Orissa High Court
Utkal Keshari Parida (In All) vs Speaker on 27 September, 2012
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) Nos.14868, 14869, 14870
and 14871 of 2012
In the matter of applications under Article 226 and 227 of the
Constitution of India.
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Utkal Keshari Parida (In all) ......... Petitioner
-versus-
Speaker, Orissa Legislative Assembly ......... Opp. Party
_______________
For petitioner : M/s.Gopal Agarwal and S. Lal.
For opp.party : M/s P. Acharya, S. Rath, B. Bhadra,
B.K. Jena and J.P. Parida.
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA
AND
THE HONOURABLE SHRI JUSTICE B.K.MISRA
Date of hearing & judgment : 27.09.2012
V.Gopala Gowda, C.J. Since common questions of fact and law are involved in
these writ petitions, they are heard together and disposed of by this common
order.
2. In these writ petitions, the petitioner, who is the President of
Odisha State Nationalist Congress Party, is before this Court seeking for
issuance of a writ of mandamus to the Speaker of the Odisha Legislative
Assembly directing him to dispose of the disqualification petitions filed by him
on 10.07.2012 against four members of the 14 th Odisha State Legislative
Assembly, who have joined in Biju Janata Dal (BJD) by invoking his power
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under para 8 of the Tenth Schedule of the Constitution of India read with the
Rules framed by him urging various facts and legal contentions.
3. Necessary brief facts are given hereunder for the purpose of
elucidating the rival legal contentions particularly the locus standi of the
petitioner to file the disqualification petitions in the backdrop of Rule 8 of the
Member of Orissa Legislative Assembly (Disqualification on Ground of
Defection) Rules, 1987, hereinafter referred to as "the Rules" in exercise of the
power under para 8 of the Tenth Schedule of the Constitution of India.
4. Learned counsel for the petitioner placing strong reliance upon the
10th Schedule of the Constitution of India submits that if any member of the
Legislative Assembly belonging to a particular political party is sought to be
disqualified for being a member of the house subject to para 4 and 5, the
Speaker shall exercise power under paragraph 6 read with the Rules that are
framed in exercise of power under paragraph 8 of the Tenth Schedule of the
Constitution of India and pass orders expeditiously. Learned counsel for the
petitioner has also placed reliance upon the judgment of the Supreme Court in
Rajendra Singh Rana and others V. Swami Prasad Maurya and others,
reported in (2007) 4 SCC 270, wherein the Apex Court has referred to the full
Bench decision of the Punjab and Haryana High Court in Prakash Singh Badal
V. Union of India, reported in AIR 1987 P & H 263. In the said case para 6 of
the Tenth Schedule to the Constitution of India fell for consideration before the
apex Court while referring to disqualification of the nominated member
enumerated in para 2 (1) and made an observation that some interested
person approaches the Speaker for declaring that the said member is
disqualified from being a member of the house and the claim is refuted by the
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member concerned. The power of Tenth Schedule upon the Speaker to do so
accrues only when he is called upon to decide the question referred to in para
6 of the Tenth Schedule. The observation made in the aforesaid paragraph of
the Supreme Court after referring to the relevant paragraphs 2 and 6 of the
Tenth Schedule clearly indicates that any person who is interested in the
disqualification to see that the Parliamentary democracy is given effect to and
the Rules that are framed in exercise of the constitutional power under para 8
of the Tenth Schedule must be in consonance with the object and intendment
of the Constitution but not to nullify the provisions of the Tenth Schedule of the
Constitution. Further he submits that Rule 6 (1) of the Rules framed by the
learned Speaker of the Legislative Assembly does not prohibit to file petitions
against the members of the Legislative Assembly, who have defected from
their party and joined in BJD. Rule 6 of the Rules framed must be given
interpretation to achieve the object and intendment of the Tenth Schedule.
Learned counsel for the petitioner sought to interpret Rule 6 (1) of the Rules by
placing reliance upon the judgment of the Supreme Court in the case of Dr.
