Gauhati High Court
Er T. L. Semdok vs Imtilemba Sangtam & 4 Ors on 12 November, 2014
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZOAM & ARUNACHAL
PRADESH)
WP(C) 175(K)/2014
1. IMTILEMBA SANGTAM
MLA, S/O LATE AKHAMONG, R/O ROOM NO. 305, LEGISLATORS HOME,
NAGALAND LEGISLATIVE ASSEMBLY KOHIMA 797001, NAGALAND
2. DR. T.M. LOTHA, MLA,
S/O LATE THUNGTSOMO EZUNG, R/O ROOM NO. 201, LEGISLATORS HOME,
NAGALAND LEGISLATIVE ASSEMBLY KOHIMA 797001, NAGALAND.
3. MMHONLUMO KIKON, MLA
S/O LATE TSENYIMO KIKON, R/O ROOM NO. 801, LEGISLATORS HOME, NAGALAND
LEGISLATIVE ASSEMBLY , KOHIMA 797001, NAGALAND.
... PETITIONRES
VERSUS
1. SPEAKER,
NAGALAND LEGISLATIVE ASSEMBLY KOHIMA, ASSEMBLY SECRETARIAT, NAGALAND.
2. SRI CHOTISUH SAZO, MLA,
NAGALAND LEGISLATIVE ASSEMBLY KOHIMA, ASSEMBLY SECRETARIAT, NAGALAND.
3. SECRETARY,
NAGALAND LEGISLATIVE ASSEMBLY SECRETARIAT, KOHIMA, NAGALAND.
4. ER. T.L. SEMDOK,
VICE PRESIDENT & IN-CHARGE OF NAGALAND STATE UNIT OF NATIONALIST
CONGRESS PARTY, R/O PADUMPUKHURI, P.O. DIMAPUR, PIN 797112, NAGALAND.
RESPONDENTS.
For the petitioners : Mr. S.P. Jain, Sr. Advocate
Mr. S. S. Dey, Sr. Advocate,
Mr. M. Nath,
Mr. A. Bhattacharjee, Advocate
For the respondents : Mr. N. Dutta, Sr. Advocate
Mr. A. Dhar,
Mr. D. K. Mishra, Sr. Advocate,
Ms. S. Jahan, Advocate,
Mr. K.K. Das, Advocate
WA 297/2014
ER T. L. SEMDOK
VICE PRESIDENT & IN-CHARGE OF NAGALAND STATE UNIT OF NATIONALIST
CONGRESS PARTY,
R/O PADUMPUKHURI, P.O. DIMAPUR, PIN 797112, NAGALAND. ... APPELLANT
Versus
1. IMTILEMBA SANGTAM
MLA, S/O LATE AKHAMONG, R/O ROOM NO. 305, LEGISLATORS HOME,
NAGALAND LEGISLATIVE ASSEMBLY KOHIMA 797001, NAGALAND
2
2. DR. T.M. LOTHA, MLA,
S/O LATE THUNGTSOMO EZUNG, R/O ROOM NO. 201, LEGISLATORS HOME,
NAGALAND LEGISLATIVE ASSEMBLY KOHIMA 797001, NAGALAND.
3. MMHONLUMO KIKON, MLA
S/O LATE TSENYIMO KIKON, R/O ROOM NO. 801, LEGISLATORS HOME, NAGALAND
LEGISLATIVE ASSEMBLY , KOHIMA 797001, NAGALAND.
4. SPEAKER,
NAGALAND LEGISLATIVE ASSEMBLY KOHIMA, NAGALAND.
5. SECRETARY,
NAGALAND LEGISLATIVE ASSEMBLY, KOHIMA, NAGALAND.
- Respondents
WA 298/2014
1. SPEAKER NAGALAND LEGILATIVE ASSEMBLY SECRETARIAT
KOHIMA, NAGALAND
2. SECRETARY,
NAGALAND LEGISLATIVE ASSEMBLY SECRETARIAT, KOHIMA, NAGALAND.
Versus
1. IMTILEMBA SANGTAM, MLA
S/O LATE AKHAMONG, R/O ROOM NO. 305, LEGISLATORS HOME, NAGALAND
LEGISLATIVE ASSEMBLY, KOHIMA 797001, NAGALAND.
