Gauhati High Court
Pema Khandu & 13 Ors vs The Speaker & 4 Ors on 30 March, 2016
Bench: T. Vaiphei, Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Writ Petition (C) No. 09 of 2016
1) Pema Khandu, MLA, 3-Mukto (ST) Assembly
Constituency, PO & PS- Itanagar, District -
Papum Pare.
2) Kumar Waii, MLA, 8-Bameng (ST) Assembly
Constituency, PO & PS- Itanagar, District -
Papum Pare, PIN - 791111.
3) Kameng Dolo, MLA, 12-Pakke-Kessang (ST)
Assembly Constituency, Quarter No. 15,
Niti Vihar, PO & PS- Itanagar, District -
Papum Pare, PIN - 791111.
4) Markio Tado, MLA, 20-Tali (ST) Assembly
Constituency, Bungalow No. IV, Division IV,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
5) Jarkar Gamlin, MLA, 31-Aalo (E) (ST) Assembly
Constituency, MLA Cottage No. 5, E-Sector,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
6) P.D. Sona, MLA, 33-Mechuka (ST) Assembly
Constituency, MLA Cottage No. 5, E-Sector,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
7) Mutchu Mithi, MLA, 43-Roing (ST) Assembly
Constituency, Private Residence, Opposite SBI
Bank, Tadar Tang Marg, Bank Tinali,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
8) Kamlung Mossang, MLA, 50-Miao (ST) Assembly
Constituency, Bungalow No. 4, Niti Vihar,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
9) Phosum Khimhun, MLA, 52-Changlang South (ST)
Assembly Constituency, Bungalow No. 14, Niti Vihar,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
10) Wanglin Lowangdong, MLA, 57-Borduria-
WP (C) No. 9/2016 Page 1 of 54
Bogapani (ST) Assembly Constituency,
Bungalow No. 5, Niti Vihar, PO & PS-
Itanagar, District - Papum Pare, PIN - 791111.
11) T. Wangham, MLA, 59-Longding-Pumao (ST)
Assembly Constituency, Bungalow No. 7,
Doordarsan Colony, PO & PS- Itanagar, District -
Papum Pare, PIN - 791111.
12) Lombo Tayeng, MLA, 3-Mebo (ST) Assembly
Constituency, Motum Village, PO & PS- Mebo,
District - East Siang, Arunachal Pradesh.
13) Kalikho Pul, MLA, 45-Hayuliang Assembly
Constituency, Quarter No. 8, Type V, ESS Sector,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
14) T.N. Thongdok, MLA, 5-Kalaktang (ST) Assembly
Constituency, Quarter No. 5, Type V, Mowb-II,
PO & PS- Itanagar, District - Papum Pare,
PIN - 791111.
............ Petitioners
- Versus -
1) The Speaker, Arunachal Pradesh Legislative
Assembly, Naharlagun, Arunachal Pradesh.
2) Sri Nabam Rebia, MLA, Former Speaker of
Arunachal Pradesh Legislative Assembly,
Naharlagun, Arunachal Pradesh, PIN-791111.
3) The Secretary, Arunachal Pradesh Legislative
Assembly, Naharlagun, Arunachal Pradesh,
PIN-791111.
4) Sri Nabam Tuki, MLA, At present Chief Minister,
Arunachal Pradesh, Itanagar, Arunachal Pradesh,
PIN-791111.
5) Election Commission of India, through the Chief
Election Commissioner, Nirvachan Sadan, Ashoka
Road, New Delhi-110001.
6) Mr. Rajesh Tacho, Bungalow No.2, Niti Vihar,
PO & PS- Itanagar- 791111 and the Chief Whip
Congress Legislative Party, Arunachal Pradesh
Legislative Assembly, Naharlagun.
........ Respondents
WP (C) No. 9/2016 Page 2 of 54
BEFORE
THE HON'BLE MR. JUSTICE T. VAIPHEI
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
For the petitioner: Mr. Rakesh Dwivedi, Sr. Advocate.
Ms. Sansriti Pathak, Advocate,
Mr. Rajiv Dalal, Advocate,
Mr. S.S. Dey, Sr. Advocate,
Mr. M. Nath, Advocate,
Mr. P.K. Tiwari, Sr. Advocate.
For the respondent Nos. 1&2 : Mr. P.K. Goswami, Sr. Advocate.
Mr. Arunabh Chowdhury, Advocate,
Mr. Satyen Sarma, Advocate,
Ms. Barnali Chowdhury, Advocate,
Mr. Gainilung Panmei, Advocate,
Mr. Diganta Chowdhury, Advocate,
Ms. Heena Khan, Advocate,
Mr. Sanjeev Deka, Advocate,
Mr. Jayanta Deka, Advocate.
For the respondent No. 4 : Mr. HS Paonam, Sr. Advocate,
Mr. M. Gunadhor Singh, Advocate,
Ms. Sheela Khumukeham, Advocate,
Mr. Sanjib Kr. Singh, Advocate.
For the respondent No. 6: Mr. M.N. Krishnamoni,Sr. Advocate.
Mr. R.H. Nabam, Advocate.
Date of Hearing : 13-03-2016
Date of Judgment: 30-03-2016
JUDGMENT & ORDER (CAV)
(Justice T. Vaiphei)
The legality of the order of disqualifications dated 15-12-2015
issued by the respondent No. 2 and the official Gazette notification dated
15-12-2015 issued by the respondent No. 3 disqualifying the 14 petitioners
from the Membership of the Arunachal Pradesh Legislative Assembly ("the
Assembly" for short) w.e.f. 15-12-2015 under Article 191(2) read with
Paragraph 2(1)(a) and Paragraph 6(1)(2) of the Tenth Schedule to the
Constitution of India are under challenge in this writ petition. Before
proceeding further, it may be noted that the impugned order of
WP (C) No. 9/2016 Page 3 of 54
disqualifications had earlier been stayed by the learned Single Judge on 7-
1-2016, which was taken to appeal before the Apex Court. The Apex Court,
after perusing the records, passed the order dated 18-2-2016 in S.L.P.(C)
No. 779-780 of 2016 declining to interfere with the said interim order and
instead directing the then Chief Justice (Acting) to place the case before
the Division Bench for expeditious disposal, preferably, within two weeks.
This is how this writ petition has been taken up by this Division Bench.
2. To say the least, this is a bizarre case; sometime facts can be really
stranger than fiction. The said notification is the off-shoot of the order of
disqualifications passed by the Speaker of the Assembly against the
petitioners, but, interestingly, there are three versions of the
disqualification order of the Speaker, which will be dealt with later on. In
the general election to the Arunachal Pradesh State Legislative Assembly
held in the month of April, 2014, 47 MLAs were elected on the tickets of
Indian National Congress (INC); the 14 petitioners herein are some of them.
The petitioner No. 14 (Sri T.N. Thongdok) was elected as the Deputy
Speaker of the Assembly just after the election. The case of the petitioners
is that they were not served with any independent order of the Speaker
disqualifying them from their Membership of the Assembly and that they
incidentally could caught hold of one of the orders signed by the then
Speaker of the Assembly (Sri Nabam Rebia) on 15-12-2015, which was
marked to the petitioner No. 4 though by the same order, another
petitioner, namely, Sri Kumar Waii was also declared to have incurred
disqualification under the 10th Schedule. According to the petitioners, they
have reason to believe that there may not be any proper independent order
of the Speaker pertaining to their disqualifications; the possibility of
manufacturing such an order by the respondent Nos. 1 and 2 at some later
point of time cannot be ruled out. As they were not served with an
independent order of their disqualifications, apart from the document
already annexed as Annexure-1, they are not in a position to annex any
other order of their disqualifications which might have been issued or
shown to have been issued by the respondent Nos. 1 and 2. In the current
Assembly, the party wise composition of the State Legislature is as follows:
1. INC - 47;
WP (C) No. 9/2016 Page 4 of 54
2. BJP - 11 and
3. Independent - 2
The total strength of the House is 60.
3. It is the allegation of the petitioners that there was a strong sense of
disquiet in the recent past among the 21 MLAs including the petitioners
over the style of functioning of the Chief Minister of Arunachal Pradesh,
namely, Sri Nabam Tuki (the respondent No. 4), who has now ceased to be
the Chief Minister of the State during the pendency of this writ petition,
and also against the improper behavior of the respondent No. 2, who
happens to be a close relative of the respondent No. 4. The petitioners
were, therefore, compelled to voice their concern within the party within
the permissible democratic manners for change of leadership of the party
in order to bring about better socio-economic advancement of the State.
They would like to emphasize that they had remained loyal to the party,
and were proud to be the Members of the Indian National Congress
Party(I). According to the petitioners, a series of incidents took place
recently in the State involving the respondent No. 4 and the petitioners,
which heightened the discontentment amongst them. Two of the Members
were also alleged to have been forced to resign as Member of the Assembly
under duress/coercion. Nevertheless, the 21 MLAs including the
petitioners expressed their loyalty to the Party from time to time.
4. It is also the case of the petitioners that the 5th Session of the said
Assembly concluded on 31-10-2015 whereafter the Governor of the State of
Arunachal Pradesh ("the Governor" for short) in terms of Article 174(1) of
the Constitution of India issued an order on 03-11-2015 summoning the
6th Assembly for meeting of its 6th Session at 10.00 a.m. on 14-01-2016 in
the Assembly Chamber at Naharlagun. After this order of the Governor, a
notice of resolution for removal of the respondent No. 2 from the office of
the Speaker of the Legislative Assembly was given to the Secretary,
Legislative Assembly (respondent No. 3) on 19-11-2015 with a copy
endorsed to the Governor. The notice was given by one Sri Tamiyo Taga
(BJP), who was the leader of the opposition in the Assembly along with 10
other Members of the BJP and the same was supported by 2 other
independent MLAs, wherein some allegations were made against the
WP (C) No. 9/2016 Page 5 of 54
respondent No. 2 for his conduct of having accepted the purported
resignation letter of the said 2 MLAs without personally verifying from
them about the correctness of the said resignation letters. The said notice
of dismissal was served on the respondent No. 3 on the same date, i.e. 19-
11-2015 with a copy endorsed to the Governor. The respondent No. 3,
however, did not publish the said notice dated 19-11-2015 in the Bulletin
Part-II despite the mandate of the law, nor did the Speaker take any action
to publish the same. Neither did the Speaker initiate any action for
convening the Session of the House even after the expiry of the mandatory
period of 14 days' notice period under Article 179(c) of the Constitution of
India. On the contrary, the respondent No. 2 along with the respondent No.
4 and a few other INC Party MLAs started talking about Secretary and the
Speaker of the Legislative Assembly of having received a notice of
resolution for removal of the petitioner No. 14 issued by certain MLAs of
the INC Party. However, no notification was forwarded to the Governor nor
was any action taken by the respondent No. 3 to publish the second notice
of resolution. On getting a report about the notice of resolution for removal
of the Speaker, the Deputy Secretary to the Governor, under instruction of
the Governor, wrote a letter dated 07-12-2015 to the respondent No. 3
asking for a copy of the resolution for removal of Deputy Speaker to be
forwarded to the office of the Governor along with the following
information:
(a) Date of receipt of the notice of the resolution in the
Legislative Assembly;
(b) Action taken by the Legislative Assembly on the notice;
and
(c) Highlight of the proceedings, if any.
5. According to the petitioners, it was claimed by the respondent No. 2
in the connected WP(C) No. 7745/2015 that on 07-12-2015, Sri Rajesh
Tacho, Chief Whip, Congress Legislature Party (respondent No. 6) filed a
petition under Article 191(2) and Paragraph 8 of the Tenth Schedule read
with Paragraph 2(1)(a) & 6(1) & (2), Rule 3(7) and Rule 6 of the Arunachal
Pradesh Legislative Assembly (Disqualification on Ground of Defection)
Rules, 1987 ("the Rules" for short), before the respondent No. 2 seeking
WP (C) No. 9/2016 Page 6 of 54
disqualification of all the 14 petitioners. In the said petition, the Speaker
was asked to declare that all the 14 petitioners had voluntarily given up
their Membership from the INC and its Legislative Party in terms of the
provisions of Paragraph 2(1)(A) of the Tenth Schedule and that all these 14
petitioners had become subject to disqualification thereunder and at the
sametime the seats held by them in the Assembly had become vacant from
the date of the order. It is the specific case of the petitioners that none of
them have received any such petition or notice till the filing of the writ
petition as is required under the provisions of the Rules and that such
knowledge was gathered by them only from the records of WP(C) No.
