Babulal Marandi vs The Tribunal Of The Speaker Under ... on 24 January, 2023

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Jharkhand High Court

Babulal Marandi vs The Tribunal Of The Speaker Under ... on 24 January, 2023

Bench: Rajesh Shankar

                                         1




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P. (C) No.4363 of 2022
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           Babulal Marandi                                   .......... Petitioner.
                                   -Versus-

1. The Tribunal of the Speaker under Schedule-X of the Constitution, Jharkhand Vidhan Sabha, Dhurwa, Ranchi.

2. Deepika Pandey Singh .......... Respondents.

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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR

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           For the Petitioner :         Mr. V.P. Singh, Sr. Advocate
                                        Mr. V.K. Sahu & Mr. A. K. Mishra, Advocates
           For the Res. No.1 :          Mr. Sanjay R. Hegde, Sr. Advocate
                                        Mr. Anil Kumar, Advocate
           For the Res. No.2 :          Mr. Sumeet Gadodia, Advocate
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           C.A.V. On 05.01.2023                Pronounced on 24.01.2023
Rajesh Shankar J.

1. The present writ petition has been filed for restraining the Tribunal of the Speaker, Jharkhand Vidhan Sabha, constituted under Schedule-X of the Constitution- the respondent no.1 to pass final order in Tenth Schedule Case No.01/2021 initiated on the basis of the complaint filed by the respondent no.2 on 23.12.2020 without deciding the preliminary objection of the petitioner filed on 23.08.2021. Further prayer has been made for quashing the order dated 30.08.2022 passed in Tenth Schedule Case No.1/2021, whereby the judgment has been reserved without providing any opportunity of hearing to the petitioner. The petitioner has also prayed for issuance of direction upon the respondent no.1 to allow the petitioner to adduce evidence before passing final judgment in Tenth Schedule Case No.1/2021 as well as not to proceed with the case during pendency of the present writ petition or till disposal of the preliminary objection filed by the petitioner.

2. Mr. V.P. Singh, learned Senior counsel appearing on behalf of the petitioner submits that the petitioner-Babulal Marandi, along with Pradeep Yadav and Bandhu Tirkey contested the 5th Jharkhand Legislative Assembly Election held in the month of November, 2019, being the candidates of Jharkhand Vikash Morcha (Prajatantrik) [in short JVM(P)] and they were elected as the members of Jharkhand Legislative Assembly from the constituencies- Dhanwar, Poraiyahat and Mandar, respectively. After declaration of result, two MLAs of JVM(P), namely, Bandhu Tirkey and Pradeep Yadav were found involved in anti-party activities and as such a show cause notice was 2 issued by the Principal General Secretary of JVM (P) to Bandhu Tirkey on 17.01.2020 following the instructions of the petitioner, who was the Central President of the party. However, Bandhu Tirkey did not submit his reply to the said show cause notice and as such he was expelled from the party on 21.01.2020 as well as information to that effect was also given to the Speaker of Jharkhand Legislative Assembly. Thereafter, Pradeep Yadav and Bandhu Tirkey joined another political party, namely, Indian National Congress (INC) and the said news was published in a local daily newspaper "Dainik Bhaskar" on 24.01.2020, which was not denied by them. A show cause notice was also issued to Pradeep Yadav so as to explain about his conduct of anti-defection activities and when no reply was submitted by him, a decision was taken on 06.02.2020 by the administration of JVM(P) to remove him from the party and the information to that effect was also given to the Jharkhand Vidhan Sabha. Since two members of JVM(P) had already joined INC, the petitioner being the President of JVM(P) called a meeting of Central Working Committee of the Party on 11.2.2020 and out of total members of 143 of CWC, altogether 131 members i.e. 2/3rd of the total members attended the said meeting. All the attending members of CWC resolved and unanimously approved the issues of expulsion of Bandhu Tirkey and Pradeep Yadav from the party as also to merge JVM(P) with Bhartiya Janta Party (BJP) and to that effect, the petitioner wrote letter no.121/JVM/2020 dated 11.02.2020 to the Chief Election Commissioner of India. The petitioner also informed the said decision of merger to the respondent no.1 vide letter no.12/JVM/20 dated 16.02.2020. The Under Secretary, Election Commission of India while forwarding the order of the Election Commission of India dated 06.03.2020 through Speed Post/e-mail bearing F. No.56/3/LET/ECI/FUNC/PP/PPS-II/2011 dated 06.03.2020, informed the President of JVM(P) that as per the documents available on record including the report of the Chief Electoral Officer, Jharkhand, the Commission was satisfied that JVM(P) had merged with BJP and, accordingly, JVM(P) had ceased to exist as a separate political party. Thereafter, JVM(P) was removed from the list of political parties and its symbol "comb" was frozen till further order. The Election Commission of India vide letter no.525 dated 07.03.2020 also served a copy of the order dated 06.03.2020 to the Secretary, Jharkhand Vidhan Sabha, Ranchi.

3. It is further submitted that Jharkhand Vidhan Sabha Secretariat vide letter as contained in memo No.1097 dated 15.06.2020 issued by the Secretary Jharkhand Vidhan Sabha Ranchi-cum-Returning Officer of Rajya Sabha Biennial Election 2020 communicated amended voter list of Jharkhand for the biennial election of Council of States scheduled to be held on 10.06.2020 to the Election Commission of India in the light of directions given vide commission's letter dated 11.06.2020 showing the petitioner as an MLA of BJP, whereas Bandhu Tirkey and Pradeep Yadav were shown as independent till any decision was taken by the respondent no.1. Surprisingly, as per the order of the Speaker, the Deputy Secretary, Jharkhand Legislative Assembly issued notices to the petitioner vide letter no.31/VS dated 08.01.2021 and letter no.207/VS dated 03.02.2021, mentioning that a complaint dated 23.12.2020 was received from Deepika Pandey Singh, an MLA, Jharkhand (the respondent no.2 herein). In pursuance thereof, Tenth Schedule Case No.01/2021 was initiated and the petitioner was required to submit his stand along with evidences on 21.01.2021 before the respondent no.1. The petitioner appeared before the respondent no.1 and filed his reply to the show cause notice, denying all the allegations made against him as well explaining the fact of expulsion of two MLAs, namely, Pradeep Yadav and Bandhu Tirkey due to their indulgence in anti-party activities. The petitioner also filed supplementary reply stating that Pradeep Yadav and Bandhu Tirkey had joined INC party. It is also submitted that three other cases were filed under Tenth Schedule of the Constitution of India against Pradeep Yadav and Bandhu Tirkey numbered as Tenth Schedule Case Nos.3, 4 and 5 of 2021.