2. DR. T.M. LOTHA, MLA
S/O LATE THUNGTSOMO EZUNG, R/O ROOM NO. 201, LAGISLATORS HOME,
NAGALAND LEGISLATIVE ASSEMBLY, KOHIMA 797001, NAGALAND.
3. MMHONLUMO KIKON, MLA
S/O LATE TSENYIMO KIKON, R/O ROOM NO. 801, LEGISLATORS HOME, NAGALAND
LEGISLATIVE ASSEMBLY, KOHIM 797001, NAGALAND.
4. ER. T.L. SEMDOK,
VICE PRESIDENT & IN-CHARGE OF NAGALAND STATE UNIT OF NATIONALIST
CONGRESS PARTY, R/O PADUMPUKHURI, P.O. DIMAPUR, PIN 797112, NAGALAND.
- Respondents
PRESENT
HON'BLE THE CHIEF JUSTICE (ACTING) MR K. SREEDHAR RAO
HON'BLE MR. JUSTICE UJJAL BHUYAN
Advocates present:
For the petitioners : Mr. D.K. Mishra, Sr. Advocate
Mr. K. K. Das,
Ms. S. Jahan,
Ms. N. Upadhayay (in WA 297/14)
Mr. N. Dutta, Sr. Advocate
Mr. A. Dhar,
Mr. R. Kothandaraman, Advocates
(in WA 298/2014)
For the respondents : Mr. S. S. Dey, Sr. Advocate,
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Mr. S.P. Jain, Sr. Advocate
Mr. M. Nath,
Ms. A. Bhattacharjee,
Date of hearing : 12.11.2014
Date of judgment : 12.11.2014
JUDGEMENT AND ORDER
[ORAL]
(K. Sreedhar rao (chief justice (acting)
1. The 12th Nagaland Legislative Assembly was constituted with total
elected members of 60. In the Assembly, the Naga Peoples Front (NPF)
had 38 MLAs, the Congress had 8 elected MLAs, the Nationalist
Congress Party (NCP) had 4 MLAs, the Janata Dal United (JDU) had one
MLA, the Bharatiya Janata Party (BJP) had one MLA and 8 independent
MLAs. In the four of the MLAs of NCP, the President of State Unit of
NCP was also an MLA and he along with other two MLAs made a
petition to the Speaker on 16.06.2014 making a claim that the State unit of
NCP has merged with the BJP and that all the three MLAs of NCP have
become members of the BJP. In accordance with the resolution, dated
16.06.2014.
2. The Speaker after entertaining the petition regarding merger,
issued notices to the President and Secretary of the NCP of National Unit
and both of them wrote to the Speaker that there is no merger and stated
that three of the MLAs, who have joined the BJP, have voluntarily left the
party. The national President of NCP appointed one Semdok as the
acting President of the State unit of the NCP. The said Semdok also filed
a petition before the Speaker seeking disqualification of three of the
MLAs who claimed to have joined the BJP. That apart, he also filed
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detailed objections to the claim of merger put forth by three of the MLAs
stating that there has been no legal merger. Three of the MLAs, who
claimed to have joined the BJP, have left their political party from which
they got elected as MLAs and joined the BJP. Such a conduct on the part
of the three MLAs amounts to voluntarily joining other political party as
defined in para 2(1)(a) and that they have to be disqualified.
3. The Speaker on 25.08.2014 passed two different orders one in
respect of the petition making a claim for merger and one in respect of
the petition filed by Semdok seeking disqualification under "The
Member of Nagaland Legislative Assembly (Disqualification on ground
of Defection) Rules, 2003". The Speaker held that the petition filed by
Semdok seeking disqualification is dismissed as infructuous and also
dismissed for not having filed the petition in the format prescribed by
anti-defection rules of Nagaland Legislative Assembly. While in respect
of the claim of merger, the petition submitted claiming merger also came
to be dismissed holding that there is no merger and found that since
there is no valid merger in accordance with law, three of the MLAs are
disqualified.
4. The three of the MLAs, who have been disqualified, filed WP(C)
No.175(K)/2014. The learned Single Judge at Kohima Bench, by an
interim order, suspended the order of the Speaker. As against the said
order, the Speaker has filed WA 298/2014 and WA 297/2014 is filed by
Semdok on whose instance on the basis of the objection statement filed
by him, three of the MLAs were disqualified. In course of hearing of the
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writ appeals on interim order, at the request of all the parties to the
appeals, the writ petition was withdrawn from the file of the learned
Single Judge from Kohima Bench and taken up for hearing by this
Division Bench.