7745/2015. The petitioners claim that they were not aware of the existence
of such a petition filed by the respondent No. 6.
6. According to the petitioners, in the petition dated 07-12-2015
seeking their disqualification filed by the respondent No. 6, the name of the
petitioner No. 13 (Sri Kalikho Pul) was also included even though he has
challenged the order of his expulsion from the INC Party in a suit before
the civil Court and that there is an existing interim order of the civil Court
staying the order of his expulsion. The revision petition filed by the
President, Arunachal Pradesh Congress Committee before this Court
challenging the interim order was dismissed by this Court in its judgment
dated 06-10-2015. It is the contention of the petitioners that when there is
an order of injunction from the civil court in favor of the petitioner No. 13,
his name could not have been included in the petition filed by the
respondent No. 6 seeking his disqualification under the Tenth Schedule.
On 08-12-2015, according to the petitioners, the ADC to the Governor
went to the Legislative Assembly Secretariat on the instruction of the
Governor and met the Secretary, Additional Secretary, OSD to Speaker and
Section Officer of the Legislative Assembly Secretariat and apprised them
about the letter issued from the Governor's Secretariat regarding notice of
resolution for removal of Deputy Speaker. According to the petitioners, as
the concerned file was lying in the official residence of the respondent No. 2
at Itanagar, the ADC submitted a note about what he learnt on 08-12-2015
to the Governor's Secretariat.
WP (C) No. 9/2016 Page 7 of 54
7. It is the further case of the petitioners that on 09-12-2015, the
Governor, in exercise of his power under Article 174(1) of the Constitution
of India, issued an order modifying the summons already issued and
instead advanced the 6th Session of the Assembly from 14-1-2016 to 16-
12-2015. On the same day, i.e. 09-12-2015, the Governor also issued a
message under Article 175(2) of the Constitution of India stipulating the
resolution for removal of the Speaker as first item on agenda of the
Assembly and stating that the petitioner No. 14 should preside over the
House in accordance with the provisions of Article 181(1) of the
Constitution of India and further mentioned therein that till the Session
was prorogued, there should be no change/alteration in the composition of
the parties in the House. On 14-12-2015, the State Cabinet, under the
Chief Ministership of Sri Nabam Tuki passed a resolution declaring that
the decision of the Governor to prepone the Assembly was contrary to the
constitutional provisions and advised the Governor to recall or cancel the
order dated 09-12-2015 and allow the Sessions to be convened on 14-01-
2016. On 14-12-2015, the respondent No. 1/2 issued a note requesting
the Home Minister to ensure full proof security in and around the
Assembly Building from 15-12-2015 to 18-12-2015, and no individual
including the Legislators be allowed to enter the Assembly Building
Premises on the 15th, 16th, 17th and 18th of December, 2015. In the said
letter, the Home Minister directed the DGP to deploy security personnel,
and the same was passed on to the Superintendent of Police (City).
8. On 15-12-2015, the Superintendent of Police, Itanagar, wrote a
letter to the Secretary, State Legislative Assembly, seeking clarification on
the Speaker's note dated 14-12-2015 as to under what provision of law,
the request of the respondent No. 2 should be enforced. This, according to
the petitioners, was primarily in connection with the request of the
respondent No. 2 that no individual including the Legislators be allowed to
enter the Assembly Building from 15-12-2015 to 18-12-2015. On the same
day, i.e., 15-12-2015, the respondent No. 3 issued the notification
disqualifying the petitioners including the petitioner No. 14 from the
Membership of the Arunachal Pradesh Legislative Assembly w.e.f. 15-12-
2015 and declaring that consequent to such disqualification, the seats
WP (C) No. 9/2016 Page 8 of 54
held by them had become vacant. Among the MLAs who were disqualified,
the name of the respondent No. 13 also figured even though there was
already an order of injunction of civil Court staying his expulsion from the
INC Party. According to the petitioners, the notification was not preceded
by any order of Speaker and none of these disqualified MLAs were served
with any such order of the Speaker. Moreover, contend the petitioners, the
notification also included the name of one MLA, Sri Lombo Tayeng
(petitioner No. 12), who was not even mentioned in the petition dated 07-
12-2015, filed by the respondent No. 6, seeking disqualification of the 14
MLAs named therein. The aforesaid petition had the name of an MLA, Sri
Wangki Lowang, whose name was not found in the impugned notification
dated 15-12-2015. On the same day, i.e., on 15-12-2015, the respondent
No. 3 issued a notification holding that two of the MLAs, namely, Sri
Wanglam Sawin and Sri Gabriel Denwang Wangsu were not entitled to
take part in the proceeding of the House till final disposal of their case by
this Court in the matter of acceptance of their resignations by the Speaker.
This notification was said to be issued in defiance of the interim order of
this Court staying the said notification of the Secretary, State Legislative
Assembly, accepting the resignations. Again, on 15-12-2015, the Deputy
Speaker passed an order treating the order of the Speaker disqualifying the
petitioners as void ab-initio and holding that all the 14 disqualified
Congress MLAs would continue to be the Members of the 6th Arunachal
Pradesh Legislative Assembly. It is contended by the petitioners that this
action was needed and actuated on the backdrop of the Notification dated
15-12-2015 inasmuch as till such time when the Deputy Speaker made
such an order, no such order disqualifying the petitioners was formally on
record nor was it served upon the petitioners or even gazetted or published
in the Assembly Bulletin. The petitioner No. 14 (Deputy Speaker) also
rescinded the notification dated 15-12-2015 issued by the Secretary, State
Legislative Assembly (respondent No. 3) preventing the participation of Sri
Wanglam Sawin and Sri Gabriel Denwang Wangsu in the proceeding of the
House. On the same day, the respondent No. 2, in turn, issued a Press
release declaring that there should be no Assembly Session from 15th to
18th of December, 2015 and that all orders/notifications issued by the
Deputy Speaker on 15-12-2015 should be treated as null and void.
WP (C) No. 9/2016 Page 9 of 54
9. According to the petitioners, on 16-12-2015, the petitioner No. 14
issued an order holding that the Press release of the Speaker (Sri Nabam
Rebia) (respondent No. 2) that there would be no 6th Session on 16-12-
2015 onwards, as illegal and that the 6th Session of the Legislative
Assembly should be held as scheduled from 16-12-2015 to 18-12-2015.
On the same day, the petitioner No. 14 wrote a letter to the Governor
stating that the Assembly premises are locked and Civil and Police
administration were defiant and were not co-operating in the holding of the
6th Session of the Assembly and urged him to invoke his special powers
under Article 371(h) of the Constitution of India for maintaining law and
order and for ensuring opening of the assembly premises coupled with safe
passages for all MLAs to the Assembly premises and to provide necessary
security for the conduct of proceedings. Another letter dated 16-12-2015
was sent to the Governor by the petitioner No. 14 informing him that he
tried his best to enter the Assembly premises but failed as the Assembly
premises were locked up; he also enclosed the memorandum to the
Governor dated 16-12-2015 signed by 33 MLAs constituting majority in the
House of 60 Members, expressing that the Session should have been held
in terms of the order and the message of the Governor dated 09-12-2015 to
ensure majesty of the Constitution and the office of the Governor. In the
said memorandum, the petitioner No. 14 requested the Governor to allow
him to hold the Session at any other place adjacent to the Assembly
premises within Naharlagun so that the constitutional obligations were
discharged. In the said letter, the petitioner No. 14 also conveyed the
suggestion of the 33 MLAs that in view of serious law and order problem,
the 6th Session of the Assembly might be held at Techi Takar Memorial
Community Hall, G-Sector, Naharlagun and sought his approval for the
same. On obtaining the approval of the Governor, the Deputy Speaker, by
his letter dated 16-12-2015 informed the Director, Department of
Information and Public Relations, Government of Arunachal Pradesh about
the shifting of the venue and of the holding of the Session at about 2.00
p.m. onwards. The said information was also conveyed to all Members of
Electronic, Print and other Media. On 16-12-2015, the 6th Session was
held at Techi Takar Memorial Community Hall, G-Sector, Naharlagun,
WP (C) No. 9/2016 Page 10 of 54
wherein the motion for removal of the Speaker was passed with 33 MLAs of
60 Members House voting in favour of the resolution for removal of the
Speaker. Consequently, the notification dated 16-12-2015 was issued by
the petitioner No. 14 functioning as the Speaker of the Assembly, who also
declared that the office of the Speaker of the Arunachal Pradesh Legislative
Assembly had fallen vacant, whereupon the record of proceeding of the
House regarding removal of the respondent No. 2 was published in Bulletin
Part-I.
10. It is also the case of the petitioners that the petitioner No. 14, now
functioning as the Speaker of the Assembly, wrote to the then Chief
Minister (respondent No. 4) informing him about the business of the 6th
Session to be conducted on 17-12-2015 and enclosed therewith the
Bulletin Part-II and the list of business for 17-12-2015. The 33 MLAs of the
60 Members House presided over by the petitioner No. 14 as Speaker then
adopted a motion on Composite Floor Test, showing their no confidence in
the Congress Government in the State led by Nabam Tuki (respondent No.
4). The motion for Composite Floor Test was then moved by 11 BJP MLAs
and 2 Independent MLAs and the same was passed by all the 33 MLAs
including the 20 MLAs from Congress excluding the Deputy Speaker. The
proceeding of the House was then published in Bulletin Part-I. The
petitioner No. 14 thereafter informed the Governor about the proceeding by
his letter dated 17-12-2015 and enclosed therewith the Bulletin Part-I and
other relevant records. He also sent a report to the Governor on 17-12-
2015 informing him about the collapse of Civil and Police administration at
Naharlagun on 17-12-2015, which resulted in sitting of the 6th Session at
Shoto-Kan Karate Training Hall, Naharlagun. It was at this stage that the
respondent No.1/2 filed the WP(C) No. 7745/2015, which was moved
before this Court, wherein he annexed the document such as the
application purportedly bearing dated 07-12-2015 of the respondent No. 6
seeking disqualification of the petitioners. In this writ petition, the
respondent No. 1/2 (Shri Nabam Rebia) challenged the order dated 9-12-
2015 preponing the Session of the 6th Assembly from 14-1-2016 to 16-12-
2015, the message of the Governor dated 9-12-2015 stipulating the
resolution for removal of the Speaker as the first item of the business in
WP (C) No. 9/2016 Page 11 of 54
that sitting, the holding of the sitting of the 6th Session of Assembly outside
the House, the order dated 15-12-2015 quashing the disqualification of the
petitioners herein and the notification and resolution dated 16-12-2015
removing him from the Office of the Speaker of the Assembly. It was only
when the petitioners received a copy of this writ petition that they came to
learn about the said application dated 07-12-2015 seeking their
disqualification.
11. This Court, by the interim order dated 17-12-2015, stayed the order
of the Governor dated 09-12-2015 and all the consequential actions arising
therefrom. All the petitioners, except the petitioner No. 14 (who then the
Deputy Speaker), thereafter filed I.A. No. 2838/2015 in the connected
WP(C) No. 7745/2015 challenging the maintainability of the writ petition
and seeking its dismissal with a prayer for vacation of the interim order
dated 17-12-2015. The petitioner No. 14 (the former Deputy Speaker), filed
a separate I.A. No. 2839/2015 seeking the same relief sought for in I.A. No.
2838/2015. According to the petitioners, the remaining 7 MLAs of INC
Party, who had participated in the said Session along with 14 petitioners,
had also filed I.A. No. 2828/2015 seeking their impleadment as
respondents in WP(C) No. 7745/2015 for opposing the relief sought for in
the writ petition. The 11 BJP MLAs with 2 Independent MLAs also filed I.A.
No. 2822/2015 seeking their impleadment as respondents in the writ
petition to oppose the reliefs sought for by the petitioner (respondent No. 2
in the said writ petition). Both the impleadment applications were allowed
by this Court by the order dated 21-12-2015. Without prejudice to the
primary contentions made in the Interlocutory Applications, viz, I.A. No.
