Jharkhand High Court
Babulal Marandi vs Speaker on 17 December, 2020
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.3687 of 2020
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Babulal Marandi ... ... Petitioner
Versus
Speaker, Jharkhand Vidhan Sabha & Another
... ... Respondents
With
W.P.(C) No.3654 of 2020
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Bharatiya Janata Party through its Chief Whip (Main Opposition
Party) Sri Biranchi Narayan
... ... Petitioner
Versus
th
The Hon‟ble Speaker, 5 Jharkhand Vidhan Sabha & Others
... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. R. Venkataramani, Sr. Advocate
: Mr. R.N.Sahay, Sr. Advocate
: Mr. Indrajit Sinha, Advocate
: Mr. Yashwardhan, Advocate
For the Respondents : Mr. Rajiv Ranjan, Sr. Advocate
Mr. Manoj Tandon, Advocate
Dr. A.K.Singh, Advocate
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ORAL JUDGMENT
Order No. 06 : Dated 17th December, 2020 With consent of the parties, hearing of the both the writ petitions was done through video conferencing and there was no complain whatsoever regarding audio and visual quality.
2. Both the writ petitions have been listed under the heading for "orders with defect".
3. We have perused the office note dated 15.12.2020 as reported in W.P.(C) No. 3687 of 2020. The office has pointed out defect that the Respondent No.1, Hon‟ble Speaker, may not be made party, which defect has not been removed and further, no amended writ -2- petition has been received as yet.
4. Learned counsel for the petitioners has submitted that the defect no.3 which pertains to impleadment of the Speaker as Respondent No.1, may be ignored as the Speaker is necessary party in the proceeding since the notice has been issued by him in the capacity of quasi-judicial body.
5. Objection has been raised by the respondents.
6. We, after hearing the rival submissions of the learned counsel for the parties, are of the view that admittedly the Speaker, while acting under Tenth Schedule of the Constitution of India, is to exercise quasi-judicial power and since notice issued by the Speaker is under challenge, the Speaker being a necessary party, has been impleaded as the Respondent No.1.
In view thereof, the defect no.3 is ignored.
So far as amended writ petition is concerned, the same has been reported to be filed, as such, the said defect is also ignored.
So far as defect pointed out by the office in W.P.(C) No.3654 of 2020, Mr. R.Venkataramani, learned Senior Counsel appearing for the petitioner, assisted by Mr. Indrajit Sinha, learned counsel, has submitted that the said defect shall be removed but the matter may be heard keeping the fact into consideration that the relief sought for in W.P.(C) No.3654 of 2020 wherein the petitioner of W.P.(C) No. 3687 of 2020 who has been sought to be declared as the Leader of Opposition, has been directed to appear tomorrow at 12:00 noon.
7. This Court, taking into consideration the nature of defect as has been pointed out by the office, deems it fit and proper to hear -3- the matter subject to the direction for removing the defect within a week after the reopening of the Court after winter vacation as technicality should not come in the way of substantial justice.
8. These writ petitions were listed before the learned Single Judge of this Court having its roster to hear the matters. One interlocutory applications being I.A. No. 6200 of 2020 was filed in W.P.(C) No. 3687 of 2020 seeking leave to amend the writ petition for addition of relief for a declaration to hold Sub-Rule (1) of Rule-6 of the Jharkhand Vidhan Sabha Sadasya (Dal Parivartan ke Aadhar par Nirharta) Rules, 2006, hereinafter referred as the Rules, 2006, as ultra vires.
Learned Single Judge has heard the said interlocutory application on 15.12.2020 and allowed the prayer made therein with a direction upon the office to place the matter before the Division Bench of this Court as, after amendment having been allowed, the question of vires of Sub-Rule(1) of Rule 6 of the Rules, 2006 is required to be considered, as per the High Court Rules, by a Division Bench.
9. Thereafter, the matter has been assigned to this Court by the Chief Justice vide administrative order dated 15.12.2020 and thereby the matter came before this Court.
10. Likewise, in W.P.(C) No.3654 of 2020 by filing I.A. No. 6278 of 2020 similar relief for amending the prayer in the writ petition has been made which has also been allowed vide order dated 15.12.2020 and as such, the writ petition being W.P.(C) No. 3654 of 2020 has also been directed to be placed before the Chief Justice -4- for placing the matter before appropriate Bench.