5. For convenient reference, hereinafter, in the course of discussion,
we refer to the three disqualified MLAs as petitioners, the appellant
Semdok as respondent No.4 and the Speaker as respondent No.1. The
other respondents in the writ appeals and in the writ petition are only
proforma parties. Hence, no specific reference would be made to them in
course of the discussion.
6. The learned Senior counsel Sri Satya Pal Jain relied upon the
decision of the Supreme Court in Rajendra Sing Rana and others Vs.
Swami Prasad Maurya and others, reported in (2007) 4 SCC 270, which
approved the ratio laid down by the Full Bench of the Punjab and
Haryana High Court in Prakash Singh Badal Vs. Union of India (AIR
1987 P&H 263), wherein it is held that "the Speaker would have the
jurisdiction in the matter only if any question arises as to whether a member of
the House has become subject to disqualification and the same has been referred
to him for a decision. The purpose of requirement of a reference obviously is that
even when a question as to the disqualification of a member arises, the Speaker is
debarred from taking suo motu cognizance and he would be seized of the matter
only when the question is referred to him by any interested person."
(1) With reference to the said ratio, it was argued that when the
petition filed by the respondent No.4 for disqualification came to be
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dismissed as infructuous on the ground that the petition is not filed in
accordance with the format, it was impermissible to have disqualified the
MLAs on the basis of the petition filed by the petitioners for recognizing
the merger and exercising suo motu power.
(2) Reference is made to paragraph 4(2) of the Tenth Schedule, which
reads as follows:
"4.(2) For the purposes of sub-paragraph (1) of this 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."
7. It is argued that the deeming provision in paragraph 4(2) makes it
explicitly clear that in the event of 2/3rd elected members of the assembly
were to endorse merger and join other political party, they would not
suffer disqualification under paragraph 2(1). Para 4(2) declares that
merger of 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 of the
members of the legislative party concerned have agreed to such merger.
8. The counsel referred to the Full Bench decision of the Punjab and
Haryana High Court in Baljit Singh Bhullar Vs. Speaker, Punjab
Vidhan Sabha, reported in 1997 (3) PLR 367. It is argued that in the said
decision, the Full Bench in paragraph 10 has made the following
observations:
"10......................................................................................... There is no
provision like sub-paragraph (2) of paragraph 4 incorporated in paragraph 3
of the 10th Schedule. As per paragraph 4(1) if there is a merger of the original
political party with the other political party, then it can be taken as merger, but
for the purpose of recognizing that merger by the Speaker, such measure is
dependent on any action by the members of the Legislature party of that
political party concerned while in the case of split, developments take place
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entirely outside the House. It is pertinent to note that paragraph 4(2) reads that
the merger of the original political party of a member of a House shall 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. The words used
therein are not that "no merger" of a political party with any other party can be
deemed to have taken place unless at least two third members of the Legislature
party concerned if agreed or ratified such a merger taken outside the House. It
does not contemplate arty merger outside the House. The deeming provision as
discussed above and contained in sub paragraph (2) of paragraph 4 clearly is
indicative of the fact that the merger contemplated in paragraph 4 is a merger
of the political party consisting of the members of the Legislature with Another.
political party. If by majority of two-third members of that Legislative members
belonging to that particular political party agree, then it shall be taken that
political party has merged with another. political party. Such a situation is also
recognized by the apex Court in Kihota Hollohon v. Achihu, (AIR 1993 S.C.
413) wherein it has been observed by the Supreme Court as follows:-
"The underlying premise in declaring an individual act of defection as
forbidden is that lure of office or money could be presumed to have prevailed.
Legislature has made this presumption on its own perception and assessment of
the extent standards of political proprieties and morality. "At the same time
legislature envisaged the need to provide for such "floor-crossing" on course of
conduct commended itself to a member of elected representatives might, in
itself, lend credence and reassurance to a presumption of bonafides. The
presumptive impropriety of motives progressively weakens according as the
members sharing the action and there is nothing capricious and arbitrary in
this legislative perception of the distinction between defection and split."
9. It is argued that the said decision is although of persuasive value
but squarely applies to the facts of the case. Therefore, the petitioners do
not suffer any disqualification. The Speaker was erroneous in
understanding the purport and the legal implications of paragraph 4(2)
of the Tenth Schedule.
