Gujarat High Court
Devabhai vs Shri on 3 June, 2008
Author: K.M.Thaker
Bench: K.M.Thaker
LPA/583/2008 9/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 583 of 2008 IN SPECIAL CIVIL APPLICATION No. 5343 of 2008 with CIVIL APPLICATION No. 6320 of 2008 ===================================================== DEVABHAI PARBATBHAI AVADIA & 3 - Appellant(s) Versus SHRI P D WAGHELA COMPETENT AUTHORITY APPOINTED & 2 - Respondent(s) ===================================================== Appearance : MR ND NANAVATY FOR MR NAVIN PAHWA FOR M/S THAKKAR ASSOC. for Appellant(s) : 1 - 4. None for Respondent(s) : 1 - 2. MR SN SHELAT FOR MR HARSHADRAY A DAVE for Respondents (s): 3, MR HARDIK A DAVE for Respondent(s) : 3, ===================================================== CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 03/06/2008 ORAL ORDER
1. The present Letters Patent Appeal is preferred against the common C.A.V. judgement and order dated 15/05/2008 whereby the Court has dismissed the petition, being Special Civil Application No. 5343/2008. The said petition was preferred against the order dated 14/03/2008 by which the competent authority rejected objection-application by present appellants raising preliminary contention as regards the maintainability of the proceedings before the concerned authority. As mentioned above, the said order was challenged by way of Special Civil Application No. 5343/2008 and the petition has been rejected. As a result of the aforesaid proceedings and the orders, now the Disqualification (Reference) Application No. 14/2007, is required to be heard on merits.
2. Mr. N.D. Nanavaty, Senior Counsel with Mr. Navin Pahwa, learned advocate has appeared for the appellants and has inter alia submitted that the order dated 14/03/2008 and the common CAV judgement dated 15/05/2008 in Special Civil Application No. 5343/2008 are erroneous and the learned Judge has erred in not appreciating the provisions and that the same are not merely procedural or directory but they are mandatory. Mr N.D Nanavaty, learned Senior Counsel relied upon the judgement in the case of Dr. MAHACHANDRA PRASAD SINGH Vs CHAIRMAN, BIHAR LEGISLATIVE COUNCIL AND ORS. reported in 2005 SC 69 of which paragraph 8 and 18 reads as under;
ýS8. Paragraph 6 of the Tenth Schedule attaches finality to the decision of the Chairman or the Speaker of the House on a question as to whether a member of a House has become subject to disqualification under the Schedule. Paragraph 7 excludes the jurisdiction of the Court in respect of any matter connected with disqualification of a member of a House under the Schedule as it says that notwithstanding anything in the Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of House under the Schedule. This provision being in the Constitution itself, unlike a statutory provision, it effects the power of judicial review of the High Court and Supreme Court under Articles 226, 227 and 136 of the Constitution. Further, in view of the provision contained in sub-paragraph (2) of paragraph 6 the proceedings in relation to disqualification of a member of the House shall be deemed to be proceedings in Parliament within the meaning of Article 122 or in the Legislature of a State within the meaning of Article 212, as the case may be. These are identical provisions which provide that validity of any proceedings in Parliament or Legislature shall not be called in question on the ground of any alleged irregularity in procedure. The vires of Tenth Schedule was challenged on several grounds including the ground that the power of judicial review being part of the basic structure of the Constitution, cannot be taken away by a constitutional amendment. The issue was considered by a Constitution Bench in Kihoto Hollohan v. Zachillhu & Others 1992 (Supp) 2 SCC 651, where Venkatachaliah, J. speaking for the majority held as under
in para 111 of the reports :
ýSIn the result, we hold on contentions (E) & (F) That the Tenth Schedule does not, in providing for an additional 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 Speaker/Chairman 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 112(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case (AIR 1965 SC 754) 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.ýý This authoritative pronouncement clearly lays down that the decision of the Chairman or the Speaker of the House can be challenged on very limited ground, namely, violation of the constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity and further a mere irregularity in procedure can have no bearing on the decision.