11. The Chief Justice vide administrative order dated 15.12.2020 has directed to place the matter before the Division Bench. The cases were mentioned for its early hearing on account of the fact that the Speaker has fixed the case concerned for hearing on 18.12.2020 at 12 O‟ Clock. The mentioning was allowed and as such, both the matters have been listed under the appropriate heading.
The hearing of the matter has been done at this stage with the consent of the parties given after the matter was called out.
12. In W.P.(C) No. 3687 of 2020, the relief which was sought before aforesaid amendment pertains to quashing and setting aside the notice dated 18.08.2020 whereby and whereunder the Speaker, Jharkhand Vidhan Sabha has taken suo-moto decision that the subject is affected by Tenth Schedule of the Constitution of India and the petitioner was directed to produce evidences before him on 17.09.2020 by 01:00 PM.
Further, relief sought is to hold the impugned notice dated 18.08.2020 issued by the Speaker, Jharkhand Vidhan Sabha, without jurisdiction in view of the decision dated 06.03.2020 by the Election Commission of India. It has further been urged by way of relief that the operation of impugned notice may remain stayed during the pendency of the writ petition.
In W.P.(C) No. 3654 of 2020 a direction has been sought for quashing the letter No. 544(O) dated 18.08.2020 as also letter No.731(O) dated 02.11.2020 with a further direction to appoint Sri -5- Babulal Marandi as the Leader of Opposition of the 5th Jharkhand Vidhan Sabha.
By virtue of the amendment allowed by the learned Single Judge vide order dated 15.12.2020, further relief has been sought as discussed above.
13. The brief facts of the case as per the pleadings made in the writ petitions are that the writ petitioner in W.P.(C) No. 3687 of 2020, at the relevant time, was the Kendriya Adhyaksh (President) of Jharkhand Vikas Morcha (Prajatantrik), hereinafter referred to as JVM(P), a recognized and registered State Level Political Party by the Election Commission of India. A meeting of the Central Working Committee of JVM(P) was held on 11.02.2020 wherein it was resolved to merge the JVM(P) political party with Bhartiya Janta Party (hereinafter referred to as BJP), a national political party. Further, in a meeting of the Legislature Party of the JVM(P) held on 11.02.2020, it was unanimously resolved to merge JVM(P) with BJP.
In view of the aforesaid decisions, the President of JVM(P), the writ petitioner in W.P.(C) No. 3687 of 2020, had written a letter on 11.02.2020 to the Election Commission of India by enclosing the decision taken in the meetings dated 11.02.2020 by making a request to take steps as JVM(P) and its legislature party stand merged with BJP henceforth.
The Election Commission of India vide letter dated 06.03.2020 has informed regarding merger of JVM(P) with BJP. The fact about the merger has been brought to the notice of the Speaker, Jharkhand Legislative Assembly.
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The Speaker issued a notice on 18.08.2020 stating that he has come to believe that there is an issue affecting the Tenth Schedule of the Constitution of India and as such, the writ petitioner was directed to produce evidences himself or through Advocate on 17.09.2020.
The writ petitioner filed response raising the question of jurisdiction to the effect that the Speaker of the Jharkhand Legislative Assembly has no power to take suo moto cognizance to treat a case under Tenth Schedule of the Constitution of India as the constitutional mandate as under Tenth Schedule under Paragraph 6 thereof, the Speaker has only been conferred with the power to take decision on questions as to the disqualification on ground of defection if any question to that effect is referred. Though, in the case in hand no such issue has been referred by anyone for its adjudication, however, such power has been exercised by the Speaker in pursuance to the provision of Sub-Rule (1) of Rule 6 of the Rules, 2006 which confers power to the Speaker to take suo moto decision for determining the question of defection in view of the Tenth Schedule of the Constitution of India.
14. It has been contended by learned counsel for the petitioners that, since the suo moto power as has been exercised by the Speaker of the Jharkhand Legislative Assembly pursuant to the provision of the Rules, 2006, being in contradiction and inconsistent with the Paragraph 6 of Tenth Schedule of the Constitution of India, the validity of the aforesaid provision of Rules 2006 has been questioned subsequently by amending the writ petition. -7-
It has further been contended that, since the Speaker has suo moto taken cognizance to initiate a proceeding under Tenth Schedule of the Constitution of India by issuing a notice which is under challenge in both the writ petitions, which, according to the petitioners, is without jurisdiction being in the teeth of the constitutional mandate as enshrined under Paragraph 6 of the Tenth Schedule of the Constitution of India, it is a fit case in which this Court should interfere at this stage by passing an interim order keeping the notice in abeyance.