10. Per contra, Mr. D.K. Mishra and Mr. N. Dutta, learned Senior
counsel, appearing for the respondent No.1 and 4, submitted the
following points to support the order of disqualification:
11. The learned Senior counsel referred to the decision of the Supreme
Court in Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar
Legislative Council, reported in (2004) 8 SCC 747. In paragraph 16 of the
said decision, it is held that disqualification rules are only procedural
8
rules and being a subordinate legislation they cannot override the effect
and jurisdiction of the Speaker to exercise his power under paragraph 6
of the Tenth Schedule. It is not always necessary that the petition for
disqualification should be in prescribed format under the Rules and strict
interpretation of Rules is not permitted to subvert the object of the Tenth
Schedule. In view of the said ratio, it was argued that paragraph 6
envisaged that if any question arises as to whether a member of a House
has become the subject of disqualification in the schedule, the question
shall be referred to the decision of the Chairman or as the case may be
Speaker of such House and his decision shall be final. In this regard, it is
submitted that the pertinent question of disqualification arose for
consideration before the Speaker by virtue of the objection statement
filed by respondent No.4 in which in detail, he has denied the claim of
merger and there was specific prayer seeking disqualification under
paragraph 2(1) of the Tenth Schedule. In that view, it was argued that the
Speaker did not exercise any suo motu jurisdiction as contended by the
petitioners and that a relevant and pertinent question of disqualification
was very much in the pleadings of the respondent No.4. As such, the
Speaker has properly exercised the jurisdiction as contemplated under
paragraph 6 and rendered a decision, which is sound and proper.
12. The learned Senior counsel Sri D.K. Mishra extensively referred to
the pleadings of the petitioners in WP(C) 175(K)/2014, in particular, the
averments made in paragraph 3, 4 and 6 to contend that there is an
unequivocal admission of the fact that the petitioners were elected as
candidates representing the NCP, which is a nationalist party. They also
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admit that there is no merger at the national level. They unequivocally
claim that merger has taken place only at the State level. The document
produced before the Speaker in support of the merger consists of names,
addresses and signatures of only 12 persons out of whom three are the
MLAs who are petitioners, four are office bearers of the youth unit of the
NCP and two of them are Presidents of the District units. The said
document, which is annexed as Annexure-1 in the writ petition, clearly
discloses that even at the State level, there has been no whole hog
merger, only few persons of the frontal organisations have passed the
resolution to the effect that there has been merger of the State unit of the
NCP with the BJP.
13. Counsel for the respondent No.4 has referred to the decision of the
Supreme Court in Jagjit Singh Vs. State of Haryana, reported in (2006)
11 SCC 1. In paragraph 72 of the said decision, the following
observations are made:
"72. The Full Bench, after rightly holding that 'the original political party in
relation to a member of the House is a political party to which he belongs'
erroneously held that 'the Parliament intended to treat the State unit of a
political party as a separate entity for the purpose of determining whether there
is any disqualification of a member of the House of that State Legislature'. In
the case of split, one-third members of State Legislature belonging to that
political party must form a group to make the split effective within the State
Legislature but it does not lead to the conclusion that the Parliament intended
to treat State Unit of a political party as a separate entity for the purposes of
the benefit of paragraph 3. Paragraph 1(c) defining original political party and
explanation as given in paragraph 2(1) have already been noticed hereinbefore.
It is clear from a bare reading thereof that the elected member belongs to the
political party by which he is set up as a candidate for election as such member.
From the plain language of these provisions, it cannot be held that for the
purposes of the split, it is the State Legislature party in which split is to be seen.
If a member is set up by a National Party, it would be no answer to say that
events at National level have no concern to decide whether there is a split or
not. In case a member is put up by a National Political party, it is split in that
party which is relevant consideration and not a split of that political party at
the State level."
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14. In the light of the above observations, it was argued that although
the decision is with reference to the provisions contained in paragraph 3,
the split in the case of original political party is interpreted to mean split
at the national level and not at the State level would not constitute a
valid split. Reference is also made to Article 39 of the Party Constitution
of the NCP, which reads thus:
" Article 39 : Dissolution of the party or merger of the party with any other
party:
The party can be dissolved or merged with any other party only if the decision
to do so is taken by the meeting of the National Committee of the party,
specially called for that purpose, provided that
a) The National Committee is called by the President himself or by any General
Secretary specifically authorised by him for convening the meeting.
b) One month's clear notice of the meeting with the specific agenda of
dissolution of the party or merger of the party with any other party is given to
all the members of the National Committee.
c) 75% of the total number of elected members of the National Committee and
State Committee Presidents attend the meeting and not less than 90% of the
members present vote for the adoption of the Resolution for dissolution or
merger, as the case may be."