4. Learned senior counsel for the petitioner contends that the petitioner had filed preliminary objection on 23.08.2021 with respect to maintainability of Tenth Schedule Case No.01/2021 before the respondent no.1, claiming that the issue involved in the said case was related to merger and not of defection for which the Election Commission of India had already taken a decision on 06.03.2020, however, the respondent no.1 did not decide the said issue and reserved the case for final judgment vide order dated 30.08.2022. The petitioner had also filed a petition on 17.05.2022 for re-casting of issues but the same was not decided. Moreover, the petitioner filed list of witnesses to be examined on his behalf, however, the respondent 4 no.1 failed to examine the said witnesses, who were the members of the Central Working Committee of erstwhile JVM(P) and had participated in the meeting of the CWC held on 11.02.2020. The respondent no.2 filed certain documents before the respondent no.1, however, without examination of any witness, the respondent no.1 marked the said documents as exhibits on its own even when the petitioner objected to it. On the one hand, the cases of Pradeep Yadav and Bandhu Tirkey have been adjourned and, on the other hand, the case of the petitioner has been reserved for judgment that too in violation of the principles of natural justice. The respondent no.1 was bound to follow the principles of natural justice while deciding the issue with regard to anti-defection as provided in the Tenth Schedule of the Constitution of India. The manner in which the entire proceeding was conducted by the respondent no.1 suggests non-application of mind who also acted in an arbitrary manner by not disposing of several petitions filed by the petitioner.

5. Learned senior counsel for the petitioner also submits that Section 29-A of the Representation of the People Act, 1951 provides for registration of associations and bodies with the Election Commission as political parties and in view of sub-section (8) of section 29-A, the decision of the Election Commission is final. In the present case, JVM(P) has merged with BJP and the said merger has been accepted/confirmed by the Election Commission of India vide e-mail dated 06.03.2020. As such, the Speaker, Jharkhand Legislative Assembly cannot sit in appeal over the decision of the Election Commission of India on the point of merger and indirect challenge to the order of the Election Commission is not permissible. Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968 (in short Symbol Order, 1968) speaks about the power of the Commission in relation to splinter groups or rival sections of a recognised political party. As per the said Para, when the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party, the Commission may, after taking into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desired to be heard, decide that one such rival section or group or none of such rival sections or 5 groups is that recognised political party and the decision of the Commission shall be binding on all such rival sections or groups.

6. Learned senior counsel for the petitioner also invites attention of this court to Para-16 of the Symbol Order, 1968. Sub-para (1) of para 16 provides that when two or more political parties, one or some or all of whom is a recognised political party or are recognised political parties join together to form a new political party, the Commission may, after taking into account all the facts and circumstances of the case, hearing such representatives of the newly formed party and other persons as desired to be heard and having regard to the provisions of this Order, decide as to whether such newly formed party should be a National party or a State party and thereafter decide the symbol to be allotted to it. As per sub-para (2) of para 16, the decision of the Commission under sub-paragraph (1) shall be binding on the newly formed political party and all the component units thereof. Para 2(2) of the Symbol Order, 1968 provides that the General Clauses Act, 1897 shall, as far as may be, apply in relation to the interpretation of this Order as it applies in relation to the interpretation of a Central Act. Thus, the power to register a political group also includes the power to de- register it.

7. Learned senior counsel for the petitioner further submits that earlier a suo moto proceeding was initiated by the respondent no.1 being Tenth Schedule Case No.1 of 2020 wherein the petitioner filed his objection, which was kept pending and as such the petitioner filed a writ petition being W.P.(C) No.3687 of 2020, challenging vires of Sub-rule (1) of Rule 6 of Jhakrhand Vidhan Sabha Sadasya (Dal Parivartan Ke Aadhar Par Nirharta) Rules, 2006 (in short Rules, 2006) as well as the proceeding initiated under Tenth Schedule Case No.1 of 2020. In the said case, the petitioner contended that the Speaker was not empowered to initiate suo moto proceeding in a purported defection matter. The said case was heard by learned Division Bench of this court along with W.P.(C) No.3654 of 2020 and vide order dated 17.12.2020, further proceeding in pursuance of the notice dated 18.08.2020, as initiated against the petitioner, was ordered to be kept in abeyance till the next date of hearing and in the meantime the respondents were directed to file counter affidavit with respect to the vires of provision of sub-rule (1) of Rule 6 of the Rules, 2006. The respondent no.1 also filed S.L.P (C) No.73-74 of 2021 against the said order dated 6 17.12.2020 passed in W.P.(C) No.3687 of 2020 along with W.P.(C) No. 3654 of 2020, however, the said appeal was dismissed vide order dated 12.01.2021 giving liberty to raise all the grounds and questions including maintainability of the writ petition before the High Court of Jharkhand. Thereafter, the respondent no.1 undertook before learned Division Bench of this Court that he would not proceed further with the disqualification proceedings in Tenth Schedule Case No.1 of 2020 in which the notices dated 18.08.2020 and 02.11.2020 were issued to the petitioner. As per the undertaking of the respondent no.1, learned Division Bench vide order dated 19.01.2021 observed that the notices dated 18.08.2020 and 02.11.2020 becoming ineffective, the writ petitions could be held to have become infructuous, however, since validity of rule 6(1) of Rules, 2006 was also challenged, the said writ petitions were kept alive for deciding the issue of validity of the said rule. It is further submitted that the person who had sworn the additional affidavit dated 13.01.2021 in W.P.(C) No. 3687 of 2020 on behalf of the respondent no.1 suppressed the fact that another complaint against the petitioner under the Tenth Schedule was filed by the respondent no.2.