It has further been contended that the legality and propriety of the power conferred to the Speaker of the Jharkhand Legislative Assembly as under Sub-Rule (1) of Rule 6 of the Rules, 2006 is to be looked into by this Court. The issue which is to be decided herein is as to whether the provision of Rules, 2006 as under Sub-Rule(1) of Rule 6 is a correct law giving go-bye to the constitutional mandate since under Paragraph 6 of the Tenth Schedule of the Constitution of India no such power has been conferred upon the Speaker of the Legislative Assembly to take suo moto decision for consideration of issue of defection and in that view of the matter, the provision as contained in Sub-Rule (1) of Rule 6 is in the teeth of the constitutional mandate wherein no such power has been conferred upon the Speaker to take suo-moto decision to consider an issue of defection, rather the question is to be decided only on being referred to him.
It has further been contended that the application has been filed before the Speaker to give recognition about the merger of the -8- JVM(P) with the BJP and thereby appoint Sri Babulal Marandi as the Leader of Opposition of the 5th Jharkhand Vidhan Sabha but the said matter has been kept pending fairly for long period which cannot be said to be justified on the part of the Speaker, discharging the constitutional duty.
It has been contended that the notice impugned is vague and without any sufficient imputation and as such, it is difficult for the writ petitioner to furnish proper reply on merit.
Learned counsel appearing for the petitioners submit that the matter requires hearing since both the writ petitions are coming for the first time before this Bench but an interim order may be passed keeping the further proceeding as contemplated against the writ petitioner in W.P.(C) No. 3687 of 2020 in abeyance till the final decision of the writ petitions otherwise during the course of pendency of the writ petitions, there is every likelihood that the Speaker will proceed with the matter and the decision would be taken and in that view of the matter both the writ petitions would become infructuous and the writ petitioner in W.P.(C) No. 3687 of 2020 will suffer irreparable loss and injury since his membership of the Legislative Assembly is at stake.
It has further been submitted that no prejudice will be caused to the respondents if the further proceeding, as contemplated, be kept in abeyance, rather, if the interim order would not be passed keeping the further proceeding in abeyance, it will be prejudicial to the interest of the petitioner, therefore, the balance of convenience lies in favour of the writ petitioner.
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It has further been contended that the petitioner has been able to make out prima facie case in view of the fact any rule if inconsistent to the constitutional mandate, cannot over-ride the constitutional provision as has been done in the instant case.
15. Mr. Rajiv Ranjan, learned Senior Counsel has represented the Speaker, Jharkhand Legislative Assembly along with Mr. Manoj Tandon and Dr. A.K.Singh, learned counsel, has represented the respondent Election Commission of India.
16. Mr. Rajiv Ranjan, learned Senior Counsel has submitted that at this stage no interim order be passed as the petitioner has not been able to make out a prima facie case since whatever decision has been taken in issuance of notice upon the petitioner in W.P.(C) No. 3687 of 2020, the same is pursuant to the Sub-Rule(1) of Rule 6 of the Rules, which confers power upon the Speaker to take suo moto decision to initiate a proceeding under Tenth Schedule of the Constitution of India and so long as the provision of Sub Rule (1) of Rule 6 of the Rules, 2006 is not declared to be ultra vires, it cannot be said at this stage that the action taken by the Speaker is contrary to any statutory provision or any jurisdiction error is there.
It has been submitted that there is no jurisdictional error committed by the Speaker of the Assembly since the Speaker has exercised the power by issuing notice in view of the provision of Sub-Rule(1) of Rule 6 of the Rules, 2006 which has been enacted in pursuance to the provision of Paragraph 8 of the Tenth Schedule which confers power upon the Speaker to frame Rules. The vires of the aforesaid provision of the Rules is under challenge which
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requires adjudication by providing opportunity to the respondents.
The issue for consideration is as to whether it is fit case to grant interim relief at this stage or not?
