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2017 DIGILAW 1321 (PAT)

Kaushal Kaushik v. State of Bihar

2017-10-10

AHSANUDDIN AMANULLAH

body2017
ORDER Heard Mr. S. B. K. Mangalam, learned counsel for the petitioner; Mr. P. K. Shahi, learned senior counsel along with Mr. Kaushal Kumar Singh, learned counsel for the Estimates Committee of the Bihar Legislative Assembly and Mr. Subhash Prasad Singh, learned G.A. 3 for the State. 2. The petitioner has moved the Court for the following reliefs:— “(I) For issuance of an appropriate writ in the nature of CERTIORARI for quashing the 159th Report and the recommendation of the Respondent Estimate Committee of the 16th Bihar Legislative Assembly dated Nil, whereby and where under direction has been issued to take action against the erring officials (Adhyaksh, Executive Officer) Government Servants and the Agency for violation of the provisions of the Bihar Municipal Act and Bihar Financial Rules on the ground that in view of the provisions contained under Section 66 of the Bihar Municipal Act, 2007, the Executive Committee of Bihar Legislative Assembly does not have any jurisdiction to conduct an enquiry in the affairs of a Municipal Government and, therefore, the report and the recommendation of the aforesaid Committee is totally uncalled for and without jurisdiction. (II) For declaration that even if the said Committee is empowered to hold enquiry in the affairs of a Municipal Government, it cannot restrict its direction for action against the selective rather it should have directed for action against the High officials of the State Government and the Central Government, who had approved these schemes and no fault was found with the decisions of the Naubatpur Nagar Panchayat. (III) For a further declaration that if the decisions, which in the opinion of the Committee were erroneous decisions, was the decision of the Municipal Board and it was approved by the State Level Coordination Committee (SLCC) and the Central Sanction Committee (CSC), for any such irregularity, the action has to be taken either against all or against none, the recommendation of the Respondent Committee is illegal and, therefore, cannot be sustained in the eye of law. (IV) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be found entitled under the facts and circumstances of the case.” 3. In view of a preliminary objection raised by Mr. (IV) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be found entitled under the facts and circumstances of the case.” 3. In view of a preliminary objection raised by Mr. P. K. Shahi, learned senior counsel with regard to maintainability of the writ application, the same has been taken up by the Court before proceeding to hear the matter on merits. 4. According to Mr. P. K. Shahi, learned senior counsel, the writ application is not fit to be entertained and dismissed at the threshold in view of the bar of Article 212 of the Constitution of India which prohibits Courts calling in question the validity of any proceedings in the Legislature of a State on the ground of any alleged irregularity of procedure. 5. Learned counsel submitted that the Estimates Committee being a creature of the Legislature of the State, stands covered by the provisions of Article 212 of the Constitution of India and accordingly, a proceeding of the same shall also be a proceeding of the Legislature of a State. For such proposition, learned counsel drew the attention of the Court to provisions in the Rules of Procedure and Conduct of Business in the Bihar Legislative Assembly (hereinafter referred to as the ‘Rules’), which are statutory in nature, made under Article 208 of the Constitution of India. He referred to Rule 185 of the Rules to contend that unless the context otherwise requires, “Committee” means and includes “Committee of the Vidhan Sabha” as defined in Rule 2 of the Rules. Coming to Rule 2, he contended that the definition of the “Committee of the Vidhan Sabha” is defined to mean that the Committee which is appointed or elected by the Vidhan Sabha or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker. Learned counsel, thus, submitted that the conjoint reading of Rules 185 and 2 (1) relating to definition of “Committee of the Vidhan Sabha”, would mean that the said Committee is also within the definition of “House” and any proceeding of such Committee would also be amenable to restriction of interference by courts in terms of Article 212 of the Constitution of India. 6. The Court has given serious consideration to the contention of Mr. P. K. Shahi, learned senior counsel. 6. The Court has given serious consideration to the contention of Mr. P. K. Shahi, learned senior counsel. However, it is unable to accept such submission. The issue does not need elaborate discussions or interpretation of either the Constitution of India or the Statues. Article 212 of the Constitution of India reads as under:— “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.” 7. Further, the Rules which have been relied upon, i.e., Rule 185 and the definition of the “Committee of the Vidhan Sabha” in Rule 2 (1) of the Rules is also quoted hereinbelow:— “2 Definitions.—(1) In these rules, unless the context other requires,- x x x x x “Committee of the Vidhan Sabha” means a Committee which is appointed or elected by the Vidhan Sabha or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker;” 8. Further, in the definition itself the “House” has been defined as under:— “"House" means a House of the Bihar Legislature.” 9. From a plain reading of Article 212 (1) of the Constitution of India, it is clear that it relates to bar of interference by Courts of any proceeding in the Legislature of a State on the ground of any alleged irregularity of procedure. Thus, first and foremost, the bar extends only on the ground of alleged irregularity of procedure and not on any other ground. This is one aspect of the matter. The other more relevant aspect in the present case is as to whether the “Estimates Committee of the Bihar Legislative Assembly” can be said to be “Legislature of a State” so that its proceedings get some sort of protection under Article 212 of the Constitution of India. Rule 185 of the Rules speaks of Committees of the Vidhan Sabha as defined in Rule 2 of the Rules. Rule 185 of the Rules speaks of Committees of the Vidhan Sabha as defined in Rule 2 of the Rules. The definition of “Committee of the Vidhan Sabha” indicates that it shall be a Committee which is working under the direction of the Speaker and presents its report to the House or to the Speaker. The “House” has also been defined to mean as “House of the Bihar Legislature”. The conjoint reading of the same leaves nothing to doubt or confusion or ambiguity that the “House” and the “Committee of the Vidhan Sabha” are two distinct and separate entities. The Committees, though constituted from amongst the members of the Legislative Assembly, are not the Legislative Assembly, i.e., the “House” and are distinct from it. It has the power to make recommendations and, thus, in the definition itself it has clearly been spelt out that it shall work under the direction of the Speaker and present its report to the House or to the Speaker. Thus, if the “Committee” is also the “House”, then it cannot present its report to itself as specified in Rule 2 of the Rules itself, as it would then be a report of the “House”. The Court would further add that the Committees, which may be working on the directions and under the authority of the House, cannot be equated with the “House” for the purposes of invoking the protection in Article 212 of the Constitution of India. In the present case, the challenge is to the jurisdiction of the Estimates Committee of the Bihar Legislative Assembly with regard to giving directions to the district officials relating to a matter which has been taken up by them and further follow up action by the State authorities. In such background, the Court has no hesitation to hold that the objection raised by Mr. P. K. Shahi, learned senior counsel with regard to maintainability of the writ application in view of bar of Article 212 of the Constitution of India cannot be sustained and is accordingly overruled. In such background, the Court has no hesitation to hold that the objection raised by Mr. P. K. Shahi, learned senior counsel with regard to maintainability of the writ application in view of bar of Article 212 of the Constitution of India cannot be sustained and is accordingly overruled. Further, though the present matter does not raise such issue but the Court would only indicate that even the bar of Article 212 of the Constitution of India relates to alleged irregularity of procedure and not to the merits of a matter and by now it is well settled that even the merits of a proceeding of the Legislature of a State are open to judicial review, a classic example of the same being judicial review of a ‘No Confidence Motion’ by the State Legislature, which is undisputedly a proceeding of the Legislature of a State. 10. Accordingly, the matter has now to be heard on merits. As jointly prayed, the case be listed on 17th November, 2017, retaining its position.