2838/2015 and I.A. No. 2839/2015 in WP(C) No. 7745/2015, they
contended that the impugned notification dated 15-12-2015 disqualifying
them from the Membership of the Assembly is void ab-initio and are now
preferring this writ petition challenging the legality of the aforementioned
notification and orders purportedly passed by the respondent No. 2. The
order of the respondent No. 2 has been challenged on the ground of mala
fide, violation of the principles of natural justice and violation of the
various provisions of the Rules, which resulted in grave miscarriage of
justice. The petitioners are, therefore, seeking the intervention of this
WP (C) No. 9/2016 Page 12 of 54
Court by way of this writ petition to quash the impugned order dated 15-
12-2015 disqualifying them under Tenth Schedule to the Constitution of
India and the notification dated 15-12-2015 issued by the respondent No.
3 in connection therewith.
12. Opposing the writ petition, the respondent No. 1 (Nabam Rebia) and
the respondent No. 6 (Rajesh Tacho) filed their respective affidavits raising
preliminary objections against the maintainability of the writ petition. The
respondent No. 1/2 submits that the writ petition is liable to be dismissed
inasmuch as the petitioners produced a false and fabricated document
such as the impugned speaking order of disqualification before this Court
and that the copy of the impugned order filed before this Court was
interpolated especially in Paragraph 2 and that 14 original orders have
been filed before this Court by the respondent No. 2 on 07-01-2016. The
respondent No. 1/2 further contends that the writ petition could not be
heard without impleading the Chief Whip of Arunachal Pradesh Congress
Legislature Party, who was the complainant and who is, therefore, a
necessary party. According to the answering respondent, the petitioners
have suppressed the following material facts :
a) The letter dated 04-11-2015 signed by all of them and addressed
to the Governor wherein they have opposed the policies of the
Government headed by their own party and in fact demanded the
interference of the Governor for taking action;
b) The petitioners had meeting with the Governor on 15-12-2015
along with 11 MLAs of the BJP and 2 Independent MLAs and
sought his intervention to ensure compliance of his orders dated
09-12-2015 knowing fully well that the INC Party as well as the
Government was opposing the said order and decided not to
comply with the same being illegal and unconstitutional;
c) They addressed a representation to the Governor on 28-12-2015,
which was signed by the 11 MLAs of BJP and 2 Independent
MLAs seeking dismissal of the Government and imposition of
President Rule in the State of Arunachal Pradesh;
WP (C) No. 9/2016 Page 13 of 54
d) These facts ought to have been disclosed in the writ petition as
they clearly show that they were not adhering to the directions of
the party and were indulging in anti-party activities and thereby
voluntarily given up their Membership of the Party;
e) They stood disqualified for their conduct in writing to the
Governor in support of the claim of the petitioner No. 13 when he
made a claim to the Chief Minister of the State of Arunachal
Pradesh despite the fact that he is not the leader of the
Arunachal Pradesh Congress Legislature Party and especially
when the Legislature Party has elected Sri Nabam Tuki as the
leader of Congress Legislature Party;
f) The petitioners especially the petitioner No. 13 stood disqualified
the moment he took oath as the Chief Minister of the State of
Arunachal Pradesh against the directions of the Congress
Legislature Party;
g) As the petitioners did not make candid disclosure of relevant and
material facts, they are guilty of misleading the Court and their
petition should be dismissed at the threshold without
considering the case on merit.
13. It is also contended by the answering respondent that none of the
grounds raised by the petitioners in the writ petition could constitute a
defense under Article 191(e)(sic) read with Paragraph 2(1)(a) of the Tenth
Schedule to the Constitution of India; the order of disqualifications was
passed on 15-12-2015 and was in operation till 05-01-2016 before the
same was challenged on 04-01-2016 by the respondents and that the
grounds raised in the writ petition are mere technicalities and after
thoughts to avoid the order of disqualifications, which was incurred by the
respondents due to their anti-party activities and for defiance of the
policies of the party and the directives of Central Leadership which clearly
reposed faith in the leadership of petitioner No. 4 and rejected the claim of
the petitioner No. 13 to be the leader of Arunachal Pradesh Congress
Legislature Party. It is submitted that the Speaker, while acting under the
Tenth Schedule to the Constitution of India as quasi judicial authority is
playing a role, which is different from the role he plays in his capacity as
WP (C) No. 9/2016 Page 14 of 54
the Speaker of the Assembly and that the petitioners attracted the
disqualification on the ground of having voluntarily giving up Membership
of INC of which they were set up as a candidate for election as such
Member. It is false to allege that the petitioners were unaware of the order
of the disqualifications made by the respondent No. 2 and they in
coordination with 11 Members of BJP and 2 Independent Members sought
for and were not granted time till 11.40 p.m. on 15-12-2015 by the
Governor, who in his report dated 17-12-2015 apprised the President that
the 34 MLAs met the Governor by prior appointment and apprised him of
the orders passed by the Speaker. In any case, submits the answering
respondent, the meeting of these 14 MLAs along with other MLAs of BJP
and Independent MLAs with the Governor is enough to constitute a
disqualification under Paragraph 2(1)(a) of the 10th Schedule of the
Constitution of India in terms of the judgment of the Apex Court in
Rajendra Singh Rana & Ors. -vs- Swami Prasad Maurya & Ors,
reported in (2007) 4 SCC 270. The writ petition filed by the petitioners are
based on innuendos, conjecctures and surmises and that they were well
aware of the existence of 14 separate orders dated 15-12-2015 passed by
the Speaker as obvious from their conduct in the meeting they had with
the Governor on 15-12-2015 at 11.40 p.m.
14. It is denied by the answering respondent that the impugned order
passed by him is motivated by mala fide and based on extraneous political
consideration. He contends that the purported Session of the Assembly
held on 16th and 17th of December, 2015 was based on illegal and
unconstitutional order passed by the Governor on 09-12-2015. It is also
the case of the answering respondent that preponing the Assembly Session
from 14-1-2016 to 16-12-2015 by the Governor and directing him not to
alter the composition of the party position in the House in purported
exercise of his powers under Article 174 and 175 (2) of the Constitution of
India, is illegal and unconstitutional. According to the answering
respondents, the said orders of the Governor were part of a pre-conceived
plan, which the petitioners had hatched along with the Members of the
Opposition to topple the democratically elected Government led by the INC
Party in the State of Arunachal Pradesh. The petitioners were given ample
WP (C) No. 9/2016 Page 15 of 54
opportunity by the PCC Chief, Member of AICC, State in-Charge of
Arunachal Pradesh, the Chief Minister and the Chief Party Whip to comply
with the policies and the directives of the Central Leadership. They
continuously and persistently acted against the interest of the party and
defied the directives of the party leadership and supported the cause of the
opposition against the interest of the party. They were in touch with the
Members of the Opposition to conspire against the ruling National Party
and did not bother to attend the meetings of Congress Legislature Party in
spite of repeated invitations and advises by the Central Leadership.
Besides, they were also hobnobbing with the Governor and Members of the
opposition party to topple the Ministry, which is against the interest of the
party, which set them as candidate in the Legislative Assembly Election
held in 2014.
15. As far as the allegation regarding violation of the principles of
natural justice is concerned, the answering respondents submits that the
petitioners deliberately refused to accept the copies of the petition, which
were sought to be served upon them in pursuance of the notice issued by
him vide order dated 07-12-2015 and that the petitioners have been
avoiding service of the notice because they were aware that the Governor
had passed an order on 09-12-2015 preponing the Assembly from 14-01-
2016 to 16-12-2015 when they were planning to remove the Speaker. They
were simply avoiding the service so that the attempt to disqualify them
under the Provisions of Tenth Schedule could not succeed on 16-12-2015.
It is submitted by the answering respondent that the proceeding under the
Tenth Schedule is neither a trial in a Court of law or a departmental
proceeding against a Government employee, but proceeding against a
representative elected by the people and the Speaker holds the high
independent office. The answering respondent reminds this Court that
judicial review against the proceedings before the Tribunal/Speaker is
limited and that the Tribunal can draw an inference from the conduct of
the Members as to whether they have incurred the penalty of
disqualification. The application of principle of natural justice is flexible
and should not be cast in a rigid mode, and cannot be put in a legal
straitjacket. According to the answering respondent, the petitioners
WP (C) No. 9/2016 Page 16 of 54
deliberately and consciously did not appear before the Speaker on 14-12-
2015 and 15-12-2015 to seek an opportunity of hearing or deny the
allegations made in the disqualification petition; on the contrary, they
deemed it proper to visit Raj Bhavan seeking redressal of their grievances
against him. It is submitted by the answering respondent that having
opted to take a particular route, it is not open to them to blame him for
disqualifying them on 15-12-2015. It is pointed out by the answering
respondent that the petitioner No. 14 in the writ petition filed before this
Court himself passed an order on 15-12-2015 quashing his (answering
respondent's) order, which is impugned in the present writ petition, while
the said order of the petitioner No. 14 is under challenge in WP(C) No.
7745/2015 along with other orders, which were stayed by the learned
Single Judge of this Court on 17-12-2015. It is also submitted by the
answering respondent that in his order dated 15-12-2015, he had recorded
his satisfaction that the petitioners voluntarily gave up their Membership
of the party and, as such, their contention that his order is in violation of
the provision of disqualification rules is perverse. The answering
respondent denies that his order is vitiated by perversity and is made in a
hot haste thereby rendering his disqualification order perverse. The
petitioners did not even acknowledge the notice of the petition, much less,
seek time for filing their comments even though the answering respondent
is empowered to grant further time if so required by them. When the
petitioners chose not to participate in the proceedings and made a
conscious choice to avail of other remedies available to them, they cannot
have any legitimate grievance if he proceeded against them ex-parte and
pass the impugned order of disqualifications.
16. At this stage, it may be noticed that in so far as the acceptance of
the resignation letters of the two MLAs, namely, Sri Wanglam Sawin and
Sri Gabriel Denwang Wangsu by the answering respondent is concerned,
his order has been upheld by this Court in its order dated 12-01-2016,
which was subsequently affirmed by the Apex Court and, as such, this
issue has no relevance any more. According to the answering respondent,
notices were issued upon the petitioners, who were in Delhi at that time
and were well aware of the fact that such petitions had been filed and had,
WP (C) No. 9/2016 Page 17 of 54
in fact, instructed their respective staff not to receive such notices.
Services were, therefore, avoided whereupon he was satisfied that the
refusal to accept service of notice by the petitioners was deliberate and
intentional. The answering respondent denies that no individual including
the Legislators were allowed to enter the Assembly building premises on
16th, 17th and 18th of December, 2015 and categorically asserts that they,
in fact, attended the office and further asserts that the petitioner No. 14
attended the office and passed the order dated 15-12-2015 revoking the
disqualification of the petitioners including himself.
17. The answering respondent contends that deliberate avoidance of
service of notice by the petitioners amounts to deemed service and that no
special circumstances could be shown by them as to why presumption
under Section 114 of the Evidence Act should not be drawn against them.
The answering respondent categorically asserts that the action and
conduct of the petitioners clearly demonstrate that they were well aware of
the issuance of notice on 07-12-2015, or of the attempt to serve the notices
(which were refused) on 09-12-2015 for the hearing on 14-12-2015 or of
the final order being passed against them on 15-12-2015. According to the
answering respondent, the plea taken by the petitioners of violation of the
principles of natural justice is merely a façade to mislead this Court. It is
further submitted that the Governor while sending the Message under
Article 175(2) of the Constitution of India cannot interfere with the power
of another constitutional authority, namely, the Speaker, vested in him by
the Tenth Schedule to the Constitution of India. The Speaker has no duty
to refer any issue regarding the Tenth Schedule to the Governor as he is
fully empowered by it to decide such dispute.