Mahachandra Prasad Singh V. Chairman, Bihar Legislative Council and
others, reported in (2004) 8 SCC 747, wherein in paragraph 16, the Apex
Court had the occasion to interpret the Bihar Legislative Council Members
(Disqualification on Ground of Defection) Rules, 1994 in the backdrop of article
191 (2) and paras 2 (1) (a) and (b) of the Tenth Schedule. The Supreme Court
in paragraph 16 with reference to the Constitution Bench Judgment of the
Supreme Court reported in 1992 Supplementary (2) SCC 651 Kihoto
Hollohan V. Zachillhu has made observation that the purpose and object of
the Rules is to facilitate the job of the Chairman in discharging his duties and
responsibilities conferred upon him by para 6, namely, for resolving any
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dispute as to whether a member of the House has become subject to
disqualification under the Tenth Schedule. The Rule being in the domain of
procedure, are intended to facilitate the holding of inquiry and not to frustrate
or obstruct the same by introduction of innumerable technicalities. Being
subordinate legislation, the Rules cannot make any provision which may have
the effect of curtailing the content and scope of the substantive provision,
namely, Tenth Schedule. The aforesaid observation has been made by the
Supreme Court while interpreting similar Rules 6 and 7 of the Bihar Rules
referred to (supra). Paragraphs 2 and 6 of the Tenth Schedule and the
Constitutional provision of Article 191 of the Constitution has succinctly made it
clear that the Rules shall be in consonance with the constitutional provision of
Tenth Schedule and the same shall not be in derogation of the Tenth Schedule
to the Constitution of India. Therefore, learned counsel for the petitioner
submits that the petitioner has the locus standi to file the petitions and the
same are legally maintainable and the Speaker has the Constitutional
obligation to see that the petitions are taken up and heard and disposed of on
merit in exercise of powers under Rule 6 framed in exercise of para-8 of the
Tenth Schedule. The same view has been taken by the High Court of Karnataka
in the case of A.K. Subbaiah V. Chairman, Karnataka Legislative Council,
Bangalore and another, reported in AIR 2007 Karnataka 145. Both the
learned counsel appearing for the petitioner and learned Senior Counsel
appearing for the opposite party placed reliance upon the said judgment.
However, learned Senior Counsel submits that the said judgment of the
Supreme Court is sought to be distinguished for the reason that in the said
judgment the vires of the Karnataka Legislative Council (Disqualification of
Members on the Ground of Defection) Rules, 1986 was challenged wherein the
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learned Single Judge has held that the said Rule is ultra vires to the
Constitution. In the case in hand, the Rule is not challenged. Therefore, the
Rule is binding on the parties and shall be strictly adhered to whether the
petition is filed by a Member of the Legislative Assembly or a Leader of a
particular political party.
5. Learned counsel for the petitioner placing strong reliance on
paragraph 13 of the writ petition submits that even though more than one
month has passed after filing of the disqualification petitions, the learned
Speaker has not taken any action on the said petitions, thereby the object and
intendment of the Tenth Schedule, which was added by the Constitution (Fifty-
Second Amendment Act, 1985) have been frustrated. He further submitted that
the learned Speaker has to see that Parliamentary Democracy must function in
a healthier way and governance under the Constitution shall be given to the
people either by the Central Government or by the State Government as they
are required to govern the people strictly in conformity with the provisions of
Constitution and implement the law enacted by them and the State Legislature
is to see that the Constitutional philosophy and concepts to reach the common
people and therefore, he submits that due to the delay in not taking steps till
he approached this Court and thereby the object and intendment of Tenth
Schedule has been frustrated. No wild allegations have been made against the
learned Speaker in Para-13 as contended by the learned Sr. Counsel only the
petitioner is interested to see that the petitions filed by him, who is the
President of the Odisha State National Congress Party (NCP) get concluded and
order is passed by the learned Speaker in exercise of the power under para 6
of the Tenth Schedule.
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6. In reply to the averments made in the writ petition, a preliminary
objection has been filed on behalf of the opposite party. In paragraph 9 of the
said preliminary objection it is stated that the disqualification petitions were
filed by the petitioner on 10.7.2012 and the same were registered as
Disqualification Cases. The said case records were placed before the learned
Speaker on 24.07.2012. It is further stated that the Secretary of the Odisha
Legislative Assembly was busy in conducting Presidential Election poll in Odisha
Legislative Assembly from 10.7.2012 to 23.7.2012. Thereafter, order was
passed on 8.8.2012 by the learned Speaker to forward copies of the
Disqualification Petitions to the Members of the House, who are alleged to have
incurred disqualification. After receipt of the said petition, the concerned
Members sought for time till 30.09.2012 but the learned Speaker allowed time
till 26.9.2012. It is further submitted that after the monsoon session of the
House was over on 7.9.2012, the learned Speaker as per the pre-schedule
programme proceeded to attend the 58th Commonwealth Parliamentary
Conference at Colombo, Srilanka and post conference tour to Japan, South
Koria and Russia from 10th to 24th September, 2012 as per the programme
under Annexure-A filed to preliminary objection. Learned Senior Counsel has
referred to Article 191 (2) and Sub-Rule (1) of Rule (6) of the Rules which
provides that no reference of any question as to whether a Member has
become subject to disqualification under the Tenth Schedule, shall be made
except by a petition in relation to such a Member made in accordance with the
provision of the rules. A petition in relation to a Member may be made in
writing to the Speaker by any other Member of the Legislative Assembly and in
the instant case the petition is not filed by the Member of the Legislative
Assembly. Therefore, the petitioner has no locus standi to file the said
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disqualification petitions. As per the learned Senior Counsel the writ petitions
are liable to be rejected on this ground. In support of the said contentions he
has placed reliance on the decisions of the Constitution Bench of the Supreme
Court in the case of Mayawati v. Markandeya Chand and others, reported
in AIR 1998 SC 3340, Rajendra Singh Rana (supra) and Shri Kihota
Hollohon v. Mr.Zachilhu and others, AIR 1993 SC 412 (para 42). Therefore
he submits that the present writ petitions are not maintainable and are liable to
be rejected.