15. The Party Constitution as per Article 39 does envisage merger or
dissolution. Merger as per the Party Constitution can happen only when
there is a specific meeting convened with specific agenda and 75% of the
total number of elected members of the National Committee and the
State President attends the meeting and not less than 90% of the
members present should vote for dissolution or merger. Only in such a
case, there is a valid merger. In the present case, with reference to
Annexure-1, it was argued that there has been no valid merger according
to law. The Speaker has rightly considered the materials placed before
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him by the Secretary and the President of the national unit of the NCP in
coming to the conclusion that there is no valid merger.
16. In paragraph 15 of the decision of the Supreme Court in Dr.
Mahachandra Prasad Singh's case, the following observations are made:
"Therefore, for holding that a member of a House has incurred a
disqualification under Clause (b) of paragraph 2(1) findings on several aspects
will necessarily have to be recorded. Similarly, for application of paragraph 4,
inquiry has to be made whether the original political party merged with another
political party, whether the member of the House has become member of such
other political party or, as the case may be, of a new political party formed by
such merger or whether he has not accepted the merger and opted to function
as a separate group."
17. Placing reliance on the said observations, it is argued that the
Speaker has necessary jurisdiction to enquire into the question of merger
under paragraph 4. In view of the said ratio, it is imperative and
necessary for the Speaker to go into the question of valid merger. The
petitioners, who are members of the NCP, which is a nationalist party
and having elected as candidates set up by the NCP, are bound by the
Party Constitution and the claim of merger set up by them should be in
accordance with the party constitution.
18. It is argued that combined reading of paragraph 4(1) and 4(2)
would indicate that the claim of merger would be valid if it is at the
national level and as per the party Constitution. Further, the elected
representatives endorsing such merger should necessarily constitute
2/3rd of elected members, only in such situation, when the elected
members join the other party, would not suffer disqualification. In other
words, in the event of valid merger at the national level as per the party
constitution, the elected members of the House endorsing such merger if
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it is less than 2/3rd, it would not constitute a valid merger under
paragraph 4 and such members, who are less than 2/3rd joining other
party under the pretext of merger, will have to suffer disqualification.
The members, who do not endorse the merger and not join other political
party, would be treated as a separate group.
19. Reference is also made to the decision of the Punjab and Haryana
High Court in Kuldeep Bishnoi Vs. Speaker, Haryana Vidhan Sabha,
Chandigarh (CWP No. 2900 of 2013, date of decision : 19.10.2014).
Although the decision is rendered by a Single Judge and has only
persuasive value, but, however, the logic and ratio laid down in the said
decision squarely applies to the facts of the case. In Kuldeep Bishnoi's
case, it is held that merger claim should be of the original political party
with the other party at national level.
20. Sri N. Dutta, learned Senior counsel, vehemently argued that the
words "if and only if" employed in paragraph 4(2) has a pertinent
significance, only when 2/3rd of the members of the Legislative
Assembly agree to the merger, it would only save the members joining
the other party on the pretext of merger from disqualification. If the
legislative members constitute less than 2/3rd endorse merger and join
another party would be liable for disqualification.
21. Sri N. Dutta, learned Senior counsel, vehemently placed emphasis
upon the objects and reasons for incorporation of the provisions of
paragraph 3 and 4 in the Tenth Schedule. Copious reference was also
made to several factual instances of unholy horse trading taking place
13
amongst the legislators to bring about unholy alliances for extraneous
considerations. In order to curb the malise of these defections, paragraph
3 and 4 brought into effect. However, the provisions of paragraph 3 were
also found to be misused. Therefore, the Parliament, in its wisdom,
omitted paragraph 3. However, paragraph 4 is retained. The rigour of
paragraph 4 is so intense that the conditions to save the legislators from
joining other political party deserting the political party from which they
got elected was sought to be curbed. However, an exception was made in
paragraph 4(1) and 4(2) to save such legislators from disqualification
when they fulfil the aforesaid condition of valid merger at national level
and supported by 2/3rd of the elected members to save from
disqualification envisaged under paragraph 2(1) of the Tenth Schedule.