18. According to the answering respondent, each and every action of the
petitioners is corroborative of the facts that they have voluntarily given up
Membership of the Congress Legislature Party for the following instances
prior to the passing of the order of disqualification dated 15-12-2015
passed by the Speaker :-
WP (C) No. 9/2016 Page 18 of 54
a) In the months of September-October, 2015, the 11 MLAs of
BJP and 2 Independent MLAs alleged that the Government
headed by Chief Minister, Sri Nabam Tuki has been reduced
to minority and thereof the Government should be asked to
give a floor test;
b) On 04-11-015, the petitioners addressed a letter to the
Governor seeking his interference on the allegations made by
them against the Government of their own party.
c) Specific allegation was made by the leader of opposition in
Arunachal Pradesh State Assembly in his letter dated 12-11-
2015 addressed to the Governor that 21 MLAs were not
accepting the leadership of the respondent No. 4 and had
defied the party whip and the Government had therefore
reduced to minority.
d) The Governor in his report dated 19-11-2015 clearly recorded
the names of the Legislators, who had attended the meeting,
which clarified that both the BJP MLAs and the Governor
were aware of the dissident activities and the dissident MLAs
who did not attend the meeting.
e) The report dated 19-11-2015 of the Governor clearly recorded
that Sri V Narayansami, AICC, In-Charge of Arunachal
Pradesh declared that Sri Nabam Tuki as undisputed leader
and claimed the Government is 100% stable. He termed that
the absence of 21 dissident MLAs in CLP meeting as an act of
indiscipline.
f) The respondent did not attend the three CLP meetings dated
08-11-2015, 17-11-2015 and 03-12-2015 and even though
they were invited on each and every occasion and that the 21
MLAs collectively signed one letter and denounced his
legitimacy as the leader of the Congress Legislature Party. It
was a gross misconduct and defiance of the party policies
that in spite of AICC General Secretary Sri V Narayanasamy
and Secretary Dr. K Jai Kumar making it clear that they
support the leadership of the respondent No. 4 and having
expressed strong exceptions to the dissident activities of the
WP (C) No. 9/2016 Page 19 of 54
petitioners. That the respondents continued to act in a
manner detrimental to the interest of the party on whose
symbol they had contested and won the legislative Assembly
Election.
g) It was the decision of the Congress Legislature Party and of
the decision of the Central Leadership that they would oppose
the order dated 09-12-2015 passed by the Governor, but by
attending the meeting dated 15-12-2015 with the Governor
seeking his intervention for holding the 6th Session of the
Arunachal Pradesh Assembly on 16th and 17th December,
2015. They attracted the vice of disqualification under the
10th Schedule.
19. These are the sum and substance of the case of the respondent No.
1. The respondent No. 6 (Sri Rajesh Tacho), who is the Chief Whip of the
Congress Legislature Party, Arunachal Pradesh Assembly, separately filed
his affidavit-in-opposition; he is the one who filed the complaint dated 07-
12-2015 urging the respondent No. 2 to disqualify the petitioners. The
complaint was filed by him on the instructions of, and after consulting, the
party High Command communicated though Sri V Narayanasamy, AICC-
in-Charge of Arunachal Pradesh and after getting clearance from the
President of AICC. He submits that the petitioners are guilty of
suppression of material facts and obtained the interim order from this
Court on 5th and 7th January, 2015 by manipulation, which alone
disentitled them any interim relief. On going through the other contents of
this affidavit, I find that the case set up by the respondent No. 6 is in pari
materia with the case projected by the respondent No. 1 and, as such, it is
not necessary to refer the contents of his affidavit in detail for the sake of
brevity. The basic contentions raised by him are that all attempts were
made by the Speaker (respondent No. 2) to cause service of notice upon
each of the petitioners, but they deliberately avoided the service with a
view to frustrate the proceeding for disqualifying them as Members of
Legislative Assembly and, as such, it cannot be said that they were not
given an opportunity of hearing before issuing the disqualification order by
the respondent No. 2 and that the conduct of the petitioners, which were
WP (C) No. 9/2016 Page 20 of 54
already described in detail by the respondent No. 2 in his affidavit-in-
opposition, constitute a clear case of defection, which attracts the wrath of
disqualification under the Tenth Schedule to the Constitution of India. He,
therefore, submits that there is absolutely no illegality or procedural
impropriety in the action of the respondent No. 1 in disqualifying the
petitioners, and the writ petition, being devoid of merit, is liable to be
dismissed.
20. On perusing the materials on record and after hearing the learned
senior counsel appearing for the rival parties, we are of the view that the
core issues in this writ petition are as follows:
1) Whether the impugned orders of disqualification in respect of
the 14 petitioners were issued by the respondent No. 1 without
giving reasonable opportunity of hearing to the petitioners? If
so, what is the effect of such omissions?
2) Whether the impugned disqualifications contravened the
provisions of Rules 6, 7 and 8 of the Arunachal Pradesh
Legislative Assembly (Disqualification on Grounds of Defection)
Rules, 1987 ("the Rules" for short)? If so, what will be the
consequence of such contraventions?
3) Whether, on the facts and circumstances of the case projected
by both the parties in their respective pleadings, the Speaker
was correct in holding that the petitioners had voluntarily
given up their membership of the Legislative Assembly
warranting their disqualification under Article 191(2) of the
Constitution read with paragraph 2(a) of the Tenth Schedule
thereto?
21. Unfolding his case, Mr. Rakesh Dwivedi, the learned senior counsel
for the petitioners, submits that no copy of the complaint filed by the
respondent No. 6 ("the complaint" for short) before the respondent No. 1 for
disqualifying the petitioners as members of the Assembly was ever served
upon each of them as evident from the body of the impugned order; the
impugned order was passed ex-parte without complying with the rules of
WP (C) No. 9/2016 Page 21 of 54
natural justice thereby rendering them unable to defend themselves before
their disqualification. This, according to the learned senior counsel, is in
contravention of Rule 7(3) of the Rules, which is a mandatory provision, the
violation thereof is sufficient to quash the impugned orders of
disqualification. It is his contention that the contents of para 7 of the
complaint itself would demonstrate that the respondent No. 1 himself was
aware of the fact that the petitioners were at the relevant time in New Delhi
seeking the intervention of the Central Congress Leadership, but he
proceeded to issue notice to each of the petitioners at their Itanagar
residences, which reveals that the respondent No. 1 had a pre-conceived and
pre-determined agenda to deny an opportunity to the petitioners to defend
themselves; there cannot be any presumption that the petitioners were
staying at their respective residences at the time the process server went to
serve the notice and it was for the respondent No. 2 to think of a suitable
mechanism for communicating the notice to each of the petitioners so that
they could reply to such notice. He further submits that the Rules does not
contemplate pasting of the notice at the residential wall of the petitioners
assuming but not admitting that such pasting was done by the process
server. He maintains that the order of the respondent No. 1 does not contain
any satisfaction as required under Rule 7(4) to the effect that he would avail
of the alternative to proceed to determine the question of disqualification
himself without referring the complaint to the Committee. It is also his
contention that the mandate of affording reasonable opportunity of hearing
to the Members of the Legislative Assembly to defend themselves provided
for under Rule 7(7) of the Rules has been given a go by on non-existent
grounds nor were copies of the orders contemplated under Rule 8(1)(b) of the
Rules ever served upon the petitioners except the petitioner No. 4, who had
collected the same on his own, thereby negating the rules of natural justice.
The learned senior counsel forcefully submits that it is not necessary for this
Court to examine the case on merit, and it may first consider the question
as to whether the impugned orders of disqualification have been issued by
the respondent No. 1 without hearing the petitioner and if the answer is
YES, the need for deciding the case on merit will stand obviated. Proceeding
further, the learned senior counsel submits that once it is found by this
Court that principles of natural justice have been violated by the respondent
WP (C) No. 9/2016 Page 22 of 54
No. 1 in issuing the impugned orders of disqualification, it is not necessary
to probe further as to whether prejudice has been caused to the petitioners;
non-observance of natural justice is by itself sufficient proof of prejudice.
Inasmuch as the impugned orders of disqualification were passed without
observing principles of natural justice, they are a nullity and must be
quashed.
22. According to the learned senior counsel, there is no such thing as
empty formality theory; no tribunal can reasonably hold that the case of the
defendant would make no difference even if an opportunity of hearing is
given to him. In support of his contentions with respect to violation of
principles of natural justice, the learned senior counsel draws support from
the following decisions of the Apex Court:- (i) Bakchandra L. Jarkihli and
others v. B.S. Yeddyurappa and others, (2011) 7 SCC 1; (ii) D.
Sudakhar (2) and others v. D.N. Jeevaraju and others, (2012) 2 SCC
708; (iii) M/s RB Shreeram Durga Orasad and Fatehchand Nursing Das
v. Settlement Commission (IT & WT) and another, (1989) 1 SCC 628; (iv)
Gorkha Security Services v. Government (NCT of Delhi) and others,
(2014) 9 SCC 105; (v) SL Kapoor v. Jagmohan and others, (1980) 4 SCC
379; (vi) Ravi S. Naik v. Union of India and others, 1994 (2) SCC 641
and (vii) Jagjit Singh v. State of Haryana and others, (2006) 11 SCC 1.
The learned senior counsel, therefore, submits that the impugned orders of
disqualification issued without observing principles of natural justice, being
a nullity, cannot be sustained in law and is liable to be quashed. According
to the learned senior counsel, the only course of action open to this Court is
to refrain from deciding the case on merit by itself, but to leave it for the
decision of the Speaker, who is vested by the Constitution with the
jurisdiction to decide as to whether the petitioners have incurred the wrath
of disqualification under Article 191(2) read with the Tenth Schedule to the
Constitution. Supplementing the submission of the learned senior counsel,
Mr. PK Tiwari, the learned senior counsel for the petitioners, contends that
what the respondent No. 2 did in the instant case such as his half-hearted
approach in the manner of causing service of notice upon the petitioners at
Itanagar when he clearly knew from the contents of para 7 of the complaint
statements to deny defense to the petitioners clinchingly prove that he was
WP (C) No. 9/2016 Page 23 of 54
practicing fraud while proceeding with the disqualification case and fraud,
therefore, vitiates impugned orders of disqualification passed by him. He
relies on Indian National Congress (I) v. Institute of Social Welfare and
others, (2002) 5 SCC 685 and Shrisht Dhawan (Smt) v. M/s Shaw
Wallace, (1992) 1 SCC 534 to fortify his submission. He, therefore,
submits that the impugned order cannot stand and is liable to be quashed
even without hearing the case on merit.
23. Refuting the contentions of the learned counsel for the petitioners,
Mr. PK Goswami, the learned senior counsel for the respondent No. 2
contends that the case cannot be decided only on the basis of violation of
principles of natural justice; assuming but not admitting that there is
violation thereof and that the respondent No. 2 is ready to prove that the
petitioners No. 1 to 14 have voluntarily given up their membership of the
Assembly within the meaning of Article thereby rendering observance of
natural justice inconsequential. In any case, contends the learned senior
counsel, when the petitioners were deliberately avoiding service of notice in
order to frustrate the disqualification proceedings against them, the
respondent No. 1 has no alternative but to proceed with the proceedings,
which resulted in the impugned orders of disqualification. He maintains that
principles of natural justice are flexible rules and are not cast in a rigid
mode and cannot be put in a legal straitjacket, more so, when
disqualification proceedings involving elected representatives of the people
cannot be equated with a civil or criminal trial or even departmental
proceeding. According to the learned senior counsel, the petitioners
deliberately and consciously chosen not to appear before the respondent No.
1either on 14-12-2015 and 15-12-2015 to seek an opportunity of hearing or
for contesting the complaint against them and instead they opted to
approach Raj Bhajan seeking redressal of their grievance against the
respondent No. 1. It is the contention of the learned senior counsel that
having opted to take the Raj Bhavan route, it is now not open for the
petitioners to blame the respondent No. 1 for having disqualified them on
15-12-2015; their very conducts disentitle them to any discretionary relief
from this Court, which is, after all, a court of equity. Having himself
quashed the impugned orders of disqualification, argues the learned senior
WP (C) No. 9/2016 Page 24 of 54
counsel, the petitioner No. 10 is barred from filing this writ petition. Finally,
referring to the conducts of the petitioners adumbrated in the counter of the
respondent No. 1, the learned senior counsel maintains that from the
undisputed facts and circumstances of the case, only one conclusion can be
drawn, namely, the petitioners have voluntarily given up membership of the
INC(I) thereby attracting the wrath of disqualification, and if only one such
conclusion can be drawn, no prejudice could conceivably be caused to them,
only on the proof thereof that the impugned orders of disqualification can be
interfered with by this Court. He, therefore, strenuously urges this Court to
dismiss the writ petition, which is devoid of merit. Though the learned
senior counsel argues on the merit of the case at length, I do not propose to
deal with such contentions as yet in view of disturbing development
following the production of the original records with respect to the impugned
orders of disqualification.