8. Learned senior counsel for the petitioner assiduously argues that since the earlier proceeding initiated against the petitioner with respect to merger had travelled up to the Hon'ble Supreme Court, another proceeding cannot be initiated on the same set of facts at the instance of a complaint. The respondent no.1 had given an undertaking before learned Division Bench that he would not proceed in the Tenth Schedule Case No.1 of 2020, however, he entertained the complaint of the respondent no.2 and issued notice on the same grounds, which is arbitrary, mala fide and illegal. In fact, it is not a case of defection rather of merger and the said dispute is not maintainable under Para 6 of the Tenth Schedule of the Constitution of India. The Election Commission of India has already decided the said issue and as such the Speaker lacks jurisdiction to sit in appeal over the order of the Commission. Thus, the said proceeding against the petitioner is without jurisdiction and not maintainable in the eye of law.

9. Learned senior counsel for the petitioner puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Rameshwar Prasad (VI) v. Union of India, reported in (2006)2 SCC 1, and submits that in the said case the Supreme Court had declined to 7 examine the issue of merger and/or deemed merger under Paragraph 4 of Tenth Schedule.

10. Mr. Sanjay R. Hegde, learned senior counsel appearing on behalf of the respondent no.1, primarily argues that the Speaker is still in seisin of the matter and as such the present writ petition is not maintainable. The petitioner was given due opportunity of hearing before passing the order reserving the judgment. The petitioner by filing the present writ petition is trying to linger the matter on frivolous grounds.

11. Learned senior counsel for the respondent no.1 puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Kihoto Hollohan Vs. Zachillhu & Others, reported in (1992)2 Supp. SCC 651, and submits that the power of judicial review of an interim order passed by the Speaker has been set out by the said Constitution Bench judgment of Hon'ble Supreme Court holding inter alia that quia timet actions are not permissible before a final decision is taken by the Speaker and judicial review cannot be available at the stage prior to the making of final decision of the Speaker. The exception to this rule is limited to the cases where suspension or disqualification has been imposed during the pendency of disqualification proceedings and such suspension or disqualification would have grave, immediate or irreversible consequences. In the present case, the final order on the petitioner's disqualification has been reserved by the Speaker after providing several opportunities of hearing to the petitioner and no interim measure either suspending him or disqualifying him has been taken by the Speaker. Therefore, the question of suspension or disqualification having the effect likely to have grave, immediate and irreversible repercussions does not arise. The issue of disqualification of the petitioner in terms with paragraph 2 of the Tenth Schedule and the validity of merger so as to protect him from disqualification on the ground of merger under paragraph 4 of the Tenth Schedule, can only be decided by the Speaker. The petitioner was permitted to claim merger as a defence before the Speaker in terms with the specific constitutional mandate and, thus, no relief may be granted to him by this Court at this stage in exercise of power of judicial review.

12. Learned senior counsel for the respondent no.1 further submits that the proposition laid down in Kihoto Hollohan (Supra.) has been followed by the Hon'ble Supreme Court in the cases of Speaker, 8 Haryana Vidhan Sabha Vs. Kuldeep Bishnoi & Others, reported in (2015) 12 SCC 381; Keisham Meghachandra Singh Vs. Hon'ble Speaker Manipur Legislative Asembly and Others, reported in 2020 SCC OnLine SC 55; and Nabam Rebia & Bamang Felix Vs. Deputy Speaker, Arunachal Pradesh Legislative Assembly & Others, reported in (2016) 8 SCC 1.

13. Learned senior counsel for the respondent no.1 by putting reliance on the judgments rendered in the cases of Colonel Devinder Kumar Sehrawat and Another Vs. The Speaker Legislative Assembly, NCT of Delhi and Another (L.P.A No. 450 of 2019 and L.P.A No. 452 of 2019) and D. Dhanavelou Vs. V.P. Sivakolundhu and Another, reported in 2020 SCC OnLine Mad 758 submits that several High Courts have also followed the dictum laid down in Kihoto Hollohan (Supra.) and have rejected the challenges made at the interlocutory stage.

14. It is also submitted that on bare perusal of the prayer made in the present writ petition, it would be found that the petitioner seeks judicial interference before a final decision is taken by the Speaker without meeting the test laid down in Kihoto Hollohan (Supra.). Since final order has been reserved by the Speaker after providing several opportunities to the petitioner and no order of suspension or disqualification of the petitioner has been passed, the question of suspension or disqualification having the effect likely to have grave, immediate and irreversible repercussions does not even arise.

15. Learned senior counsel for the respondent no.1 further contends that the Constitution of India confers the power to disqualify the members of a legislative assembly only to the Speaker. Article 191(2) of the Constitution of India provides that a person shall be disqualified for being a member of legislative assembly or legislative council of a State if he is so disqualified under the Tenth Schedule. The grounds for disqualification of a member of a House on account of defection mentioned in Paragraph 2 of the Tenth Schedule are subject to the exceptions provided in Paragraphs 4 and 5. Paragraph 6 specifically reserves the power of adjudication of questions relating to disqualification of a member of legislative assembly exclusively with the Speaker whose decision shall be final. Therefore, if a question of disqualification under Paragraph 2(1) of the Tenth Schedule arises with respect to a member of a House on account of voluntarily giving up 9 the membership of a political party to which he belongs and if such a member claims protection from disqualification by relying on Paragraph 4 of the Tenth Schedule which immunizes members from disqualification in the cases of merger, it is only the Speaker who under Paragraph 6 of the Tenth Schedule can adjudicate both questions contemporaneously for the ultimate purpose of deciding as to whether the said member is liable to be disqualified under the Tenth Schedule.

16. Learned senior counsel for the respondent no.1 argues that the decision of the Election Commission of India on merger of party is only for the purpose of the Symbol Order, 1968 and has no other consequence. As far as Tenth Schedule is concerned, the fact of merger neither confers jurisdiction nor takes it away from the Speaker. When a question of disqualification is raised, it is open to the member to claim a defence of merger. The Speaker within its jurisdiction is to give a finding as to whether the claimed merger is a defence or not. So far the argument of the learned senior counsel for the petitioner to the extent of not deciding the petitioner's preliminary objection, the defence of merger under Para 4 can be taken before Speaker but the jurisdiction of the Speaker under Para 6 cannot be challenged on the ground of pendency of preliminary objection filed by the petitioner. Moreover, the said error (if at all sustainable) may be regarded as "an error within jurisdiction" and not "error of jurisdiction" and thus the power of judicial review may not be exercised for such an error as has been alleged by the petitioner.

