taking the final decision on the complaint in accordance with the procedure prescribed by law, there is no provision in the Tenth Schedule of the Constitution empowering/clothing the Speaker to pass interim order and that in order to enable the Tribunal to pass interim order, there ought to be specific provision in the Tenth Schedule itself. 8. The respondent No. 3, the complainant has filed an affidavit on 20.3.2009 followed by an additional affidavit on 23.3.2009, opposing the prayer of the petitioner. The respondent No. 3 had taken a plea in the affidavit that the action of the Speaker including the issuance of the impugned order is not amenable to judicial review/writ jurisdiction of this Court in view of the immunity Clause provided under Article 212 of the Constitution of India. 9. Before proceeding to discuss the respective contentions of the parties in the case, it may be relevant for us to understand the position and role of a Speaker under the Constitution of India and the parliamentary form of democracy. There is no denial of the fact that a speaker has three specific roles under the constitution and parliamentary form of democracy. Firstly, the Speaker is the custodian of the House or Legislative Assembly and as such, the proceedings of the House and the decisions taken therein, even if found irregular, cannot be questioned in a court of law in view of the immunity provided in Article 212 of the Constitution of India. Secondly, a Speaker is also the head of the administration of the Legislative Assembly Secretariat. Thus, all actions and decisions taken by the Speaker in his capacity as the administrative head of the Institution, in respect of administrative affairs, is amenable to writ jurisdiction and subject to judicial review of this Court. Secondly, a Speaker is also the head of the administration of the Legislative Assembly Secretariat. Thus, all actions and decisions taken by the Speaker in his capacity as the administrative head of the Institution, in respect of administrative affairs, is amenable to writ jurisdiction and subject to judicial review of this Court. Thirdly, the Speaker being a Tribunal under the Tenth Schedule, has power to adjudicate as to whether an elected Member has incurred disqualification from being a Member of the House, in accordance with the procedure laid down in the Tenth Schedule of the Constitution and any decision taken by the Speaker in such proceeding is amenable to writ jurisdiction and subject to judicial review of the court. The proposition that the Speaker, while functioning under the Tenth Schedule, shall only act and function as Tribunal has been conclusively decided by a Constitution Bench of the Apex Court Kihoto Hollohan v. Zacjhillhu (1992) Supp (2) SCC 651. Again in Dr. Kashinath G. Jalmi and Ors. v. Speaker and Ors. 1993 (2) SCC 703 the Apex Court held the following: ...There is no scope for reading into the tenth schedule any of the powers of the speaker which he otherwise has while functioning as the speaker in the house, to clothe him with any such power in his capacity as the statutory authority functioning under the Tenth schedule of the constitution. This is well settled by the decision of the court relating to the speaker's orders under the tenth schedule. Accordingly, any power of the speaker, available to him while functioning in the House is not to be treated as his power or privilege as the authority under the Tenth schedule. 10. Having considered the role and power of the speaker in the three perspectives, as discussed above, this Court is called upon to consider whether the speaker, while functioning as tribunal under tenth schedule, has any power/jurisdiction to issue an interim order suspending a member from the house and also suspending the voting right of such member during the pendency and before taking the final decision in a proceeding under the tenth schedule. The speaker relied upon in the Kihoto Hollohan case (supra) as the source of his authority to issue the impugned interim order and the relevant paragraph, which is part of the impugned order, is quoted below: The hon'ble Supreme Court in the judgment of Kihoto Hollohan case (supra) has also observed that the interim order can be passed by the Speaker during the pendency of the petition. 11. It appears that para 110 of the Kihoto Hollohan case (supra) was not correctly appreciated while issuing the impugned order inasmuch as the Apex Court, in this para, laid down that normally quia timet action would be impermissible prior to making a final decision by the speaker in a disqualification proceeding under the Tenth schedule. However, it was clarified by the Apex Court that the court could interfere in cases where disqualification or suspension was imposed during the pendency of the proceeding and such disqualification and suspension was likely to have grave, immediate and irreversible repercussions and consequence. This para should not be understood as conferring power to the speaker to issue interim order while functioning as a tribunal under the team schedule. Mr. A.C. Borbora, the learned senior counsel appearing for the respondent No. 2 has pointedly asked by the court to show any para or part of the judgment in Kihoto Hollohan case (supra), which provides that the speaker can issue an interim order in a disqualification proceeding. Mr. A.C. Borbora, in his usual frankness, has fairly submitted that the Apex Court has not laid down any law in any part of the judgment empowering the speaker, while functioning as tribunal under the tenth schedule, to issue interim order before the final order is passed in the proceeding. 12. In order to justify the issuance of the impugned interim order, the speaker has also referred to some orders passed in the past by the speaker of the Meghalaya Legislative Assembly. But, admittedly, all the orders mentioned therein have been stayed by the court. 