24. Before proceeding further, we may also record the submissions made
by Mr. M. Krishnamani, the learned senior counsel for the respondent 6
concerning non-observance of principles of natural justice. The learned
senior counsel reminds this Court that the justiciability of the order of the
Speaker is limited only to illegality, perversity, mala fide and procedural
improprieties; if the view taken by the respondent No. 1/2 is a reasonable
view, a writ court will not interfere even if another view is more reasonable;
the proceedings under the Tenth Schedule to the Constitution are not a
departmental enquiry for disciplinary action. He maintains that it was the
petitioners who avoided service of notice upon which the respondent No. 1/2
proceeded to hear the complaint and disqualified them; this is not a case of
no opportunity but is a case whether sufficient opportunity was granted to
the petitioners or not. When the facts are indisputable, and they lead to only
one conclusion, namely, the petitioners have voluntarily given up their
membership of the INC(I), where is the need for observance of natural
justice, he questions; this is a fit case where useless formality rules can be
invoked, after all, knowledge of the proceedings by the petitioners by itself
dispensed with notice. He maintains that non-hearing per se could cause no
prejudice and de facto prejudice shall have to be shown, which the
petitioners have miserably failed to do so in this case. According to the
WP (C) No. 9/2016 Page 25 of 54
learned senior counsel, the petitioners were held captives of the BJP at Delhi
- their addresses were unknown as they were not at Arunachal Bhavan -
attempts were, therefore, made to serve notices upon them at their Itanagar
bungalows where they normally reside, but their men chased out the
process server (P.K. Dutta), who submitted a report by affidavit to this effect;
there is thus effective service of notice upon each of the petitioners. It is his
submission that there may be cases where the law requires compliance with
principles of natural justice, but an irresistible conclusion can be drawn by
a Court that no prejudice has been caused to the delinquent and the non-
compliance is in regard to an action of directory nature; the instant case is
one where no prejudice is caused to any of the petitioners. He, therefore,
submits that there was no violation of principles of natural justice by the
respondent No. 1/2 before issuing the impugned order of disqualifications
and even if such procedural impropriety is found also, non-observance of
natural justice will not have material bearing on the case inasmuch as there
are unimpeachable evidence of series of revolting activities by the petitioners
depicting their drifting away from the Congress Party. To buttress his
contentions, the learned senior counsel relies on Kihoto Kilohan v.
Zachilhu & others, 1992 Supp(2) SCC 651; Jagjit Singh, (2006) 11 SCC
1; Biecco Lawrie Ltd. and another v. State of West Bengal and
another, (2009) 10 SCC 32; State Bank of Patiala and others v. SK
Sharma, (1996) 3 SCC 364; Competition Commission of India v. Steel
Authority of India Ltd., (2010) 10 SCC 744Prabin Ram Phukan and
another v. State of Assam and others, (2015) 3 SCC 605; Aligarh
Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529
and Dhannanjay Sharma v. State of Haryana and others, (1995) 3 SCC
757.
25. Mr. HS Paonam, the learned senior counsel for the respondent No. 4,
supplementing the submissions of the learned senior counsel for the
respondent No. 1/2 and the learned senior counsel for the respondent No. 4,
maintains that non-issue of notice or mistake in the issue of notice or
defective service of notice does not affect the jurisdiction of the respondent
No. 1/2, if otherwise reasonable opportunity of being heard has been given,
and it is only if prejudice has been caused by the non-issue or invalid
WP (C) No. 9/2016 Page 26 of 54
service of notice that the proceeding would be vitiated. He, however, goes on
to submit that irregular service of notice would not render the proceedings
invalid; more so, if the petitioners by their conduct have rendered service
impracticable or impossible. In the instant case, contends the learned senior
counsel, the conduct of the petitioners in avoiding service of notice upon
them or in instructing their men to chase out the Dak Runner have
undoubtedly rendered such service impracticable or impossible; the Speaker
was left with no choice but to hear the complainant and dispose of the same
resulting in the order of disqualifications, for which they have no legitimate
grievance to make. He draws support for his submission from
Commissioner of Sales Tax v. Subhash & Co., (2003) 3 SCC 454, Ashok
Kumar Sonkar v. Union of India and others, (2007) 4 SCC 54; M/s
Madan and co. v. Wazir Jaivir Chand, (1989) 1 SCC 264 and
Balachandra L. Jarkiholi v. B.S. Yeddyurappa, (2011) 7 SCC 1.
26. Article 191(2) of the Constitution says that a person shall be
disqualified for being a member of the Legislative Assembly or Legislative
Council of a State if he is so disqualified under the Tenth Schedule to the
Constitution. Both Article 191(2) of the Constitution and the Tenth Schedule
to the Constitution were introduced by the Constitution (Fifty-second
Amendment) Act, 1985. The Statement of Objects and Reasons of the 52nd
Amendment indicates that the amendment was introduced to combat the
growing menace of political defection in the country. This is what it said:
"The evil of political defections has been a matter of national
concern. If it is not combated, it is likely to undermine the very
foundations of our democracy and the principles which sustain
it. With this object, an assurance was given in the Address by the
President to Parliament that the Government intended to
introduce in the current session of Parliament an anti-defection
Bill. This Bill is meant for outlawing defection and fulfilling the
above assurance."
WP (C) No. 9/2016 Page 27 of 54
27. The provisions of the Tenth Schedule apply to members of either
House of Parliament or the State Legislative Assembly or, as the case may
be, either House of the Legislature of a State. Paragraph 2 of the Tenth
Schedule makes provisions for disqualification on the ground of defection.
Sub-paragraph (1) deals with a member belonging to a political party. It
provides for disqualification in two situations, viz., (i) if he has voluntarily
given up his membership of such political party; and (ii) if he votes or
abstains from voting in such House contrary to any direction issued by the
political party to which he belongs or by any person or authority authorised
by it in this behalf, without obtaining, in either case, the prior permission of
such political party, person or authority, and such voting or abstention has
not been condoned by such political party, person or authority within fifteen
days from the date of such voting or abstention. Paragraph 4 removes the
bar of disqualification on the ground of defection in a case of merger of a
political party with another political party. In sub-paragraph (1) of
paragraph 6 the question as to whether a member of a House has become
subject to disqualification under the Schedule is required to 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. As per the proviso, where the question
is as to whether the Chairman or Speaker, as the case may be, has become
subject to such disqualification, the question shall be referred to such
member of the House or decision as the House may elect and his decision
shall be final. Under sub-paragraph (2) of paragraph 6, all proceedings
under sub-paragraph (1) of paragraph 6 in relation to any question as to
disqualification of a member of a House under the Schedule are to 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. Paragraph 7 bars the jurisdiction of all courts in
respect of any matter connected with the disqualification of a member of a
House under the Schedule. Paragraph 8 empowers the Chairman or the
Speaker of a House to make rules for giving effect to the provisions of the
Schedule and such rules may provide for matters specified in clauses (a) to
(d) of sub-paragraph (1). At this stage, it may not be out of place to
reproduce the relevant portion of paragraph 2 of the Tenth Schedule, which
are as follows:
WP (C) No. 9/2016 Page 28 of 54
"Disqualification on ground of defection.--(1) Subject to the
provisions of paragraphs 2[* * *] 4 and 5, a member of a House
belonging to any political party shall be disqualified for being a
member of the House--
(a) if he has voluntarily given up his membership of such
political party; or
(b) if he votes or abstains from voting in such House
contrary to any direction issued by the political party to
which he belongs or by any person or authority
authorised by it in this behalf, without obtaining, in
either case, the prior permission of such political party,
person or authority, and such voting or abstention has
not been condoned by such political party, person or
authority within fifteen days from the date of such
voting or abstention.
Explanation.--For the purposes of this sub-
paragraph,--
(a) an elected member of a House shall be deemed to belong
to the political party, if any, by which he was set up as a
candidate for election as such member;"
28. Paragraph 8(1) of the Tenth Schedule empowers the Chairman or the
Speaker of a House to make rules to give effect to the provisions of the
Schedule. It is in exercise of the powers conferred by this paragraph that the
Speaker of the Legislative Assembly of the Arunachal Pradesh framed a set
of rules called "The Members of the Arunachal Pradesh Legislative Assembly
(Disqualification on Ground of Defection) Rules, 1987" ("the Rules" for
short). As our enquiry is presently limited to the issue concerning
observance of natural justice, I may refer to the relevant clauses of Rule 6, 7
and 8 of the Rules, which appear to be relevant for this case:
"6.(1) No reference of any question as to whether a member has
become subject to disqualification under the Tenth Schedule
WP (C) No. 9/2016 Page 29 of 54
shall be made except by a petition in relation to such member
made in accordance with the provisions of this rule.
(2) A petition in relation to a member may be made in writing to
the Speaker by any other member:
* * *
(3) The Secretary shall,─
(a) as soon as may be after the receipt of a petition under
the proviso to sub-rule (2), make a report thereof to the House;
and
* * *
7.(1) On receipt of a petition under rule 6, the Speaker shall
consider whether the petition complies with the requirement of
that rule.
(2) If the petition does not comply with the requirement of rule
6, the Speaker shall dismiss the petition and intimate the
petitioner accordingly.
(3) If the petition complies with the requirements of rule 6, the
Speaker shall cause copies of the petition and of the annexures
thereto to be forwarded,─
i. to the member in relation to whom the petition has
been made, and
ii. where such member belongs to any legislature party
and such petition has not been made by the leader
thereof, also to such leader, and such member or
leader shall, within seven days of the receipt of such
copies, or within such further period as the Speaker
may for sufficient cause allow, forward his
comments in writing thereon to the Speaker.
(4) After considering the comments, if any, in relation to the
petition, received under sub-rule (3) within the period allowed
(whether originally or on extension under that sub-rule), the
Speaker may either proceed to determine the question or or, if
he is satisfied, having regard to the nature and circumstances of
WP (C) No. 9/2016 Page 30 of 54
the case that it is necessary or expedient so to do, refer the
petition to the Committee for making a preliminary enquiry and
submit a report to him.
(5) The Speaker shall, as soon as may be after referring a
petition to the Committee under sub-rule (4), intimate the
petitioner accordingly and make an announcement with respect
to such reference in the House or, if the House is not then in
session, cause the information as to the reference to be
published in the Bulletin.
(6) Where the Speaker make the reference under sub-rule (4)
to the Committee, he shall proceed to determine the question as
soon as may be after receipt of the report from the Committee.
(7) The procedure which shall be followed by the Speaker for
determining any question and the procedure which shall be
followed by the Committee for the purpose of making a
preliminary inquiry under sub0rule (4) shall be, so far as may be,
the same as the procedure for enquiry and determination by the
Committee of any question as to breach of privileges of the
House by a member, and neither the Speaker nor the Committee
shall come to any finding that a member has become subject to
disqualification under the Tenth Schedule without affording a
reasonable opportunity to such member to represent his case and
to be heard in person.
* * *
8.(1) At the conclusion of the consideration of the petition,
the Speaker or, as the case may be, the member elected under
the proviso to sub-paragraph (1) of paragraph 6 of the the Tenth
Schedule shall, by order in writing,─
(a) dismiss the petition, or
(b) declare that the member in relation to whom the
petition has been made has become subject to disqualification
under the Tenth Schedule, and cause copies of the order to be
delivered or forwarded to the petitioner, the member in relation
WP (C) No. 9/2016 Page 31 of 54
to whom the petition the petition has been made and to the
leader of the legislature party, if any, concerned.
(2) Every decision declaring a member to have become subject
to disqualification under the Tenth Schedule shall be reported to
the House forthwith if the House in session, and if the House is
not in session, immediately after the House resembles.
(3) Every decision referred to in sub-rule (1) shall be published
in the Bulletin and notified in the official Gazette and copies of
such decision forwarded by the Secretary to the Election
Commission of India and the Government of Arunachal Pradesh."