22. Mr. S. S. Dey, learned counsel, has referred to the observations
made by the Full Bench of Punjab and Haryana High Court in Baljit
Singh Bhullar Vs. Speaker, Punjab Vidhan Sabha, reported in 1997 (3)
PLR 367, particularly, para 9 and 10 to contend that if majority of the
2/3rd members of that legislature belonging to that political party agree,
then, it shall be taken that the political party has merged with other in
view of the deeming provisions in paragraph 4(2). The learned counsel
also referred to the decision of the Supreme Court in Keshavan Madhava
Menon Vs. State of Bombay (1951 SCR 228) to argue that the salutary
principles of interpretation require that when the text of the provision is
simple and clear, one has to be guided by the language of the provision
and not to be swayed away and influenced by spirit and object of the
legislation.
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23. Reference is also made to the decision of the Supreme Court
in State of Maharastra Vs. Laljit Rajshi Shah and others (AIR 2000 SC
937). In the said decision, in para 8, it is laid down as follows:
"It is well known principle of construction that in interpreting a
provision creating a legal fiction, the Court is to ascertain for what
purpose the fiction is created and after ascertaining this, the Court is to
assume all those facts and consequences which are incidental or inevitable
corollaries to giving effect to the fiction. But in so construing the fiction,
it is not to be extended beyond the purpose for which it is created or
beyond the language of the Section by which it is created.
.......................................................................................
When a person is "deemed to be" something, the only meaning possible is that whereas he is not in reality that something, the Act of legislature requires him to be treated as if obviously for the purpose of the said Act and not otherwise."
24. In view of the said principle of law, Mr. S. S. Dey, learned counsel, argued that the provisions of paragraph 4(2) are plain and simple and the same has to be interpreted by its language without any external aids like object and spirit of the Constitution or any other extraneous, passionate or emotional considerations.
25. Upon stern consideration of the submissions made at the Bar, the following questions would arise for consideration:
(1) Whether the order of disqualification made by the Speaker on an application submitted by the petitioners for recognising merger amounts to suo motu exercise and is without jurisdiction?
(2) Whether there has been a valid merger as contemplated under paragraph 4(1) and whether the petitioners joining the BJP on the claim of merger would suffer any disqualification?15
(3) Whether the petitioners are saved from disqualification under paragraph 4(2) and what is the scope and purport of paragraph 4(2) of the Tenth Schedule?
26. In respect of the first question, it could be seen that the decision of the Supreme Court in Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council, reported in (2004) 8 SCC 747, it is held that strict rules of pleadings are not applicable in respect of proceedings before the Speaker under paragraph 6 of the Tenth Schedule. It is also a settled law that the Speaker cannot suo moto assume jurisdiction to disqualify the elected representatives unless a question arises before him.
27. In the present case, we could see that respondent No.4 although filed a separate petition seeking disqualification, which was not in conformity with the Rules nonetheless he had filed detailed objections rebutting the claim of merger at the national level and thus contended that merger at the State level is not valid in law and not in accordance with Article 39 of the Party Constitution of the NCP. He has also sought specifically disqualification of the petitioners. Therefore, in view of the decision of the Supreme Court in Dr. Mahachandra Prasad Singh's case, it cannot be said that the Speaker has acted without jurisdiction. The detailed objections filed by respondent No.4 did give rise to a question of the propriety or the conduct of the petitioners in joining the BJP and the question of disqualification. Therefore, the Speaker was well within his right to enquire into the question of disqualification of the petitioners. The first question is answered in negative.
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28. Upon stern consideration of the submissions made at the bar, it is necessary to refer the relevant provisions of paragraph 1, 2 and 4, which are extracted hereinbelow:
"1. Interpretation.- In this Schedule, unless the context otherwise requires,-
(a) "House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;
(b) "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 3 or, as the case may be, 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;
(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;
2. Disqualification on ground of defection.-(1) Subject to the provisions of paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House-
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.- For the purposes of this sub-paragraph,-
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.