7. With reference to the aforesaid rival factual and legal contentions,
the questions that arise for consideration in the present case are:-
(i) Whether the disqualification petitions filed by the petitioner
under Article 191 read with paragraph 2 of the Tenth
Schedule of the Constitution read with Rule 6 of the Rules
before the learned Speaker are maintainable?
(ii) To what order
8. To answer the first point it would be necessary to refer to para 2
and para 6 of the Tenth Schedule which read thus :-
"2. Disqualification on ground of defection- (1)Subject to
the provisions of paragraphs 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 be belongs or by any person or authority
authorized 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
8
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;
(b) Xx x xx xx
(2) An elected member of a House, who has been elected as
such otherwise than a candidate set up by any political
party shall be disqualified for being a member of the
House, if he joins any political party after such election.
Xx xx xx xx xx"
"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.
9. It is an undisputed fact that in exercise of para 8 of the Tenth
Schedule, learned Speaker of the Legislative Assembly has already framed the
Rules referred to supra. Rule 6 of the Rules which is relevant for our
consideration reads as follows:-
"6. (1) No reference of any question as to whether a Member
has become subject to disqualification under the Tenth
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Schedule 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;
Provided that a petition in relation to the Speaker shall be
addressed to the Secretary.
10. Para 8 of the Tenth Schedule clearly states that subject to the
provisions of sub-paragraph (2), the Chairman or the Speaker of a House may
make rules for giving effect to the provisions of the Schedule. The Tenth
Schedule does not provide who is entitled to file petition. This aspect is no
longer res integra in view of the Full Bench decision of the Punjab and Haryana
High Court, which has been referred to by the Supreme Court in Dr.
Mahachandra Prasad Singh (supra). It would be necessary to quote the
relevant paragraph, i.e., paragraph 16 of the said judgment which reads thus:-
"16. Sub-rule (1) of Rule 6 says that no reference of any
question as to whether a member has become subject to
disqualification under the Tenth Schedule shall be made except
by a petition in relation to such member made in accordance
with the provisions of the said rule and sub-rule (6) of the
same rule provides that every petition shall be signed by the
petitioner and verified in the manner laid down in the Code of
Civil Procedure for the verification of pleadings. The heading of
Rule 7 is "Procedure". Sub-rule (1) of this rule says that on
receipt of petition under Rule 6, the Chairman shall consider
whether the petition complies with the requirement of the said
rule and sub-rule (2) says that if the petition does not comply
with the requirement of Rule 6, the Chairman shall dismiss the
petition. These Rules have been framed by the Chairman in
exercise of power conferred by Paragraph 8 of the Tenth
Schedule. The purpose and object of the Rules is to facilitate
the job of the Chairman in discharging his duties and
responsibilities conferred upon him by Paragraph 6, namely, for
resolving any dispute as to whether a member of the House
has become subject to disqualification under the Tenth
Schedule. The Rules being in the domain of procedure, are
intended to facilitate the holding of inquiry and not to frustrate
or obstruct the same by introduction of innumerable
technicalities. Being subordinate legislation, the Rules cannot
make any provision which may have the effect of curtailing the
content and scope of the substantive provision, namely, the
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Tenth Schedule. There is no provision in the Tenth Schedule to
the effect that until a petition which is signed and verified in
the manner laid down in CPC for verification of pleadings is
made to the Chairman or the Speaker of the House, he will not
get the jurisdiction to give a decision as to whether a member
of the House has become subject to disqualification under the
Schedule. Paragraph 6 of the Schedule does not contemplate
moving of a formal petition by any person for assumption of
jurisdiction by the Chairman or the Speaker of the House. The
purpose of Rules 6 and 7 only this much that the necessary
facts on account of which a member of the House becomes
disqualified for being a member of the House under Paragraph
2, may be brought to the notice of the Chairman. There is no
lis between the person moving the petition and the member of
the House who is alleged to have incurred a disqualification. It
is not an adversarial kind of litigation where he may be
required to lead evidence. Even if he withdraws the petition it
will make no difference as a duty is cast upon the Chairman or
the Speaker to carry out the mandate of the constitutional
provision viz. the Tenth Schedule. The object of Rule 6 which
requires that every petition shall be signed by the petitioner
and verified in the manner laid down in CPC for the verification
of pleadings, is that frivolous petitions making false allegations
may not be filed in order to cause harassment. It is not
possible to give strict interpretation to Rules 6 and 7 otherwise
the very object of the Constitution (Fifty-Second Amendment)
Act by which the Tenth Schedule was added would be defeated.