29. Even a cursory look at the provisions extracted above will show that
principles of natural justice are sufficiently incorporated therein. Members
of Legislative Assembly are elected by the people in exercise of their
democratic right to choose their own rulers unlike the people in the banana
republics or some totalitarian States. The policy of the State is that even
though political defection should be frowned upon or eliminated altogether
from our polity, but in doing so, the member against whom a complaint is
lodged with the Speaker for such misconduct must be given an opportunity
of hearing before he is penalised with disqualification. The Rules framed by
the Speaker of the Arunachal Pradesh Assembly is intended to strike a
proper balance between the need to punish political defection on the one
hand and the requirement to give fair hearing to such member before
disqualifying him. It is now a well-settled proposition of law without
reference to cases that in the context of the introduction of sub-article (2) of
Article 102 and Article 191 of the Constitution, a proceeding under the
Tenth Schedule to the Constitution is one to decide whether a member has
become disqualified to hold his position as a Member of the Assembly on the
ground of defection. A proceeding under the Tenth Schedule gets started
before the Speaker only on a complaint being made that certain persons
belonging to a political party had incurred disqualification on the ground of
defection. In other words, there must be a complaint lodged without which
the Speaker has no suo motu power to take cognizance of the vice of
defection attracting the wrath of disqualification. To meet the claim so
WP (C) No. 9/2016 Page 32 of 54
raised, the member of the Assembly against whom the proceedings are
initiated has the right to show that that the party has merged with another
political party and hence the penalty of para 2 is not attracted. Thus, the
whole proceeding under the Tenth Schedule to the Constitution is initiated
or gets initiated as a part of disqualification of a member of the House. The
rules prescribed by various legislatures including the Arunachal Pradesh
Legislature contemplate the making of an application to the Speaker when
there is a complaint that some member or members have voluntarily given
up his membership or their memberships in the party. It is only then that in
terms of the Tenth Schedule, the Speaker is called upon to decide the
question of disqualification raised before him in the context of para 6 of the
Tenth Schedule. The Speaker has necessarily to decide that question of
disqualification as a Tribunal. In the context of such a claim against a
member to disqualify him, that member, in addition to a plea that he had not
voluntarily given up his membership of the Party or defied the whip issued to
him or that there has been a merger of his party with another party in terms of
para 4 of the Tenth Schedule. Call it a defence or whatever, a claim under
para 4 of the Tenth Schedule, is really an answer to a prayer for
disqualifying the member from the legislature on the ground of defection.
Therefore, in a case where a Speaker is moved by a legislature party or the
leader of a legislature party to declare certain persons disqualified on the
ground that they have defected, it is certainly open to them to plead that
they are not guilty of defection in view of the fact that there has been a
merger or that their conduct does not amount to voluntarily giving
membership of the political party. In that context, the Speaker cannot say
that he will first decide whether there has been a merger as an authority
and thereafter decide the question whether disqualification has been
incurred by the members, by way of a judicial adjudication sitting as a
Tribunal. It is a part and parcel of his jurisdiction as a Tribunal while
considering a claim for disqualification of a member or members to decide
that question not only in the context of the plea raised by the complainant
but also in the context of the pleas raised by those who are sought to be
disqualified that they have not incurred disqualification in view of a split in
the party or in view of a merger.
WP (C) No. 9/2016 Page 33 of 54
30. It is against the backdrop of the legal proposition enunciated above
that we propose to decide the question as to whether an opportunity of
hearing was indeed given to each of the petitioners before issuing the
impugned order of disqualifications. At this stage, however, it must be
noticed that there are allegations and counter allegations between the
parties that the speaking orders produced by the petitioners and the ones
produced by the respondents are forged/manufactured documents. To go to
the bottom of controversy, the original record of the respondent No. 2
pertaining to the disqualification proceedings was requisitioned by this
Court on 1-3-2016, and the same was produced by the respondent No. 3 on
4-3-2016 under sealed cover. The original record so produced makes an
interesting reading. As this record is likely to throw light on the dispute, we
reproduce the same hereunder in extenso:
"Arunachal Pradesh Legislative Assembly
*****
File No. LA/LEG-37/2015(PT) Subject Disqualification on the ground of defection A petition has been filed by Mr. Rajesh Tacho, Chief Whip of the Congress Legislature Party against the following members:
1. Shri Prem Khandu, MLA
2. Shri Kumar Wali, MLA
3. Shri Kameng Dolo, MLA
4. Shri Markio Tado, MLA
5. Shri Jarkar Gamlin, MLA
6. Shri P.D. Sona, MLA
7. Shri Mutchu Mithi, MLA
8. Shri Kamlung Mossang, MLA
9. Shri Phosum Khimhun, MLA
10. Shri W. Lowangdong, MLA
11. Shri T. Wangham, MLA
12. Shri Lombo Tayeng, MLA
13. shri Kaikho Pul, MLA
14. Shri T.N. Thongdok, MLA Notice be issued to all the above members to appear before the undersigned on 14th December, 2015 at 10.30 hrs in the Office Chamber at Legislative Assembly Secretariat, Naharlagun.
Accordingly, notices to the Hon'ble Members signed for immediate dispatch.
WP (C) No. 9/2016 Page 34 of 54Illegible 07/12 ( Nabam Rebia) Speaker 07th Deember, 2015.
Secretary, LA -2- Nobody present today neither received any reply. Put up for consideration/further order on 15-12-2015.
Sd/ Illegible 14/12/15 Arunachal Pradesh Legislative Assembly Secretariat, Naharlagun.
File No. LA/Leg-27/2015 Dated 15th
December, 2015.
Sub:- Disqualification of MLA's under Rule-3 Sub-Rule 7 of the Members of Arunachal Pradesh Legislative Assembly Disqualification on Ground of Defection Rules, 1987.
Notes & Order May like to re-call letter received from Hon'ble Chief Minister and Leader of CLP, Vide No.-CM9 (A.P)-10/2015, Dated 7th December 2015. Regarding Disqualification on the ground of Defection along with the said letter the following document has been enclosed.
1) A copy of the Petition. (Page-4C)
2) A copy of circular issued by President, APCC. (Page-14 to 38C)
3) Letter issued by General Secretary, AICC. (Page-47 to 68C) Submitted for further order please.
Notes at above. All the relevant papers enclosed below for the further order Pl.
Sd/- Illegible 15-12-2015 May endorse file to H.S. for necessary order.
Sd/- Illegible 15-12-2015 2 WP (C) No. 9/2016 Page 35 of 54 Ref. note at pre-page The letter addressed to HS by HCM and Leader of CLP and its enclosures including Petition submitted by Shri Rakesh Tacho, Chief Whip of Congress Legislature Party, Arunachal Pradesh Legislative Assembly, Naharlagun for disqualification of 14 members of Sixth Legislative Assembly for anti-party activities under 10th Scheduled of Constitution of India has been examined. All the relevant documents in support of the petition are enclosed for kind consideration by HS. The power to disqualify of a member and/or of group of members are vested to Speaker under the provision of Arrticle 191of the Constitution of India and Rules framed under Tenth Schedule of Constitution of India namely Arunachal Pradesh Legislative Assembly (Disqualification of grounds of Defection) Rules, 1987.
As stated above, Hon"ble Speaker may, on being satisfied himself, pass necessary order as deem fit.
Sd/- Illegible
(M. Lasa)
15/XII/15
Secretary, (LA)
I have carefully perused the records for disqualification of 14 (Fourteen) Members of Sixth Legislative Assembly placed before me by the Secretary, Legislative assembly. I have also carefully gone through the issues raised by the CLP Leader and the Chief Minister. I have carefully examined all the papers submitted to me by Shri Rajesh Tacho, Chief Whip of Congress Party.
On going through the ecords and all metrials placed before me by the Petitioner Shri Rajesh Tacho, Chief Whip and DO letter of CLP leader under Article 191(2)(a) and rules framed under Tenth Schedule of Constitution of India, namely, Arunachal Pradesh (Disqualification on the Ground fof Defection) Rules, 1987, I am fully satisfied with the points raised therein and I find that this is a fit case for disqualification of 14 (fourteen) Members, namely.
1. Shri Pema Khandu, MLA, 3-Mukto (ST) Assembly Constituency.
2. Shri T.N. Thongdok, MLA, 5-Kalaktang (ST) Assembly Constituency
3. Shri Kumar/Wali, MLA, 8-Bameng (ST) Assembly Constituency
4. Shri Kameng Dolo, MLA, 12-Pakke-/Kessang(ST) Assembly Constituency.
5. Shri Markio Tado, MLA, 20-Tali(ST) Assembly Constituency
6. Shri Jarkar Gamlin, MLA, 31-Along East(ST) Assembly Constituency
7. Shri P.D. Sona, MLA, 33-Mechuka(ST) Assembly Constituency
8. Shri Lombo Tayeng, MLA, 39-Mebo(ST) Assembly Constituency.
9. Shri Mutchu Mithi, MLA, 43-Roing(ST) Assembly Constituency
10. Shri Kaikho Pul, MLA, 45-Hayuliang Assembly Constituency.
11. Shri Kamlung Mossang, MLA-50 Miao(ST) Assembly Constituency WP (C) No. 9/2016 Page 36 of 54
12. Shri Phosum Kimhun, MLA-52 Changlang South (ST) Assembly Constituency.
13. Shri Wanglin Lowangdong, MLA, 57-Boduria-Pumao Assembly Constituency
14. Shri T. Wangham, MLA, 59-Longding-Pumao(ST) Assembly Constituency.
Given under my seal & Signature
Sd/- (Nabam Rebia)
Speaker
December 15,
2015.
Secretary/LA
Illegible
15/12/15
Addl. Secy Sd/- Illegible
15/12/15
U/s (Leg) Sd/- Illegible
15/12/15
SO(Leg) Sd/- Illegible
15/12/15
Hon'ble Speaker Notes & Order notification is placed below for approval/signature plse.
S(L) Sd/- Illegible
15/12/15 For approval and sign Pl.
U/s (L) Sd/- Illegible
15/12/15
Arunachal Pradesh Legislative Assembly
Speaker"s Cell
Subject: Sitting Arrangement in the House
14(fourteen) Members who have been disqualified from the Membership are not entitle to seat in House and take part in the proceeding of House any more.
Please ensure that sitting arrangement are made accordingly.
Sd/- Illegible
(Nabam Rebia)
December 15,
2015
Secretary, LA
Sd/- Illegible 15/12/15
Hon'ble Speaker's order at above. Accordingly a notification is placed below for approval and signature plse.
For approval and sig pl."
31. The orders and notings extracted in the foregoing are reproduced from the original record produced by the respondent No. 3 WP (C) No. 9/2016 Page 37 of 54 (Secretary/Arunachal Pradesh Legislative Assembly). Though a desperate attempt is made by the learned senior counsel appearing for the respondent No. 2 to persuade us to hold that the order dated 15-12-15 found in the original record cannot be taken as the final order as revealed by the subsequent noting which said that "Hon'ble Speaker Notes and order notification is placed for approval/signature plse". According to the learned senior counsel, the main orders of disqualification were separately issued, which were produced before the Apex Court. We have carefully gone through the so-called orders, which are fourteen in number, and examination of these orders cannot persuade us to hold that these orders really form a part of the said original record. We say so because the orders placed before the Apex Court are, in the first place, undated and, in the second place, are not even endorsed to anyone including the petitioners. It may also be noticed that there is no reference at all to these orders in the original record/file produced by the respondent No. 3 before this Court. In these orders, it was sought to be made out that notices were sent to each of the petitioners through Sh. P.K. Dutta, Dak Runner of the Assembly, but they were not present at their residences and the Dak Runner was chased out as indicated by him in the affidavit to that effect filed by him. Now, a perusal of the original file again will reveal that no such affidavit is found therein nor was any mention thereof made by the respondent No. 2 in his order. All the notings in the original file also did not make any whisper of statement about the filing of such affidavit by the Dak Runner. Under such circumstances, we find force in the submission of the learned senior counsel for the petitioners that the 14 orders produced before the Apex Court on 18-2-2016 in connection with SLP(C) No. 779-780 of 2016 are false and fabricated documents. In our opinion, there is no other order apart from the order dated 15/12/2015, which is in the nature of a composite order, found in the original file whereby the respondent No. 2 disqualified the petitioners for voluntarily giving up their membership of the Indian National Congress(I).