It has been submitted that the writ petitioner in W.P.(C) No. 3687 of 2020 has already accepted the jurisdiction by submitting reply before the Speaker and thereafter raising an issue of jurisdiction is not available to the writ petitioner.
In support of his argument, learned Senior counsel has relied upon the judgment of Hon'ble Apex Court rendered in the case of Kihoto Hollohan v. Zachillhu and Others [1992 Supp (2) SCC 651] wherein under paragraph 110 and 111 it has been laid down that at the interlocutory stage the power of judicial review either by the High Court under Article 226 or Hon'ble Apex Court under Article 136 of the Constitution of India is not appropriate to be exercised rather it has been held that the power of judicial review in the matters pertaining to Tenth Schedule of the Constitution of India is to be exercised when the final decision is taken by the Speaker of the Legislative Assembly.
According to the learned counsel, the fact of the present case is also similar since the notice itself has been challenged, therefore, interference at this stage by this Court in exercise of power conferred under Article 226 of the Constitution of India will be in the teeth of the ratio laid down by the Hon'ble Apex Court in Kihoto Hollohan v. Zachillhu and Others (Supra).
17. We, having heard the learned counsel for the parties and going through the materials available on record, have gathered that
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the issue has been raised about the legality of the impugned notice dated 18.08.2020 as also the vires of provision of Sub-Rule (1) of Rule 6 of the Rules, 2006 has been questioned.
It is admitted fact that both these writ petitions are coming for the first time before this Court and no counter affidavit has been filed. Learned counsel for the petitioners have argued the matter for passing an interim order for keeping the proceeding initiated against the writ petitioner in W.P.(C) No. 3687 of 2020 in abeyance.
We have appreciated the rival submission on the issue of the interim order.
18. This Court, before proceeding to scrutinize the issue as to whether the interim protection is required to be given at this stage, deems it fit and proper to discuss about the principle of granting interim injunction/interim relief.
Grant of an interim relief with regard to the nature and extent thereof depends upon the facts and circumstances for each case as no straight jacket formula can be laid down.
Grant of temporary injunction has three basic principles; balance of convenience and irreparable injury which are required to be considered in a proper perspective in the fact and circumstances of a broad case. In Colgate Palmolive (India) Ltd vs. Hindustan Lever Ltd. reported in AIR 1999 SC 3105, the Hon‟ble Apex Court has delineated the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunction as under:-
(i) Extent of damages being an adequate remedy;
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(ii) Protect the plaintiff‟s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor;
(iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party‟s case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible.
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties‟ case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.
In Dalpat Kumar and Another vs. Prahlad Singh and Others reported in AIR 1993 SC 276, the Hon‟ble Apex Court has explained the scope of interim order i.e. The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man‟s ingenuity in given facts and circumstances, but always is hedged with sound exercise of
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judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves. It is well-nigh impossible to find from facts prima facie case and balance of convenience.
It is evident from the aforesaid principle laid down by Hon'ble Apex Court that the court hearing the application or petition for grant of injunction is required to see extent of damages being an adequate remedy, protect the plaintiff‟s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor, the Court while dealing with the matter ought not to ignore the factum of strength of one party‟s case being stronger than the others, no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible, the issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties‟ case, balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant and whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.
It requires to refer herein that the Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-second Amendment) Act, 1985 is meant for outlawing defection by debarring a defector. The said Bill was enacted into the Constitution (Fifty-second Amendment) Act, 1985.
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Paragraph 2 of Tenth Schedule of the Constitution of India relates to member of the House belonging to political party by which he was set up as a candidate for the election.
Paragraph 2 (2) deals with a member who has been elected otherwise than as a candidate set up by any political party and would incur disqualification if he votes or abstains from voting in the House contrary to any direction of the political party to which he belongs or by any person or authority authorised 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.
Paragraph 4 of the Tenth Schedule excludes the applicability of the provision of disqualification under paragraph 2 in case of merger of any political party in another political party.
Paragraph 6 of the Tenth Schedule is required to be referred herein which reads as under :-
"6. Decision on questions as to disqualification on ground of defection.--(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212."
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It is evident from the provision of Paragraph 6 which provides for taking decision on questions as to disqualification on ground of defection. If any such question arises as to whether a member of a House has become subject to disqualification under the Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final. 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.