4. Disqualification on ground of defection not to apply in case of merger.- (1) 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 members of his original political party-
(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) 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 original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this 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."17
29. At the outset, it is noticeable that the extinct paragraph 3 and the extant paragraph 4 are not meant to curb the defections but serve to promote the defections only under certain conditions and there are exception to paragraph 2(1) of the Tenth Schedule, the Supreme Court in Jagjit Singh's case, in respect of split has held that the split contemplated should be at national level and the split at the State level would not be a valid split.
30. The Supreme Court in Dr. Mahachandra Prasad Singh's case, has laid down that "...........for application of para-4, enquiry has to be made whether the original political party merged with another political party, whether the member of the House has become member of such other political party or, as the case may be, of a new political party formed by such merger or whether he has not accepted the merger and opted to function as a separate group." The said observations pointedly refer to the provisions of paragraph 4(1). There is no reference made to the provisions of paragraph 4(2).
31. The Supreme Court, in its decision in Rameswar Prasad (VI) Vs. Union of India, reported in (2006) 2 SCC 1, has not decided the purport and scope of paragraph 4(1) and (2) and has kept open that question, which is evident from the following observations made in paragraph 161:
" It is not necessary for us to examine for the present purpose, para 4 of the Tenth Schedule dealing with merger and/or deemed merger. In this view the question sought to be raised that there cannot be merger of legislative party without first merger of the original party, is not necessary to be examined. The contention sought to be raised was that even if two-third legislators of LJP legislative party had agreed to merge, in law there cannot be any merger without merger of the original party and even in that situation those two-third MLAs would have earned disqualification. Presently, it is not necessary to decide this question. It 18 could have been gone into by the Governor for recommending dissolution."
32. Paragraph 4(1) inhers and suggest an inevitable concept of split. One group endorsing the split and joining the other political party. The other group, which do not agree to merger and opt to function as a separate group. So also, Article 39 of the NCP Constitution does not envisage a whole hog merger. There is evident distinction between paragraph 3 and paragraph 4. In the extinct paragraph 3, there is no deeming provision. The Supreme Court in Dr. Mahachandra Prasad Singh's case has held that an enquiry regarding merger is necessary. In the said decision, the observations pointedly refer only to the provisions of paragraph 1(a) and 1(b) and there is no reference to paragraph 2. The argument that in order to constitute valid merger under paragraph 4(1) and (2), there should be a valid merger according to the party constitution and also that 2/3rd members shall endorse such merger appears to be an untenable argument. The learned counsel for the respondents strenuously argued that the requirement of 2/3rd members endorsing the merger in paragraph 4(2) is relatable to merger envisaged under paragraph 4(1) is also not an acceptable argument.
33. The distinction between paragraph 1 and 2 lies in the fact that in paragraph 1, there should be a valid merger according to the party constitution and elected members of the House endorsing that merger even they are less than 2/3rd and join other political party, they would be saved from disqualification and those who do not agree to the merger would be treated as a separate group. It is only in the case of valid merger, the legislators endorsing merger are less than 2/3rd joining the other party, when the Speaker will have the jurisdiction to make an enquiry regarding valid merger. But when 2/3rd members of the House endorse the merger and join other political party, it 19 would be inscruitable for the Speaker to make an enquiry since the deeming provisions in paragraph 4(2) declares and makes it conclusive proof of fact of merger of original political party.
34. The argument that the last words 'such merger' in paragraph 4(2) should be relatable to valid merger according to the party constitution is untenable. Such merger should be understood in the context of the provisions of paragraph 2 only. If the argument of the counsel for the respondent Nos.1 and 4 is accepted, the very purpose of the deeming provisions of paragraph 4(2) would be rendered redundant. The argument that such a view would amount to re-inventing the ghost of extinct paragraph 3 in paragraph 4(2) is an incorrect view. On the other hand, the plain language of the deeming provision of paragraph 4(2) supports the view taken by us and it only amounts to discovering the correct meaning and effect of the deeming provision. Therefore, we are of the opinion that by virtue of the deeming provisions in paragraph (2), 2/3rd elected members of the House have endorsed the merger and joined BJP. The claim of merger set up by them is inscruitable on the part of the Speaker. The deeming provisions will come into effect and such merger claimed by them is a valid merger within the meaning of paragraph 4(2). Consequently, they do not suffer disqualification under paragraph 4-2(1).
35. In view of the reasons and discussions made above, the writ petition is allowed. The order of the Speaker disqualifying the petitioners is set aside. The writ appeals are disposed of accordingly.
JUDGE CHIEF JUSTICE (ACTG) dutt