32. We have read and re-read the composite order of disqualifications and the previous notings of the respondent No. 2 and other officials of the Assembly, which form a part of the said original file to find out as to WP (C) No. 9/2016 Page 38 of 54 whether there is any evidence to show that notice was ever sent to each of the petitioners before issuing the composite order of disqualification, but in vain. The composite order was preceded by the order dated 7-12-2015 of the respondent No. 2 which said that notice should be issued to all the members to appear before him on 14-12-2015 at 10-30 hrs (10.30 AM or 10.30 PM?) in his Office Camber at the Legislative Assembly Secretariat. The record further reveals that no mention is made about the service of notice upon any of the petitioners between 7-12-2015 and 14-12-2015, when the respondent No. 2 noted that nobody was present on that day nor did he receive a reply. He then proceeded to order that the matter be put up on 15-12-2015 for consideration/further order. On the fateful day, i.e. 15- 12-2015, one of the officials of the Assembly put up the "Notes & Order"
suggesting "to re-call" (recall?) letter received from the Hon'ble Chief Minister and Leader of CLP, Vide No.- CM(A-P)-10/2015 dated 7th December 2015 and enclosing therein the following documents 1) a copy of Petition, 2) A copy of the circular issued by President, APCC and 3) Letter issued by General Secretayr, AICC. Thereafter, another noting referring to the said notes remarked that all the relevant papers were enclosed thereunder for further order. The note was thereafter apparently endorsed to the Speaker. At this stage, it may be observed that not a single service report of the Dak Runner is to be found or mentioned in those notings. Nor is there any evidence to show that any attempts was made to issue notices upon the petitioners nor were such notices actually handed over to the Dak Runner for service either. Coming back to the earlier narrative, the matter was placed before the respondent No. 3 before it reached the respondent No. 2. The respondent No. 3 acknowledged the receipt of those enclosures and placed the same before the respondent No. 2 for his consideration and at same time remarked that the respondent No. 2 had the power under Article 191 of the Constitution to disqualify the petitioners and that he might pass necessary order as deemed fit. This was followed by the composite order disqualifying all the petitioners in a single stroke of pen.
33. It may be noted that in the said composite order, the respondent No. 2 had simply observed that he carefully perused the record for disqualification of the 14 Members of the Sixth Legislative Assembly, which WP (C) No. 9/2016 Page 39 of 54 was placed before him by the respondent No. 3, as well the issue raised by the respondent No. 4. He also remarked that he had examined all the papers submitted to him by the respondent No. 6. He then proceeded to record that on going through the records and all materials placed before him by the complainant (respondent No. 6) under Article 191(2)(a) (sic) and rules framed under Tenth Schedule of the Constitution of India, namely, Arunachal Pradesh (Disqualification on the Ground of Defection) Rules, 1987, he was fully satisfied with the points raised therein and held that that was a fit case for disqualification of the petitioners. On the basis of such satisfaction, the respondent No. 2, therefore, passed the composite order of disqualification of the petitioner from the membership of the 6th Legislative Assembly of the Arunachal Pradesh. It is interesting to note that from the notings of the original file commencing from 7-12-2015, it is evident that the respondent No. 2 did not even bother to record that the complaint/petition complied with the requirements of Rule 7) of the Rules or caused copies of the complaint and of the annexures thereto to be forwarded to the member against whim complaint has been made, etc. or ever consider the question as to whether to refer the complaint to the Committee for making a preliminary inquiry and submitting a report to him nor did he publish in the Bulletin or notify in the official Gazette his decision of disqualification of the petitioners. That apart, which is more important, there is not an iota of evidence to show that notice was issued or served upon any of the petitioners. Even if notices were served upon or were actually received by the petitioners also, whether it would be possible for them to appear before the respondent No. 2 when he by the note dated 14/12/15 requested the Home Minister of the State to provide full proof security in and around the Assembly building w.e.f. 15-18 December, 2015 and not to allow the MLAs to enter the Assembly building premises on 15th, 16th, 17th and 18th December, 2015, which request was promptly acted upon by the Home Minister by endorsing it to Superintendent of Police, City. With the kind of direction coming from their political bosses, it is naïve to think that a police officer would defy such an order (even if the order is illegal); it must be remembered that the respondents were still the Government of the day at that time. True, the S.P./Capital by his letter dated 15-12-2015 sought clarification from the respondent No. 3 as to under what provision of WP (C) No. 9/2016 Page 40 of 54 law/rules, MLAs could be debarred from entering the House premises, but then there is also no evidence to establish that such an attempt was made by the petitioners despite such an order, but the SP did not allow them to enter the House premises. In any case, this is no substitute for proof of service of notice upon any of the petitioners or to prove that the latter knew the initiation of disqualification proceedings against them by the respondent No. 2. It is, however, the contention of the learned senior counsel for the respondent No. 2 that when there is enormous evidence of the petitioners hobnobbing with the Governor, who undoubtedly knew the notice for their removal, which prompted him to issue the order for not altering the composition of the House, it is unthinkable that they were never aware of the notices issued upon them. In our opinion, such conclusion cannot be drawn by this Court inasmuch as there is no evidence of service of notice upon each of the petitioners. There is, therefore, considerable force in the submission of the learned senior counsel for the petitioners that no duty is cast upon the petitioners to enquire as to whether notices were issued upon them by the respondent No. 2 or not.
34. Thus, on going through the original file, the inference is irresistible and the conclusion inescapable that no notice was ever served upon any of the petitioners nor was any genuine attempt made by the respondent No. 2 to serve such notices upon them. As already noticed, the notings/orders found in the file between 7-12-2015 and 15-12-2015 are conspicuous by the absence of any step taken by the respondent No. 2 or his office to effectuate service of notice upon any of the petitioners. The next question to be determined now is what is the legal position about notice or non-notice or defective notice and what will be the legal consequence of non-service of notice or improper service of notice? To answer these questions, it will be profitable to quote from the decision of the Apex Court in CST v. Subhasi & Co., (2003) 3 SCC 454. This is what it said in paragraph 16, 17, 18, 19, 20, 21 22, 23, 24 and 25 of the judgment:
"16. "Notice", in its legal sense, may be defined as information concerning a fact actually communicated to a party by an authorised person, or actually derived by him from a proper source, or else WP (C) No. 9/2016 Page 41 of 54 presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. Dictionary further states: Co Lit 309 Tomlin's Law Dictionary
17. Notice is making something known, of what a man was or might be ignorant of before. And it produces diverse effects, for, by it, the party who gives the same shall have the same benefit, which otherwise he should not have had; the party to whom the notice is given is made subject to some action or charge, that otherwise he had not been liable to; and his estate in danger of prejudice.
18. "Notice is a direct and definite statement of a thing as distinguished from supplying materials from which the existence of such thing may be inferred." (Per Parke, B. Burgh v. Legge 1)
19. The dictionary gives some other definitions of "notice" as:
-- The legal instrumentality by which knowledge is conveyed, or by which one is charged with knowledge.
-- The term "notice" in its full legal sense embraces a knowledge of circumstances that ought to induce suspicion or belief, as well as direct information of that fact.
-- In its popular sense "notice" is equivalent to information intelligence, or knowledge.
20. In Anandji Haridas and Co. (P) Ltd. v. S.P. Kasture 2 it was observed as follows: (AIR pp. 575-76, para 23) "23. We are unable to accept the contention of Mr Gokhale that a notice under Section 11(4)(a) or 11-A(1) is a condition precedent for initiating proceedings under those provisions or that it is the very foundation for the proceedings to be taken under those provisions. The notice contemplated under Rule 32 is not similar to a notice to be issued under Section 34(1)(b) of the Income Tax Act, 1922. All that Sections 11(4) and 11-A(1) prescribe is that before taking proceedings against an assessee under those provisions, he should be given a reasonable opportunity of being heard. In fact, those sections do not 1 (1989) 5 M&W 418 : 8 LJ Ex 258 : 151 ER 177 2 AIR !968 SC 565 : 21 STC 326 WP (C) No. 9/2016 Page 42 of 54 speak of any notice. But Rule 32 prescribes the manner in which the reasonable opportunity contemplated by those provisions should be afforded to the assessee. The period of 30 days prescribed in Rule 32 is not mandatory. The rule itself says that 'ordinarily' not less than 30 days' notice should be given. Therefore, the only question to be decided is whether the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given.
Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11-A had expired, they brought that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from 1-2-1953 till 31-10-1955. We are unable to agree with Mr Gokhale's contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices give the appellants the reasonable opportunity contemplated by Sections 11(4)(a) and 11-A(1). In Chatturam v. CIT 3 the Federal Court held that any irregularity in issuing a notice under Section 22 of the Income Tax Act, 1922 does not vitiate the proceeding; that the income tax assessment proceedings commence with the issue of the notice but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the Income Tax Officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income 3 (1947) 15 ITR 302: AIR 1947 FC 32 WP (C) No. 9/2016 Page 43 of 54 Tax Act which are the charging sections. Section 22 and others are the machinery sections to determine the amount of tax. The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from 1-2-1953 to 31-10-1955."
21. Whenever an order is struck down as invalid being violative of principles of natural justice, there is no final decision of the case and, therefore, proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated. [See Guduthur Bros. v. ITO 4 and Supdt. (Tech. I), Central Excise v. Pratap Rai 5.] In CST v. R.P. Dixit Saghidar 6 it was held as follows: (SCC p. 325, para 5) "5. We are unable to subscribe to the view of the High Court. The aforementioned passage quoted from the Tribunal's order shows that the Tribunal was of the view that once the order is quashed by the Assistant Commissioner, he could not in law remand the case for a decision afresh. As has been noted, before the Assistant Commissioner the counsel for the respondent had contended that the ex parte order should have been set aside because no notice had been received. When principles of natural justice are stated to have been violated it is open to the Appellate Authority, in appropriate cases, to set aside the order and require the assessing officer to decide the cases de novo. This is precisely what was directed by the Assistant Commissioner and the Tribunal, in our opinion, was clearly in error in taking a contrary view."
This view is clearly applicable to the facts of the present case.
22. The emerging principles are:
(i) Non-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing 4 (1960) 40 ITR 298 : AIR 1960n SC 1326 5 (1978) 3 SCC 113 : 1978 SCC (Cri) 371 : 1978 SCC (Tax) 149 : (1978) 114 ITR 231 6 (200) 9 SCC 324 WP (C) No. 9/2016 Page 44 of 54 officer, if otherwise reasonable opportunity of being heard has been given.
(ii) Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard.
(iii) If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid; more so, if the assessee by his conduct has rendered service impracticable or impossible.
(iv) In a given case when the principles of natural justice are stated to have been violated it is open to the Appellate Authority in appropriate cases to set aside the order and require the assessing officer to decide the case de novo.
23. In the instant case, the learned Single Judge and the Division Bench have not considered the question of prejudice, grant of reasonable opportunity in the aforesaid perspective.
24. In view of what has been stated in R.P. Dixit case 6 learned Single Judge was justified in directing de novo assessment by an order of remand. The direction was appropriate as the only ground on which the interference was made related to the violation of principles of natural justice by alleged improper service of notice. The Division Bench was not justified in upsetting the direction. The appeal is allowed but in the circumstances without any order as to costs.
25. We however make it clear that no opinion has been expressed by us on any aspect except limitation. It shall be open to the assessee to raise all other issues before the assessing officer which shall be considered in the proper perspective and in accordance with law."
35. As already noticed, there is absolutely no evidence to show that any notice was ever served upon any of the petitioners. Therefore, the instant case is one where it can truly be said that this is a case of non-issue of notice and not a mistake in the issue of notice or defective service of notice. Though Rule 7(3) of the Rules does not say so in many words, the fact that WP (C) No. 9/2016 Page 45 of 54 the Speaker is required to serve copies of the complaint together with its annexures to the member goes to show that the concept of reasonable opportunity of hearing is imported therein. To give reasonable opportunity of hearing, notice must be served upon the member being made subject to disqualification. This is made clear by the Apex Court in Ravi S. Naik v. Union of India and others, 1994 Supp(2) SCC 641, where it observed that principles of natural justice have an important place in modern administrative law. They have been defined to mean "fair play in action". They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but shared in common by all men. An order of an authority exercising judicial or quasi-judicial functions passed in violation of the principles of natural justice is procedurally ultra vires and, therefore, suffers from a jurisdictional error. After all, in a case where the Speaker is moved by a legislature party or leader of a legislature party to declare certain person disqualified on the ground of defection, it is always open to him to take the plea that he has not given up membership of the party or defied the whip or that there has been a merger. It will, therefore, be presumptuous on the part of the Speaker, before hearing him, to jump to the conclusion that a case for disqualification has been made out. It is part and parcel of his jurisdiction as a Tribunal while considering a claim for disqualification of a member or members to decide that question not only in the context of the plea raised by the complainant but also in the context of the pleas raised by those who are sought to be disqualified that they have not incurred disqualification in view of a merger or their actions do not amount to voluntarily giving up membership of the party which elected them. That is the reason why in spite of the finality imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject to judicial review on the ground of non-compliance with rules of natural justice. But while applying the principles of natural justice, it must be borne in mind that "they are not immutable but flexible" and they are not cast in a rigid mould and they cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case.
