Jharkhand High Court
Pradip Yadav vs Speaker on 28 March, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.1299 of 2019
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Pradip Yadav ...... Petitioner
Versus
Speaker, Jharkhand Vidhan Sabha, through the Secretary & Ors.
...... Respondents With W.P.(C) No.1301 of 2019 Babulal Marandi ...... Petitioner Versus Speaker, through the Secretary, Jharkhand Vidhan Sabha & Ors.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. R.N. Sahay, Sr. Advocate : Mr. Yashvardhan, Advocate For the Respondent : Dr. Ashok Kumar Singh, Sr. Advocate (Election Commission of India) : Mr. Jai Prakash, Sr. Advocate (Speaker, Legislative Assembly, Jharkhand)
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03/Dated 28th March, 2019 Heard the parties.
Both the writ petitions have been heard on 26th March, 2019. These writ petitions have been pressed by the learned counsel appearing for the petitioners who has relied upon certain judgments but the copy of the same has not been provided to the learned counsel for the Hon'ble Speaker and The Election Commission of India, therefore the matters have been adjourned with a direction upon the learned counsel for the petitioners to furnish the list of judgments so that the learned counsel appearing for the respondents may go through it and with their consent the matters have been directed to be listed on 28.03.2019.
The matters have been argued at length by both the parties. 2 These writ petitions are filed under Article 226 of the Constitution of India wherein order passed by the Hon'ble Speaker, Jharkhand Legislative Assembly, dated 20.02.2019, has been assailed.
The following points have been urged by the learned counsel for the petitioners:-
The 10th Schedule was added to the Constitution by virtue of 52nd amendment, 1985, the underlying objects and reasons is to deal with the evil of political defections by the Member of the State Legislation who has been elected as a candidate set up by a political party and a nominative Member of Legislature or State Legislator who is a Member of political party at that time he takes a seat or who becomes a member of the political party within six months after he takes his seat, would be disqualified on the ground of defection if he voluntarily relinquishes membership of such political party or abstain from voting in such House contrary to any direction of such party or is expelled from such party.
The whole purpose of the Act is that there may not be any cross flooring or horse trading.
The 10th Schedule contains disqualification as per the provision made under Paras-2, 3, and 4.
The subject matter of the issue in these cases are that in view of the provision made under Paragraph-4 Sub-para 2, since the claim of the private respondents are of merger in the strength of 2/3rd of the member of the legislative party who have agreed to merge in the other party so provision of Anti Defection Act, will not applicable.
The petitioners being the president of the Original Political Party in its general meeting has denied such merger but 2/3rd members (private respondents) agreed to merge with the other party upon which complaint has been made before the Hon'ble Speaker in order to decide the issue in 3 pursuance to the provision conferred to him under Para-6 of the 10th Schedule, who has decided the issue holding therein that on the merger disqualification will not come against the private respondents, in view of provision of Para-4(2) of the Tenth Schedule while doing so, the Hon'ble Speaker has not appreciated the fact about the disagreement of the original political party by taking decision of not to merge with the other party.
Learned senior counsel appearing for the petitioners, has relied upon the judgment rendered in the case of Kuldeep Bishnoi Vs. Speaker, Haryana Vidhan Sabha dated 09.10.2014 passed in C.W.P. No.2900 of 2013, the Hon'ble Punjab and Haryana High Court while dealing with the provision of Para-4 (2) of the 10th Schedule has dealt with in similar situation has answered the issue in case of mismatch between the decision of original political party and legislature party:-
"The deeming provision of what Para-4(2) provides that 2/3rd members of the legislative party would lead to necessary inference of merger of the original political party merely answers one limb namely, that 2/3rd members of the legislative party had agreed to the merger of the original political party. Other limb is proof that the original political party actually merged. Both these aspects would be required to be proved".
"His consideration ought to have been made whether there was a merger that such merger was a merger of original political party and the member of legislative party agreed to such merger. If less than 2/3rd, the benefit of deeming provision also would not operate. The requirement of 2/3rd of the members of the legislative party to accord to the merger of the original political party would deem such merger but that by itself would never have been sufficient. It is possible that the majority of the original political party actually took a decision not to merge but 2/3rd Members of the legislative party deciding to merge. The deeming provision will lose its value 4 if there was a "mismatch" between the decision of the original political party and the legislature party."
By resorting to the aforesaid judgment it has been submitted by Mr. R.N. Sahay, learned senior counsel for the petitioners, that the factual aspect involved in these cases herein is that the original political party has convened a meeting after result of the election of the year 2014 on 27.12.2014, 06.01.2015, 08.01.2015 and 18.01.2015 in which all the elected members were present, but in the meeting held on 08.01.2015 all the members were present but there was no discussion about the merger while in the meeting dated 09.02.2015 the private respondents remained absent, in spite of the sincere endeavors taken to contact them but their appearance could not have been secured, therefore, no decision was taken by the original political party for merger to the other party but this aspect of the matter has not been considered by the Hon'ble Speaker while the said aspects were brought on record by way of deposition as also taken note in the impugned order but without dealing with his vital aspects of mismatch of decision in between the decision of original political party and legislative party, the impugned order has been passed, therefore, the finding is perverse and irregular and hence the same are not sustainable in the eye of law and fit to be quashed by invoking the power of judicial review conferred to this Court under Article 226 of the Constitution of India by keeping the spirit and intent of the Tenth Schedule of the Constitution of India.
In view thereof, the respondents are required to be heard. Mr. Jai Prakash, learned senior counsel appearing for the Hon'ble Speaker as well as Dr. A.K. Singh, learned counsel for the Election Commission of India, have sought for time to address the same both on legal as well as factual aspects.
Let notices be issued upon the respondent Nos. 3, 4, 5, 6, 7 and 8 5 under both registered as well as ordinary processes for which requisites etc. to be filed within a week.
As prayed for by the learned counsel for the respondents, list this case on 09.05.2019.
(Sujit Narayan Prasad, J.) Madhav