13. Mr. N. Dutta, learned senior Counsel for the petitioner submits that a Tribunal can pass interlocutory/interim order only if such power is available in the Act or rules regulating the function of the tribunal or specifically decided by the court to the effect that the tribunal shall have jurisdiction to entertain the application for grant of interim relief. 13. Mr. N. Dutta, learned senior Counsel for the petitioner submits that a Tribunal can pass interlocutory/interim order only if such power is available in the Act or rules regulating the function of the tribunal or specifically decided by the court to the effect that the tribunal shall have jurisdiction to entertain the application for grant of interim relief. In support of his contention, the following cases are relied upon by the learned Counsel appearing for the petitioner: 1. State of Tamil Nadu v. State of Karnataka (1991) Supp (1) SCC 240. 2. Cauvery Water Disputes Tribunal (1993) Supp (2) SCC 96 (I). 3. Morgan Stanley Mutual Fund v. Dr. Arvind Gupta (1994) 4 SCC 225 . 4. Gulzarilal Agarwal v. Accounts Officer (1996) 10 SCC 590 . 14. On the contrary, Mr. Borbora submits that the power to issue interim order is incidental and ancillary to the power of the Speaker and he relied upon a case L.T. Officer v. Md. Kunhi AIR 1969 SC 430 . In this case, the interpretation of the Section 254 of the Income Tax Act 1961 is involved. A perusal of Section 254 would leave no doubt that the section itself, empowers the appellate Tribunal to pass incidental and ancillary interim order after giving opportunity of being heard to the party and therefore, the case relied upon by the learned senior Counsel is of no help in determining whether the Speaker has any power to issue interim order while functioning as Tribunal under the Tenth schedule. The learned Counsel also relied upon a care Corporation of City, Nagpur v. Ramchandra, ILLG (1991) 6. This case relates to the exercises of administrative power and as such it has nothing to do with the case in hand. It is further submitted by Mr. A.C. Borbora, learned senior Counsel that 7 days notice, as required under the Meghalaya Disqualification Rules, 1988 is applicable only in case of final order and same is not applicable in case of interim order. However, Mr. Borbora could not show any provision in the Rules by which the Speaker can pass interlocutory/interim order. Thus, it is established beyond doubt that issuance of the impugned interim order by the Speaker is without the mandate of any Rules framed in this regard. 15. As has been held by the Apex Court in Dr. Kashinath and Ors. However, Mr. Borbora could not show any provision in the Rules by which the Speaker can pass interlocutory/interim order. Thus, it is established beyond doubt that issuance of the impugned interim order by the Speaker is without the mandate of any Rules framed in this regard. 15. As has been held by the Apex Court in Dr. Kashinath and Ors. (supra), that once a final order is issued under the Tenth schedule disqualifying a member, the Speaker does not have any power to review such order of disqualification. The consequence of the final order, if not interfered with by the court, is to declare the Assembly Constituency represented by the disqualified member as vacant and fresh election is to be held and during the period between the disqualification and the fresh election, the voters/citizens of the particular Constituency would remain unrepresented in the Legislative Assembly. Such being the position, the purpose and spirit of the Tenth schedule is expected to be understood properly. Thus, this Court, prima facie, is of the considered opinion that there is no provision in the Tenth schedule to temporarily unseat an elected member from his constituency, leave alone any power of suspending voting right of an elected member temporarily. It appears that filing of a complaint of 14.3.2009, issuance of show-cause notice on 15.3.2009 followed by suspension order on 16.3.2009 cannot be completely de-linked with the confidence vote scheduled to be held on 17.3.2009. Had the five (5) members including the petitioner not been suspended by the Speaker, the fate of the confidence vote could have been different. 16. Be that as it may, in the absence of any provision in the Tenth schedule empowering the Speaker to issue interim order and in the absence of disclosing the very source of power to issue an interim order, the issuance of the interim order by the Speaker, prima facie, is without jurisdiction and authority. This proposition finds support in a case in Union of India v. Tulsiram Patel 1985 (3) SCC wherein the Constitution Bench of Apex Court held that there cannot be an "exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of non-existent power and would be void. If such power does not exist in law, the purported exercise of it would be an exercise of non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it. It is also well settled that where a source of power exists, the exercise of such power is referable only to that source and not to some other source under which were the power exercises, the exercises of such power should be invalid and without jurisdiction." 17. In the backdrop of the discussions made above and upon hearing the learned Counsel appearing for the parties, this Court is of the considered opinion that a strong prima facie case has been made out by the petitioner for interference from this Court. Accordingly, the impugned interim order dated 16.3.2009 (Annexure-C) issued by the respondent No. 2, Speaker, Meghalaya Legislative Assembly is hereby stayed until further orders from this Court. 18. As this order has been passed without hearing the respondent Nos. 2 and 4, the Respondent No. 2 and 4 shall be at liberty to file application for vacation/modification/alteration of this order. The misc. case stands disposed of.