It is, thus, evident that the Speaker is required to exercise the power for taking decision if question about disqualification is referred for such decision before him, meaning thereby, under the constitutional mandate no power has been conferred upon the Speaker to take suo moto decision for answering the question about disqualification under the Tenth Schedule of the Constitution of India.
19. The issue about power of judicial review in view of the provision of Article 122 or 212 of the Constitution of India has been dealt with by the Hon'ble Apex Court in Kihoto Hollohan v. Zachillhu and Others (Supra). At paragraph 110 and 111 it has been laid down as under :-
110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status
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of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.
111. In the result, we hold on contentions (E) and (F):
That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non- justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.
That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case [(1965) 1 SCR 413 : AIR 1965 SC 745] to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words „be deemed to be proceedings in Parliament‟ or „proceedings in the legislature of a State‟ confines the scope of the fiction accordingly.
The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence."
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It is evident from the proposition laid down by the Hon'ble Apex Court in the aforesaid case that the power of judicial review has strictly been barred under the provision of Paragraph 6 of the Tenth Schedule as has been interpreted by holding therein that the power of judicial review as conferred under the provision of Article 226 of the Constitution of India can be looked into after the final decision is taken by the Speaker of the House.
Therefore, it is evident that the power of judicial review can be exercised but under its limited scope i.e., if the order has been found to be passed on the violation of the constitutional mandates, mala fide, non-compliance with Rules of Natural Justice and perversity. However, exception of any interlocutory interference has also been laid down but only in the case of interlocutory disqualification or suspension which may have grave, immediate and irreversible repercussions and consequence.
The proposition as has been laid down under Paragraph 111 of the judgment rendered in the aforesaid case even at the interlocutory stage the interference can be made in exercise of power of judicial review but only in case of interlocutory disqualification or suspension which may have grave, immediate and irreversible repercussions and consequence.
20. There is no denial about the position of law that the constitutional mandate is binding upon all the parties. It is also not in dispute that any provision if inconsistent with the constitutional mandate, the constitutional mandate will prevail.
We are not expressing at this stage any final opinion on merit
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but whatever is being said that is for the purpose of considering the fact as to whether the writ petitioner has been able to make out a prima facie case for passing an interim order or not.
Since the constitutional mandate provides under Paragraph 6(1) of the Tenth Schedule that only on the ground of reference about the question of defection, the Speaker is to exercise its power but admittedly herein, there is no reference made by anyone, rather, the Speaker has taken suo moto cognizance although on the basis of the provision of Rule 6(1) of the Rules, 2006.
It is relevant to refer herein that before enactment of the Constitution of India, the provision of the Government of India Act, 1935 was in operation but after coming into effect of the Constitution with effect from 26th January, 1950, one provision has been made under Article 313 of the Constitution of India to save such provision of the Government of India Act, 1935 which is not inconsistent with the constitutional provision, meaning thereby, the constitutional mandate remained to be superior and ignoring the constitutional mandate and putting reliance upon the subordinate legislation may not be proper, therefore, the writ petitioner has been able to make out a prima facie case about jurisdictional error in issuing the notice by the Speaker on the basis of the provision of Rule 6(1) of the Rules, 2006.
Further, upon consideration of the notice, the same, prima facie, is found to be vague and as has been pleaded in the writ petition that the application has been filed for passing order by declaring Sri Babulal Marandi as Leader of Opposition of the 5th
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Jharkhand Legislative Assembly but as yet no order has been passed by the Speaker.
It is settled position of law that if any application is filed before any competent authority/body, the same has to be dealt with at an early date and keeping the matter pending, cannot be appreciated.
21. As has been observed by us hereinabove that the constitutional mandate is required to be considered above all the statutes across the country. Since under the provision of Paragraph 6(1) of the Tenth Schedule, the Speaker is required to act only on reference about the question of disqualification on ground of defection but notice issued against the writ petitioner in W.P.(C) No. 3687 of 2020, does not, prima facie, appears to be in consonance with the provision of Paragraph 6(1) of the Tenth Schedule of the Constitution of India which may be in consonance of the Rules framed by the Speaker validity of which quo the provisions of Tenth Schedule is under challenge, we are of the view that the writ petitioner has been able to make out a prima facie case about jurisdictional error in issuing the notice by the Speaker of the Legislative Assembly.