WP (C) No. 9/2016 Page 46 of 54*36. In the view that we have taken that this is a case of non-service of notice to any of the petitioners, the course of action open to us, as suggested by Mr. Rakesh Dwivedi, the learned senior counsel for the petitioners, appears to be to quash the impugned order of disqualifications and remand the case to the Speaker of the Assembly for fresh consideration by him in accordance with law. Mr. PK Goswami, the learned senior counsel for the respondent No. 2 as well as Mr. M. Krishnamani, the learned senior counsel for the respondent No. 6 and Mr. HS Paonam, the learned senior counsel for the respondent No. 4, vehemently oppose such course of action. It is their submission that as the present Speaker is one of the 24 dissident MLAs along with the petitioners herein, he cannot be expected to be impartial or free from bias; this will be tantamount to an appeal from Caesar's wife to Caesar. They argue that in the event of the present Speaker adjudicating the cases of his colleagues belonging to the dissident group, grave miscarriage of justice is inevitable, which must be prevented by this Court. Mr. Rakesh Dwivedi, the learned senior counsel, however, submits that when the jurisdiction to decide disqualification cases is conferred upon the Speaker of the Assembly alone by the Constitution, this Court has no jurisdiction to appoint any other authority to decide such a dispute; to do so would be re- writing the Constitution, which is absolutely impermissible. To remove any apprehension of partiality/bias in the minds of the respondents in such adjudicatory process, this Court may very well direct the respondent No. 2 to constitute a Committee in accordance with Rule 7(4) of the Rules for making preliminary enquiry and submit a report to him. To counter this, Mr. PK Goswami, the learned senior counsel argues that when the facts in this case are indisputable and only one conclusion is deducible therefrom, namely, the petitioners have voluntarily given up their membership of INC(I) and have in the process incurred the wrath of disqualification under paragraph 2(a) of the Tenth schedule to the Constitution, it is not at all necessary or justified for this Court to remand it to the Speaker but to uphold the impugned order of disqualifications and dismiss the writ petition. The principles of natural justice should not be expanded in such a manner as to make the application of the principles a mockery.
WP (C) No. 9/2016 Page 47 of 54*37. Having given our anxious consideration to the rival submissions made by the learned senior counsel, we are of the view that we cannot certainly uphold the impugned disqualification orders, which have become a nullity for violation of principles of natural justice. In our opinion, the apprehension of the respondents that they are not likely to get justice from the Speaker is clearly misconceived. It must not be overlooked that the current Speaker of the Assembly, namely, Shri Wangki Lowang, is not subject to disqualification though he is one of the members of dissident group along with the petitioners. That being factual position, he has become the only authority empowered by paragraph 6(1) of the Tenth Schedule to decide to the questions as to disqualification of the petitioners on the ground of defection. If he himself were subject to disqualification, the question of invoking the proviso to paragraph 6(1) of the Tenth Schedule will arise. For better appreciation of this issue, it will be apposite to refer to paragraph 6 of the Tenth Schedule, which is in the following terms:
"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 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."
*38. True, relegating the disqualification question to the current Speaker may give rise to the possibility of bias on his part and may not be the ideal solution, yet we must not overlook the constitutional provision of vesting such adjudicatory power only to him, who is required to function as a Tribunal exercising quasi-judicial powers. In the constitutional scheme of WP (C) No. 9/2016 Page 48 of 54 this nature, we have no alternative but to consider the question of invoking the doctrine of necessity. This doctrine came up for consideration before the Apex Court in State of UP v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276, and was decided in the following manner:
"12. It is not in dispute that the Lok Ayukta was the disciplinary authority. The power to impose punishment on the appellant vested only in him. When the Lok Ayukta appointed one Shri S.K. Arora, a retired Director of Defence Estate, an objection thereto was taken by the appellant himself stating that no person from outside should be appointed as the inquiry officer. In the aforementioned situation, the Lok Ayukta had no other option but to take upon himself the burden of holding the departmental proceedings. The appellant, therefore, cannot be permitted to raise any contention that the disciplinary proceeding should have been conducted by some other officer. It has not been contended that any other officer working in the office of the Lok Ayukta was available for conducting such enquiry.
13. It is true that the principle of natural justice is based on two pillars: (i) nobody shall be condemned without hearing; and (ii) nobody shall be a judge in his own cause.
14. It is, however, well known that the principles of natural justice can be excluded by a statute. They can also be waived.
15. In a case where doctrine of necessity is applicable compliance with the principles of natural justice would be excluded.
16. Referring to the doctrine of necessity, Sir William Wade in his Administrative Law stated:
"But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down."
It was further stated:
"In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then WP (C) No. 9/2016 Page 49 of 54 no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament."
17. In M.P. Special Police Establishment v. State of M.P. 1 a Constitution Bench of this Court observed that as the office of the Lok Ayukta is held by a former Judge of this Court, it would be difficult to assume that such authority would give a report without any material whatsoever. Although no law was laid down in this behalf, but, evidently those observations are pointers to show that normally a report from such a high officer should not be disbelieved.
18. It is not that the Lok Ayukta was not inclined to get the matter inquired into by an outsider. He appointed one Shri S.K. Arora. It is the appellant himself who raised an objection thereagainst. He categorically stated that no outsider should be appointed as an inquiry officer although he took a different stand in his first show- cause. He, therefore, waived his right. (See Manak Lal v. Dr. Prem Chand 2 SCR at p. 586.)
19. In the aforementioned situation, the Lok Ayukta had no other option but to proceed with the inquiry. Despite the fact that he was the disciplinary authority himself, as well as a witness, he had no other option but to inquire into the charges against the appellant. Furthermore the appellant did not deny or dispute, as noticed hereinbefore, the recovery of the documents from the almirah. In that view of the matter, it was for the appellant, who had knowledge about the documents and which had been kept by him in the almirah, to show that as to how he had dealt with the same. He being the Private Secretary was a man of confidence. He was bound to follow the 1 (2004) 8 SCC 788 : 2005 SCC (Cri) 1 2 1957 SCR 575 : AIR 1957 SC 425 WP (C) No. 9/2016 Page 50 of 54 prevailing practice. It was his duty to place all the complaints and letters received from other departments before the Lok Ayukta. The office of a Lok Ayukta is of great importance. People approach the Lok Ayukta with various grievances. They require urgent enquiry. It is not difficult to presume that only because such complaints were received, a practice developed that no almirah should be kept under lock and key. The appellant must be presumed to have knowledge thereabout. Despite the same he had put his almirah under lock and key. He refused to hand over the key when called upon to do so. He did not cross-examine the only witness who was available. He also did not examine himself. He did not examine any defence witness. He did not show any remorse and in that view of the matter, in the peculiar facts and circumstances of the case, we are of the opinion that it cannot be said that the order of punishment passed by the Lok Ayukta suffered from any infirmity."
*39. In view of the mandate of the Constitution, it is thus impermissible for us to by pass the Speaker as the adjudicatoy authority to decide the dispute arising out of the complaint/petition lodged by the respondent No.
6. In fairness, however, we should not simply assume that the Speaker would be partial in exercising his adjudicatory function as the Parliament has reposed faith in him to be fair; sometimes, responsibility may also change the perspective of a functionary like the current Speaker. Nevertheless, to allay the apprehension of the respondents, the Speaker shall have to constitute a Committee as contemplated by Rule 7(4) of the Rules. As we decide to quash the impugned disqualification orders for non- observance of principles of natural justice, we do not think it necessary to deal with the merit of the case or refer to the numerous decisions of the Apex Court cited by the counsel, especially by Mr. P.K. Goswami, the learned senior counsel for the respondent No. 1/2 as they mostly relate to the merit of the case. The preliminary objection raised by the respondents stands overruled as violation of principles of natural justice strikes at the root of the case.
WP (C) No. 9/2016 Page 51 of 54*40. The offshoot of the foregoing discussion is that this writ petition succeeds. The impugned order of disqualifications dated 15-12-2015 found in the original record and the official Gazette Notification dated 15-12-2015 issued by the respondent No. 2 are hereby quashed. Necessarily, the so- called disqualification orders both bearing dated 15-12-2015 produced by the petitioners and the respondents respectively are to be treated as non-est, and are, therefore, declared inoperative having no force of law. Consequently, we issue the following directions:
1) the Speaker shall constitute a Committee under Rule 7(4) of the Members of the Arunachal Pradesh Legislative Assembly (Disqualification of Ground of Defection) Rules, 1987 within the next 15 days to make preliminary enquiry on the complaint/petition of the respondent No. 6.
2) The Committee so constituted shall submit their report within one month thereafter from the date of their constitution.
3) On receipt of the report of the Committee, the Speaker shall determine the petition/complaint of the respondent No. 6 for disqualifying the petitioners on the ground of defection by taking into account the report of the Committee and in accordance with law after giving reasonable opportunity of hearing to both the petitioners and the respondent No. 6 within two month thereafter.
4) If the disqualification issue cannot be disposed of by the Speaker for reason(s) attributable to the act of omission or commission on the part of the Committee or of the Speaker or of the petitioners within the next three and half months in total as stipulated above, the impugned disqualification orders shall stand revived without further reference from this Court.
*41. Before parting, we feel it to be our duty to point out a thing or two warranted by the facts and circumstances of this case. The existing system of conferring power upon the Speaker of the Assembly or upon a member to WP (C) No. 9/2016 Page 52 of 54 be elected by the House where the Speaker has become the subject of disqualification, to decide the question of disqualification on the ground of defection under the Tenth Schedule to the Constitution has left much to be desired, can hardly result in a fair and just decision and has also given a go by to one of the two principles of natural justice, namely, bias. After all, the Speaker is likely to be elected with the support of the ruling party and may not, ipso facto, be free from bias, as we have experienced some of the time. What should then be the remedy? In our opinion, the time has now come for the Parliament to seriously think of amending paragraph 6 of the Tenth Schedule to the Constitution to take away the power of the Speaker to decide on the questions of disqualification on ground of defection and entrust it to an independent body to ensure impartial and effective decision. The Parliament may also seriously ponder the suggestion of one of our greatest parliamentarians, the late Madhu Limaye, who in his article in the Kolkata daily, The Telegraph, published sometime in 1985 when the Bill was under consideration in the Parliament. According to him, the main reason for defection being the lure of ministerial berth in the Government, the practical solution for eliminating the evils of defection does not lie in disqualifying a Member but in denying him a ministerial berth. The other alternative is to make the post of Speaker apolitical like in England where once he is so elected, he severs all kinds of relationship with his party and is re-elected unopposed. "Once a Speaker, always a Speaker" is the famous maxim in U.K. This can make him insulated from the rough and tumble of politics and decide the disqualification issue fairly and fearlessly. We are not unmindful of the fact that none of above options can ensure a fool-proof system, but when the existing dispensation has miserably failed us, the time has really come to explore other alternatives. In any case, the bottom line is that it is not really the system which fails us; it is rather the individuals who operate the system who fails us. After all, law can always be bent or circumvent to suit one's convenience. Nevertheless, we still hope and trust that the member so elected will rise to the occasion and come to an impartial decision on this issue so that the faith reposed in him by the Parliament is vindicated. Secondly, we have taken the liberty of citing some decision not cited at the bar, but we do not think this to be improper. This WP (C) No. 9/2016 Page 53 of 54 reminds us of the following observations of Lord Denning in the Discipline of Law, at p. 289 (Indian Reprint):
"Thus rebuked, I may as well make a confession. On many occasions I have done my own researches and given an opinion on matters on which the Court has not had the benefit of the arguments of counsel or of the judgment of the Court below. I have done this because vary much in their ability and I do not think that their clients should suffer by any oversight or mistake of counsel. If it is a new point or a new matter which could alter the outcome of the case, then the right course is to inform counsel and put the case in the list for further hearing. But if it is just the elaboration of existing points or matters, there is no such need - although I do know of one authority where the defendant failed on every point argued on their behalf, but succeeded on a new point which was taken by the Judges themselves after the argument was concluded. It was Shaw v. Great Western Rly. 1"
JUDGE JUDGE
*Substituted vide the order dated
01-04-2016 passed in I.A. No.
1305 of 2016.
Paul
1
[1894] 1 QB 373
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