ýý ýS18. There cannot be any dispute that sub-rules (1), (2) and (3) of Order VI Rule 15 CPC were complied with. Learned counsel for the petitioner has, however, laid great emphasis of the fact that Shri Salman Rageev had not filed any affidavit in support of his petition and consequently the provisions of sub-rule (4) of Order VI Rule 15 CPC which provides that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings were not complied with. For the reasons stated earlier, we are of the opinion that the provisions of Rules 6 and 7 are directory in nature and on account of non-filing of an affidavit as required by sub-rule (4) of Order VI Rule 15 CPC, the petition would not be rendered invalid nor the assumption of jurisdiction by the Chairman on its basis would be adversely effected or rendered bad in any manner. A similar contention was raised before a Bench presided by Venkatchaliah, C.J. in Ravi S. Naik v. Union of India, 1994 (Supp) 2 SCC 641, but was repelled. The relevant portion of para 18 of the reports is being reproduced below:
ýS18. .....The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case, 1992 (Supp) 2 SCC 651. Moreover, the filed of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Holloham case.ýý
3. The judgement in the case of UDAY SHANKAR TRIYAR Vs RAM KALEWAR PRASAD SINGH AND ANR reported in 2006 (1) SCC 75 has also been relied upon. Mr Nanavaty, learned Senior Counsel, in particular relied upon paragraph 17 of the said judgement wherein the Hon'ble Apex Court has held as under;
ýS17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognized exceptions to this principle are :
(i) Where the statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
(ii) Where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) Where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) Where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court;
(v) In case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.ýý
4. The learned Senior Advocate for the appellant also relied upon the judgement in Special Civil Application No. 11015/2001, which is said to have been confirmed in Letters Patent Appeal No. 985/2003, and also on the judgement in the writ petition being Special Civil Application No. 20042/2007. He further submitted that the other petitions against the same order are scheduled to come up for hearing on 16/06/2008, and, therefore, it would be appropriate that the authority does not proceed further with the hearing in the matter pending before him.
5. On the other hand, Shri S.N. Shelat, learned Senior Advocate for Mr. Dave, learned advocate for respondent, has opposed the appeal as well as the request for interim relief. He has submitted that the order dated 14/03/2008 has been confirmed by this Court in common CAV judgement and order passed in Special Civil Application No. 5343/2008. Thus, in view of the fact that now there are concurrent conclusions against petitioner, any stay against the further proceedings would not be justified. Mr. S.N. Shelat, learned advocate has relied upon the judgement in Special Civil Application No. 9003/2007.
6.
It would also be appropriate to take into account the judgement of the Hon'ble Supreme Court in the case of VIDYAWATI GUPTA & ORS Vs. BHAKTI HARI NAYAK & ORS reported in 2006 SC 1194. In light of the facts and circumstances of the present case and in view of the judgements referred to and relied upon by the contesting parties and in light of the issues which are raised in the appeal, the appeal would require further detail consideration. Hence NOTICE returnable on 17/06/2008.
7. However, sofar as the interim relief is concerned, it would not be justified to stay the further hearing of the Referenceý Application pending before the competent authority particularly in view of the prescribed time limit within which such applications are required to be decided and also in view of the fact that now there are concurrent conclusions against the point urged by the petitioner. Thus, it will be open for the authority to proceed further with the hearing after affording reasonable opportunity of hearing to both the sides. However, the order, which may be passed by the authority, shall not be implemented, if passed on or before 17/06/2008, until 24/06/2008 and shall be placed on record of the present appeal either by the appellants or the respondents immediately after the same is passed.
8. Mr. Dave, learned advocate submitted that the reply has already been filed. Mr. Pahwa, learned advocate, still insists that the reply has not been filed and requests that time for filing reply may be granted. If the reply has not been filed, then the authority shall grant reasonable time to the present appellants to file reply and the matter shall be heard thereafter.
(K.M. THAKER, J.) siji