A defaulting legislator, who has otherwise incurred the
disqualification under Paragraph 2, would be able to get away
by taking the advantage of even a slight or insignificant error in
the petition and thereby asking the Chairman to dismiss the
petition under sub-rule (2) of Rule 7. The validity of the Rules
can be sustained only if they are held to be directory in nature
as otherwise, on strict interpretation, they would be rendered
ultra vires.
11. The Apex Court has clearly laid down the principle that Rules that
would be made by the Speaker in exercise of power under para 8 of the Tenth
Schedule is only a procedural aspect to achieve the object and intendment to
give effect to the provision of Constitution and that it is not possible to give
strict interpretation to Rules 6 and 7, otherwise the very object of the
Constitution Fifty-Second Amendment Act by which Tenth Schedule was added,
would be defeated. From a careful reading of the law laid down by the Supreme
Court in the aforesaid paragraph read with another judgment of the Supreme
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Court in Rajendra Singh Rana (supra) at para 28 of which the apex Court
quoted with approval the following observation of the full Bench of Punjab and
Haryana High Court in Prakash Singh Badal v. Union of India, reported in
AIR 1987 P&H 263:
"......The other pre-requisite for invoking the jurisdiction of the
Speaker under para 6 is the existence of a question of
disqualification of some members. Such a question can arise
only in one way viz. that any member is alleged to have
incurred the disqualification enumerated in para 2(1) and
some interested person approaches the Speaker for declaring
that the said member is disqualified from being member of
the House and the claim is refuted by the member
concerned." (Emphasis laid by the Court)
It is abundantly clear that if any member of the house belonging to a political
party has joined another political party, which is a disqualification under para
2(1) of the Tenth Schedule, any person interested can make a reference to the
Speaker under Rule-6. It is not necessary that such a reference is required to
be made by a Member of the Legislative Assembly.
12. The aforesaid observation of the apex Court in para-16 of the
judgment in the case of Dr. Mahachandra Prasad Singh (supra) interpreting
Rule-6 makes it abundantly clear that the petitioner being the President of a
particular political party from which party four members defected and joined
the BJD, is a interested person and he can make the petitions under para 2 of
the Tenth Schedule read with Rule 6 of the Rules.
13. In view of the foregoing reasons, the other decisions cited by the
learned Sr. Counsel on behalf the opposite party have no application to the fact
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situation of the present case as the decisions to the contrary are well founded
which we have answered in foregoing paragraphs.
14. Having regard to the aforesaid provisions of law and the law
enacted thereunder, we are not inclined to accept the contention that a
member of a Legislative Assembly can alone file the petition because the same
would be in blatant violation of the object and intendment of the Tenth
Schedule inserted by Fifty-Second Amendment of the Constitution. Therefore,
we hold that the disqualification petitions filed by the petitioner, who is the
President of NCP, are maintainable under Rule 6 of the Rules. Accordingly, we
answer the point No.(i) in favour of the petitioner.
15. Since averment has been made by the opposite party in
paragraph 9 of the preliminary objection that steps have been taken by the
learned Speaker for disposal of the said petitions, it would be suffice for this
Court to give a direction to expedite the hearing of the said petitions and
dispose of the same as expeditiously as possible not later than eight weeks
from the date of receipt of a copy of this order after affording an opportunity of
hearing to the petitioner.
16. With the aforesaid observation and direction, the writ petitions are
disposed of.
..............................................
V.Gopala Gowda,C.,J
B.K. Misra, J.I agree.
............................................. B.K. Misra,J.
Orissa High Court, Cuttack September 27, 2012/ PKSahoo