17. Learned senior counsel for the respondent no.1 also contends that the proceeding under the Tenth Schedule was initiated pursuant to a complaint filed by the respondent no.2 on 23.12.2020. Two notices as per the order of the Speaker were issued by the Deputy Secretary, Jharkhand Legislative Assembly to the petitioner on 08.01.2021 and 03.02.2021. Since then, more than 11 hearings have taken place and on 30.08.2022, the Speaker has reserved his order in the petitioner's disqualification case i.e. Tenth Schedule Case no.01 of 2021. An effective opportunity as laid down in the case of Shrimanth Balasaheb Patil Vs. Karnataka Legislative Assembly, reported in (2020) 2 SCC 595, has been given to the petitioner. Both the questions i.e. whether the complainant's averments are true so as to attract disqualification in terms with paragraph 2 of the Tenth Schedule and the validity of the petitioner's defence taking ground of merger 10 under paragraph 4 of the Tenth Schedule so as to protect him from disqualification can only be decided by the Speaker. The petitioner was permitted to claim merger as a defence only before the Speaker in terms of the specific constitutional power conferred to the Speaker under the Tenth Schedule and only when a final decision is rendered by the Speaker, it is open for the petitioner to pursue his remedies in accordance with law. Adjudication of the present writ petition on merits at this stage would amount to assuming the constitutionally vested adjudicatory powers of the Speaker to decide the petitioner's disqualification case at the first instance. The petitioner ought not to be permitted to invoke the extraordinary powers of this Court under Article 226 of the Constitution of India and circumvent the constitutional framework of raising all defences relating to merger before the Speaker. In paragraph 4 of the Supplementary affidavit dated 13.01.2021 filed on behalf of the respondent no.1 in W.P.(C) No.3687 of 2020, it was already disclosed that the office of the respondent no.1 had received three separate complaints against the petitioner by the members of Jharkhand Legislative Assembly namely Sri Bhushan Tirkey, Ms. Deepika Pandey Singh and Pradip Yadav & Bandhu Tirkey for his disqualification under 10th Schedule of the Constitution of India in which notices were already issued.

18. Mr. Sumit Gododia, learned counsel appearing on behalf of the respondent no.2 adopts the argument of learned senior counsel for the respondent no.1. He adds that Election Commission of India has not been conferred with any enabling power either under the Constitution of India or under the Representation of the People Act, 1951 or even under the Symbol Order, 1968 to decide the issue as to whether a political party has merged with another political party. It is further submitted that even Paragraph 15 and 16 of the Symbol Order, 1968 only enable Election Commission of India to determine as to whether the said newly formed party would be treated as a National Party or a State Party including symbol to be allotted to the newly formed party. The case in the Tribunal of Speaker involves pure legal issues including the issue as to whether without complying the provisions of Clause 4 of the Tenth Schedule, a political party can merge with another political party.

19. Learned counsel for the respondent no.2 puts reliance on a judgment rendered by Gujarat High Court in the case of Devabhai Parbatbhai 11 Avadia & Others Vs. Competent Authority appointed under Anti Defection Act & Another, reported in 2009 SCC OnLine Guj 3219, and submits that the proceedings under the Tenth Schedule are not comparable either to a trial in a Court of law or a departmental proceedings initiated for disciplinary action against an employee. The scope of judicial review in respect of proceedings before such Tribunal is limited. The power of judicial review may be exercised on the ground of violation of the principles of natural justice, however the yardstick to judge the grievance is different and if the view taken by the Tribunal is a reasonable one, the Court should decline to strike down an order on the ground that another view may be more reasonable. The Tribunal can draw an inference from the conduct of a member, of course, depending upon the facts of the case and totality of the circumstances. It is further submitted that the petitioner has mainly raised three issues. One of the issues is that preliminary objection filed by him was not decided by the Speaker, however, the said issue is in fact the main issue which is to be decided by the Speaker while passing the final order.

20. In the case of Baljit Singh Bhullar Vs. Speaker, Punjab Vidhan Sabha, reported in 1997 SCC OnLine P&H 788, rendered by the Punjub and Haryana High Court, it has been held that as per sub- paragraph 2 of paragraph 6 of the Tenth Schedule, the proceedings regarding disqualification of a member of the House shall be deemed to be proceedings in the Legislature of a State within the meaning of Article 212. Under clause (i) of Article 212, the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

21. Learned counsel for the respondent no.2 also submits that according to Paragraph 4(2) of the Tenth Schedule of the Constitution of India, merger of the original political party of a member of a House shall be deemed to have taken place if and only if not less than 2/3rd members of the concerned legislative party have agreed to such merger. The petitioner in complete defiance of the said provision of the Tenth Schedule of the Constitution of India, unilaterally merged the political party- JVM(P) with another political party-BJP without taking consent of other two MLAs. In the case of G. Viswanathan v. Speaker, Tamil Nadu, Legislative Assembly & Another, reported in (1996) 2 SCC 353, the Hon'ble Supreme Court has held that the 12 scope of the legal fiction enacted in the explanation (a) to para 2(1) of the Tenth Schedule assumes importance in this context. It has been well settled that a deeming provision is an admission of the non- existence of the fact deemed. The Legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not even exist. It means that the courts must assume that such a state of affairs exists as real, and should imagine as real the consequences and incidents which inevitably flow therefrom, and give effect to the same. Learned counsel further refers the judgment of Gauhati High Court rendered in the case of Speaker, Nagaland Legislative Assembly & Another v. Imtilemba Sangtam , MLA & Others, reported in 2014 SCC OnLine Gau 610, wherein it has been held that when there is a valid merger according to the party constitution and elected members of the House endorsing that merger join other political party, they would be saved from disqualification even if they are less than 2/3rd in numbers, but the Speaker will have the jurisdiction to make an enquiry regarding valid merger. However, when 2/3rd members of the House endorse the merger and join other political party, it would be inscrutable for the Speaker to make an enquiry since the deeming provisions in paragraph 4(2) of the Tenth Schedule declares and makes it conclusive proof of fact of merger of original political party. Mr. Gadodia submits that since in the present case, out of three elected members of JVM(P), only one member i.e. less then 2/3rd had endorsed the merger, the Speaker has the power to enquire regarding valid merger so as to decide the question of disqualification under Para 6 of Tenth Schedule.