Further, the consideration is required to be made about the irreparable loss and balance of convenience in granting the interim relief to a party.
Herein, the notice has been issued to the writ petitioner in W.P.(C) No. 3687 of 2020 for appearance by initiating a proceeding under Tenth Schedule of Constitution of India while the writ petitioner is objecting about applicability of the provision of Tenth
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Schedule of the Constitution of India on the ground that the merger of JVM(P) with BJP has been ordered by the Election Commission of India but the said order has not been challenged by anyone. Basing upon such order, the writ petitioner in W.P.(C) No. 3687 of 2020 is claiming to be the member of the BJP but the same is being treated to be a case of defection.
Admittedly, the writ petitioner in W.P.(C) No. 3687 of 2020 is legislative member and if the further proceeding in pursuance to the impugned notice is not be stayed and during pendency of the writ petitions and in case the Speaker takes a final decision holding the writ petitioner to be disqualified from the membership, the same will lead to irreparable loss to him. The said action will be highly prejudicial to the interest of the writ petitioner but if there will be stay of the further proceeding during pendency of the writ petition, no prejudice will be caused to anybody, the Speaker being the adjudicatory authority and not any affected party. Thus, in our view, balance of convenience also lies in favour of the writ petitioner of W.P.(C) No. 3687 of 2020.
22. It is admitted fact, as has been held by Hon'ble Apex Court in Kihoto Hollohan v. Zachillhu and Others (Supra), that the power of judicial review is to be exercised after the final decision is taken by the Speaker if the order is found to be in violation of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity but as would appear from the proposition laid down at paragraph 111 of the said judgment, there is no complete embargo in exercising the power of judicial review even in the interlocutory
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stage, rather, the same can be exercised if the case of interlocutory disqualification or suspension which may have grave, immediate and irreversible repercussions and consequence. In the aforesaid proposition, the word "irreversible repercussions" and "consequence" are of paramount consideration as, if the membership of the writ petitioner would be cancelled by declaring him disqualified in exercise of power conferred under the Tenth Schedule of the Constitution of India by the Speaker, the same would have irreversible repercussion and consequence and, therefore, we are of the considered view that there is no complete embargo on exercising the power of judicial review even in the case of Kihoto Hollohan v. Zachillhu and Others (Supra).
In Keisham Meghachandra Singh v. Hon'ble Speaker Manipur Legislative Assembly and Others [2020 SCC OnLine SC 55], the Hon‟ble Apex Court has considered the judgment rendered in Kihoto Hollohan v. Zachillhu and Others (Supra) and by referring the proposition laid down at paragraphs 110 and 111 of the aforesaid judgment it has been observed that application if made before the Speaker, the same is to be decided within a reasonable period.
23. This Court, taking into consideration the law laid down by Hon'ble Apex Court in the case of Colgate Palmolive (India) Ltd vs. Hindustan Lever Ltd.(Supra) and Dalpat Kumar and Another vs. Prahlad Singh and Others (Supra) is of the considered opinion that the petitioner has been able to make out prima facie case and if the interim order would not be granted, the same will lead to
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irreparable loss and further, balance of convenience also lies in favour of the petitioner, therefore, is of the view that it is a fit case where the interim relief is required to be granted in favour of the writ petitioner in W.P.(C) No. 3687 of 2020.
Accordingly, let the further proceeding in pursuance to the notice dated 18.08.2020 as initiated against the writ petitioner in W.P.(C) No. 3687 of 2020, be kept in abeyance till the next date of hearing.
24. Learned counsel for the respondents are directed to file counter affidavit with respect to vires of provision of Sub-Rule (1) of Rule 6 of the Rules, 2006 before the next date of hearing so that the matter may be decided.
25. Notice is also issued to the Advocate General, State of Jharkhand. Mr. Rajiv Ranjan, learned Senior Counsel accepts notice being the Advocate General also.
26. This Court was intending to keep the matter for final hearing in the first week of January, 2020 itself, however, it has been urged on behalf of the respondents that more time would be required for filing the response to writ petitions. Accordingly, let the matters be placed on 13th of January, 2021. In the meanwhile, the parties are directed to exchange their respective affidavits well in advance.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad,J.) Birendra/ A.F.R.