22. It is further submitted that section 29-A of the Representation of People Act, 1951 gives power to the Election Commission of India to register associations and bodies as political parties, but does not entrust power of de-registration. He relies upon para 41 of the judgment rendered by the Hon'ble Supreme Court in the case of Indian National Congress (I) Vs. Institute of Social Welfare & Others, reported in (2002) 5 SCC 685, wherein it has been held that the provisions of Section 21 of the General Clauses Act, 1897 cannot be extended to the quasi-judicial authority. Since the Election Commission of India while exercising its power under Section 29-A of the Act, 1951 acts as a quasi-judicial body, the provisions of Section 21 of the General Clauses Act, 1897 have no application.

23. In reply to the arguments advanced on behalf of the respondents, learned Senior counsel for the petitioner submits that the judgment rendered in the case of Kihoto Hollohan (Supra.) is not applicable to the facts and circumstance of the present case since it is not a case of defection rather a case of merger of two political parties as has been decided by the Election Commission of India and the Presiding Officer under the Tenth Schedule has no power to disturb the decision of ECI. It is further submitted that Paragraph 4 of the Tenth Schedule clearly stipulates that disqualification on the ground of defection would not apply in case of merger of political parties. The main debate in the case of Kihoto Hollohan (Supra.) was on construction of Paragraph 6 and 7 of the Tenth Schedule and the scope and ambit of Paragraph 4 of Tenth Schedule were never under consideration.

24. Learned senior counsel for the petitioner puts reliance on a judgment rendered by Goa Bench of the Bombay High Court in the case of Girish Chodankar Vs. Speaker, Goa Legislative Assembly and Others, reported in 2022 SCC OnLine Bom 377, wherein it has been held that sub-paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule operate in distinct and independent fields. Sub-paragraphs (1) and (2) of paragraph 4 of the Tenth Schedule are disjunctive and sub- paragraph (2) addresses a situation where the deeming fiction as contemplated therein comes into operation. It has further been held that sub-paragraph (1) of paragraph 4 addresses the fall out of merger of a political party on members of the House, whether they agree or disagree with the same. The same is clearly disjunctive from the specific situation of deemed merger contemplated under sub- paragraph (2) of paragraph 4. Moreover, the Speaker under sub- paragraph (2) of paragraph 4 of the said Schedule, can decide only about the legislature party and whether two-thirds members of the legislature party have agreed for merger.

25. Heard the learned counsel for the parties and perused the materials available on record. A proceeding i.e. Tenth Schedule Case No.01/2021 for disqualification of the petitioner under Tenth Schedule of the Constitution of India is pending before the Speaker, Jharkhand Vidhan Sabha. Learned senior counsel for the petitioner submits before this Court that the Speaker has reserved the case for judgment without providing due opportunity of hearing to the petitioner as also several infirmities have been committed by the Speaker while reserving its 14 judgment. It is further argued by learned senior counsel for the petitioner that the Speaker has not decided the preliminary objection raised by the petitioner with respect to maintainability of the defection case as the issue pertains to "merger" which has already been decided by the Election Commission of India and not the "defection".

26. The Tenth Schedule of the Constitution of India has been added by section 6 of the Constitution (Fifty-second Amendment) Act, 1985 providing for disqualification of a member of either House of Parliament or Legislative Assembly or either House of the legislature of a State on the ground of defection. As per Para 1(b) of the Tenth Schedule, the "legislature party" in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions. Further as per Para 1(c) "original political party" in relation to a member of a House means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2. Para 2 of the Tenth Schedule provides that 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 if he has voluntarily given up his membership of such political party or 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. Para 4 (1) provides that a member of a House shall not be disqualified under sub- paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other member of his original political party have become members of such other political party or, as the case may be, of a new political party formed by such merger; or have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his 15 original political party for the purposes of this sub-paragraph. Further, Para 4(2) provides that for the purposes of sub-paragraph (1) of the said paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. Para 6 of the Tenth Schedule empowers the Chairman or the Speaker of a House to decide the question as to whether a member of a House has become subject to disqualification on the grounds provided under the said Schedule and the decision of the Chairman or as the case may be, the Speaker of such House shall be final.

27. Para 7 of the Tenth Schedule mentions bar of jurisdiction of courts in respect of any matter connected with the disqualification of a member of a House under the said Schedule, however, the same has been declared invalid by the Constitution Bench of Hon'ble Supreme Court in the case of Kihoto Hollohan (Supra.). In the said case, Their Lordships framed several questions for consideration and answered accordingly. For the purpose of the present case, question Nos. E & F so farmed by Their Lordships are relevant which are quoted as under:-

"(E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court.

The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to, but constitutionally immune from, curial adjudicative processes.

(F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional 'finality' to the decision of the Speaker or the Chairman, as the case may be, and that such concept of 'finality' bars examination of the matter by the Courts."

28. Their Lordships while answering question no. (E) and (F) held as under:-

"109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph 6, the scope of judicial review under Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

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 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."

29. In the aforesaid case, the constitution Bench of the Hon'ble Supreme Court has explicitly held that 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 to correct the jurisdictional errors like violations of constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity. It has further been made it clear that no quia timet actions are permissible. The power of judicial review should not cover any stage prior to making of a decision by the Speakers/Chairmen except in the case where interlocutory disqualifications or suspensions has been made which may have grave, immediate and irreversible repercussions and consequence.

30. It has further been held that the finality clause in Paragraph 6 of the Tenth Schedule does not completely exclude the jurisdiction of the 17 courts under Articles 136 , 226 and 227 of the Constitution but it does have the effect of limiting the scope of the jurisdiction. In spite of a finality clause, it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fide or is colourable exercise of power based on extraneous and irrelevant considerations. While exercising certiorari jurisdiction, the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of a tribunal by certiorari if the tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice.

31. In the case of Kuldeep Bishnoi (Supra.), one of the questions came to be considered by the Hon'ble Supreme Court was as to whether the High Court in exercise of the powers under Article 226 and 227 of the Constitution, had the jurisdiction to issue directions of an interim nature to a Member of the House during pendency of a disqualification petition of such member before the Speaker of a State Legislative Assembly under Article 191 read with Schedule X of the Constitution of India. In the said case the Hon'ble Supreme Court while following the view taken by the Constitution Bench in Kihoto Hollohan (Supra.) held as under:-

" 39. Most of the questions raised by Mr Nidhesh Gupta and Dr Rajeev Dhavan contemplate a situation where the Speaker had taken a final decision on a disqualification petition. However, in the instant case we are really required to consider whether the High Court was competent to pass interim orders under its powers of judicial review under Articles 226 and 227 of the Constitution when the disqualification proceedings were pending before the Speaker. In fact, even in [Kihoto Hollohan Vs. Zachillhu, 1992 Supp (2) SCC 651] which has been referred to in extenso by Dr Dhavan, the scope of judicial review has 18 been confined to violation of the constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity, but it was also very clearly indicated that having regard to the constitutional scheme in Schedule X, normally judicial review could not cover any stage prior to the making of the decision by the Speaker or the Chairman of the House, nor was any quia timet action contemplated or permissible.

43. The scheme of Schedule X to the Constitution indicates that the Speaker is not competent to take a decision with regard to disqualification on ground of defection, without a determination under Para 4, and Para 6 in no uncertain terms lays down that if any question arises as to whether a Member of the House has become subject to disqualification, the said question would be referred to the Speaker of such House whose decision would be final. The finality of the decisions of the Speaker was in regard to Para 6 since the Speaker was not competent to decide a question as to whether there has been a split or merger under Para 4. The said question was considered by the Constitution Bench in [Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270] . While construing the provisions of Schedule X to the Constitution in relation to Articles 102 and 191 of the Constitution, the Constitution Bench observed that the whole proceedings under Schedule X gets initiated as a part of disqualification proceedings.

Hence, determination of the question of split or merger could not be divorced from the motion before the Speaker seeking a disqualification of the Member or Members concerned under Para 6 of Schedule X. Under the scheme of Schedule X the Speaker does not have an independent power to decide that there has been split or merger as contemplated by Paras 3 and 4 respectively and such a decision can be taken only when the question of disqualification arises in a proceeding under Para 6. It is only after a final decision is rendered by the Speaker under Para 6 of Schedule X to the Constitution that the jurisdiction of the High Court under Article 226 of the Constitution can be invoked.

44. We have to keep in mind the fact that these appeals are being decided in the background of the complaint made to the effect that the interim orders have been passed by the High Court in purported exercise of its powers of judicial review under Articles 226 and 227 of the Constitution, when the disqualification proceedings were pending before the Speaker. In that regard, we are of the view that since the decision of the Speaker on a petition under Para 4 of Schedule X concerns only a question of merger on which the Speaker is not entitled to adjudicate, the High Court could not have assumed jurisdiction under its powers of review before a decision was taken by the Speaker under Para 6 of Schedule X to the Constitution. It is in fact in a proceeding under Para 6 that the Speaker assumes jurisdiction to pass a quasi-judicial order which is amenable to the writ jurisdiction of the High Court. It is in such proceedings that the question relating to the disqualification is to be considered and decided. Accordingly, restraining the Speaker from taking any decision under Para 6 of Schedule X is, in our view, beyond the jurisdiction of the High Court, since the Constitution itself has vested the Speaker with the power to take a decision under Para 6 and care has also been taken to indicate that such decision of the Speaker would be final. It is only thereafter that the High Court assumes jurisdiction to examine the Speaker's order. In view of the ratio laid down in the aforesaid cases by the Hon'ble Supreme Court now the issue is no more res Integra that the power of judicial review under Articles 136, and 226 and 227 of the Constitution of India shall only be exercised after passing of the final order by the Chairman or Speaker and that too for correcting jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity however no such power shall be exercised during the pendency of the proceeding before the Speaker or Chairman. The only exception for exercising power of judicial review even at interlocutory stage is that when the speaker has passed interlocutory suspension or disqualification of the aggrieved member of the Parliament or Legislative Assembly as the case may be."

32. In the aforesaid case, it has explicitly been held that the power of judicial review under Article 136 by the Supreme Court and under Articles 226 and 227 by the High Courts shall only be exercised after 19 passing of the final order by the Chairman or Speaker only on the ground of jurisdictional error viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. It has further been held that the power of judicial review shall not be exercised during pendency of the proceeding before the Speaker or Chairman. The only exception for exercising power of judicial review even at interlocutory stage is when the Speaker has passed interlocutory order of suspension or disqualification of an aggrieved member of Parliament or Legislative Assembly as the case may be.

33. In the case of Keisham Meghachandra Singh (Supra.), the term "quia timet" has been discussed in detail and has been held that quia timet injunction is granted to prevent the occurrence of an actionable wrong or to prevent repetition of an actionable wrong. There are at least two necessary ingredients for a quia timet action. One is that there must be proof of imminent danger and second is that there must also be proof that the apprehended damage will, if it comes, be very substantial and the apprehended danger is irreparable in nature. It has further been held that on conjoint reading of Paragraphs 110 and 111 of the judgment rendered in Kihoto Hollohan (Supra.), it would be clear that the finality clause in paragraph 6 of the Tenth Schedule protects the exclusive jurisdiction which vests in the Speaker to decide disqualification petitions so that nothing should come in the way of deciding the same. The exception that is made is also of importance in interlocutory interference with decisions of the Speaker which can only be qua interlocutory disqualifications or suspensions, having grave, immediate, and irreversible repercussions. It is indeed clear that judicial review is not available at a stage prior to making of a decision by the Speaker either by a way of quia timet action or by other interlocutory orders. What was meant to be outside the pale of judicial review as held in paragraph 110 of the judgment rendered in Kihoto Hollohan (Supra.) is quia timet action in the sense of injunction to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. However, the Speaker acting as a Tribunal under the Tenth Schedule of the Constitution is bound to decide the matter of 20 disqualification within a reasonable period which should be maximum three months from the date of filing of the complaint barring some exceptional circumstance.

34. In the case of Nabam Rebia & Bamang Felix (Supra.), the Hon'ble Supreme Court has held that the Court has constricted the power of judicial review and restricted it to the stage carving out certain extreme exceptions because the Speaker, while exercising the authority/jurisdiction, performs the duty of "constitutional adjudication" which has constitutional value in a parliamentary democracy; and constitutional values sustain the democracy in a sovereign republic. It has further been held that the power which flows from the introduction of the Tenth Schedule by constitutional amendment is required to be harmoniously construed with Article 179(c) of the Constitution of India. Both the provisions of the Constitution are meant to sub-serve the purpose of sustenance of democracy which is a basic feature of the Constitution.

35. Reverting back to the present case. The proceeding for disqualification of the petitioner i.e. Tenth Schedule Case No.1/2021 is still pending before the respondent no.1 and vide order dated 30.08.2022 the respondent no.1 has reserved the case for final order, which is yet to be pronounced. The petitioner has, however, approached this Court during pendency of the proceeding before the respondent no.1 that too when the case is reserved for passing final order. Though the petitioner has claimed violation of the principles of natural justice and pointed out some infirmities in the proceeding pending before the respondent no.1, in view of clear and explicit observations made by the Hon'ble Supreme Court in the aforesaid judgments, even on the said ground, the power of judicial review cannot be exercised by this Court at this stage when the Speaker is in seisin of the matter. The only exception for exercise of power of judicial review at interlocutory stage is also not present in the case in hand, since neither the petitioner has claimed nor the fact of the case suggests that he has been suspended or disqualified by the Speaker during pendency of the proceeding. This Court is of the considered view that the words "only exception" used by the Hon'ble Supreme Court in the case of Kihoto Hollohan (Supra.) restrict the exercise of power of judicial review before passing final order by the Chairman or the Speaker on any other ground i.e. even when there seems to be errors like the vice of mala 21 fides, non-compliance with rules of natural justice and perversity, though the same are the grounds for exercising power of judicial review after passing final order by the Speaker. The observation of the Hon'ble Supreme Court was made looking to the language used by the legislature while enumerating Paragraph 6 of the Tenth Schedule.

36. Learned senior counsel for the petitioner puts much reliance on the interlocutory order dated 17.12.2020 passed by learned Division Bench of this Court in W.P.(C) No.3687 of 2020 with W.P.(C) No.3654 of 2020 and submits that since the notice for disqualification was earlier stayed by learned Division Bench and the said order merged with the order dated 12.01.2021 passed by the Hon'ble Supreme Court in S.L.P.(C) No.73-74 of 2021, the order dated 17.12.2020 sets a binding precedent for this court.

37. On the other hand, learned senior counsel for respondent no.1 submits that the observation made in the interim order dated 17.12.2020 has no precedential significance. Once a final order is passed, all interim orders merge into the final order. The order dated 17.12.2020 passed in W.P.(C) No.3687 of 2020 with W.P.(C) No.3654 of 2020 has merged with the subsequent order dated 19.01.2021 passed by learned Division Bench of this Court with respect to validity of the notice dated 18.08.2020 by which the Speaker had suo moto initiated disqualification proceedings against the petitioner, however, the prayer relating to challenge to Rule 6(1) of the Rules, 2006 was left open for determination and the same is still pending. It is submitted that the order dated 17.12.2020 does not contain any determination on the question of validity of the notices issued by the Speaker in the petitioner's earlier disqualification case or the judicial reviewability of interim decisions of the Speaker. Moreover, the dismissal order of the Supreme Court cannot be seen as an imprimatur to the observations made in the interim order of the High Court dated 17.12.2020 which was subject matter of challenge. It cannot be said that the order dated 17.12.2020 stood merged with the order of the Supreme Court, since the Hon'ble Supreme Court dismissed the said S.L.P. filed by the respondent no.1 at the threshold giving it liberty to raise all questions including tenability of writ petition(s) before this Court. The Hon'ble Supreme Court in the case of Kunhayammed Vs. State of Kerala, reported in (2000) 6 SCC 359, has held that an order refusing 22 special leave to appeal may be a non-speaking or speaking order, does not attract the doctrine of merger.

38. To appreciate rival contentions of the learned counsel for the parties, this Court has perused the order dated 17.12.2020 passed by learned Division Bench of this Court in W.P.(C) No.3687 of 2020 with W.P.(C) No.3654 of 2020. In W.P.(C) No.3687 of 2020, the petitioner had initially sought quashing of the notice dated 18.08.2020, whereby the respondent no.1 had suo-moto initiated Tenth Schedule Case No.1 of 2020 and had directed the petitioner to produce evidence in support of his case. Subsequently, the petitioners of both the aforesaid writ petitions also challenged the vires of sub-rule (1) of rule 6 of the Rules, 2006 by amending their respective writ petitions and as such the matter was placed before the Division Bench. In the said case, learned Division Bench having gone into the provision of Para 6 of the Tenth Schedule held that under the constitutional mandate, no power has been conferred upon the Speaker to take suo-moto decision for answering the question of disqualification under the Tenth Schedule of the Constitution of India.

39. The facts and circumstance of the present case is different from the facts of W.P.(C) No.3687 of 2020 wherein Tenth Schedule Case No.1 of 2020 was suo moto initiated by the Speaker, which prima facie appeared beyond jurisdiction and against the constitutional mandate to learned Division Bench, however, in the present case the respondent no.1 has instituted the case after receiving the complaint from the respondent no.2.

40. In the case in hand, the petitioner has also alleged procedural irregularity in conducting Tenth Schedule Case no.01 of 2021 contending that his preliminary objection was not decided before putting the case for final order. In the case of Hari Prasad Mulshankar Trivedi Vs. V.B Raju and Others, reported in (1974) 3 SCC 415, as has been relied upon by learned senior counsel for the respondent no.1, it has been held that there is distinction between lack of jurisdictional power and erroneous exercise of it. A wrong decision on a question of ordinary residence for the purpose of entering a person's name in the electoral roll should not be treated as a jurisdictional error which can be examined either in a civil court or by an election tribunal.

41. That apart, the stage of the proceeding of the Tenth Schedule Case no.01 of 2021 is also different from the case cited by learned senior counsel for the petitioner concerning Tenth Schedule Case no.01 of 2020. In the present case, the respondent no.1 has reserved the case for final order whereas in W.P.(C) No.3687 of 2020 filed by the petitioner, the notice dated 18.08.2020 and the vires of rule 6 (1) of Rules, 2006 were under challenge. I am of the considered view that if the power of judicial review is exercised at this stage, the same will amount to interfering with the power of the Speaker conferred by Para 6 of the Tenth Schedule of the Constitution. Since in W.P.(C) No.3687 of 2020, the vires of sub-rule (1) of rule 6 of the Rules, 2006 was under

challenge which required detailed hearing, learned Division Bench had granted interim protection to the petitioner having seen the prima facie case, balance of convenience and irreparable losses and injuries to him. However, this Court has taken up the present case for hearing primarily on the point of maintainability and in view of the judgments rendered by the Hon'ble Supreme Court in the cases of Kihoto Hollohan (Supra.) and Kuldeep Bishnoi (Supra.) has found that it is not maintainable at this stage and, therefore, there is no question of grant of any interim protection to the petitioner as had been granted by learned Division Bench in W.P.(C) No.3687 of 2020. Otherwise also, in the said case, learned Division Bench had not entered into the merit of the allegation of defection as levelled against the petitioner and had granted interim relief to the petitioner having prima facie found that the Speaker had no jurisdiction to initiate suo moto proceeding for defection under Para 6 of the Tenth Schedule. Thus, the fact and circumstance of the present case is different from W.P.(C) No.3687 of 2020 and W.P.(C) No.3654 of 2020. In the said cases, the notice dated 18.08.2020 and the vires of rule 6(1) of Rules, 2006 were challenged.

The issue with respect to vires of the said Rule could not have been challenged before the Speaker, rather could have only been entertained and decided by learned Division Bench of this Court and, therefore, during pendency of the writ petition, stay was granted in favour of the petitioner by learned Division Bench. On the other hand, in the present case, the issue raised before this court can effectively be decided by the Speaker and thus there is no reason to entertain the present writ petition till passing of the order by the respondent no.1. Otherwise also, in the case of State of Assam Vs. Barak Upatyaka 24 D.U. Karmachari Sanstha, reported in (2009) 5 SCC 694, the Hon'ble Supreme Court has held that a precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reason assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim direction issued on the basis of prima facie finding is temporary arrangement to preserve the status quo till the matter is finally decided to ensure that the matter does not become either infructuous or a fait accompli before the final hearing.

42. Another contention of learned senior counsel for the petitioner is that the respondent no.1 has no jurisdiction to initiate a proceeding against the petitioner under Para 6 of the Tenth Schedule since the issue involved in the present case is of merger and not of defection and the Election Commission of India has set the issue at rest by recognizing the merger of JVM(P) into BJP.

43. To counter the argument, learned senior counsel for the respondent no.1 has invited attention of this court to Clauses 15 and 16 of the Order, 1968. Clause 15 speaks about the power of the Election Commission of India to decide as to which splinter group or rival section of a recognised political party should be considered as recognised political party and the decision of the Commission shall be binding on all such rival sections or groups. Further, Clause 16 provides that when two or more political parties join together to form a new political party, the Commission may decide as to whether such newly formed political party should be a National party or a State party and the symbol to be allotted to it.

44. Learned senior counsel for the respondent no.1 has also put reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Sadiq Ali & Another Vs. Election Commission of India & Others, reported in (1972) 4 SCC 664, and has submitted that the decision of the Election Commission of India is binding to the extent of deciding a question as to whether any of the rival sections or groups of a recognised political party, each of whom claims to be that party, is actually that party. The claim made in this respect is only for the purpose of grant of symbols in connection with the elections of 25 Parliament and State Legislatures and the decision of the Commission pertains to this limited matter.

45. In the case of Rajendra Singh Rana & Others Vs. Swami Prasad Maurya & Others, reported in (2007) 4 SCC 270, as has been relied upon by learned senior counsel for the respondent no.1, the Hon'ble Supreme Court has held that the Speaker acts under the Tenth Schedule only on a claim of disqualification being made before him in terms with para 2 of the Tenth Schedule. It has further been held that in a case where the 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 split in the original political party and they constitute the requisite number of legislators or that there has been a merger. In that context, the Speaker cannot say that he will first decide whether there has been a split or 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 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 plea 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. The Hon'ble Supreme Court in the case of Kuldeep Bishnoi (Supra.) has also held that determination of question of split or merger cannot be divorced from the motion before the Speaker seeking disqualification of the concerned Member or Members under Para 6 of the Tenth Schedule. The Speaker under the scheme of the Tenth Schedule does not have an independent power to decide that there has been split or merger as contemplated by Paras 3 and 4 respectively and such a decision can be taken only when the question of disqualification arises in a proceeding under Para 6 of the Tenth Schedule. It is only after a final decision is rendered by the Speaker under Para 6 of the Tenth Schedule, the jurisdiction of the High Court under Article 226 of the Constitution can be invoked.

46. In view of the judicial propositions laid down in the aforesaid cases, this Court is of the opinion that the said issues can effectively be 26 decided by the respondent no.1 while passing the final order and, thus, the present writ petition cannot be entertained in anticipation that the respondent no.1 will not decide the same. Since the matter is still sub- judice before the respondent no.1, it is not appropriate for this Court to make any comment on the merit of the cases of the respective parties at this stage.

47. Considering the facts and circumstances of the case, this Court is of the view that the present writ petition is not maintainable at this stage and the same is, accordingly, dismissed without entering into the merit of the claim of the petitioner.

48. Pending I.As. (if any) stand disposed of.

(Rajesh Shankar, J.) Sanjay/AFR

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