Tripura High Court
Shri Chandra Sekhar Sinha vs The State Of Tripura & 5 Ors on 21 September, 2020
Equivalent citations: AIR 2021 (NOC) 516 (TRI.), AIRONLINE 2020 TRI 331
Author: S.G.Chattopadhyay
Bench: Akil Kureshi, S.G.Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
WP(C)(PIL) No. 03 of 2020
BEFORE
HON'BLE THE CHIEF JUSTICE MR.AKIL KURESHI
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
Shri Chandra Sekhar Sinha ..............Petitioner(s).
Versus
The State of Tripura & 5 Ors. ... ......Respondent(s).
For the petitioner(s) : Mr. N. Das, Adv.
For Respondent(s) : Mr. Dipankar Sharma, Addl. G.A.
Date of hearing : 01.09.2020
Date of delivery of
Judgment and Order : 21.09.2020
Whether fit for reporting Yes No
√
JUDGMENT
[Per S.G.Chattopadhyay, J] This Writ Petition under Article 226 of the Constitution of India has been filed challenging the order dated 29.01.2020 of Respondent No.4 declaring that Respondent No.6 who was elected to Kailashahar Municipal Council as an independent candidate in General Municipal Election held in 2015, earned no disqualification under sub-section(2) of Section 59A of the Tripura Municipal Act, 1994 (herein after referred to as 'the WP(C)(PIL)3/2020 Page 1 of 36 Act') for his contesting Tripura Legislative Assembly Election in the year 2018 as a candidate set up by the Bharatiya Janata Party called BJP.
[2] The basic facts and the controversy brought before this court are as follows:
Respondent No.6 contested the General Municipal Election held in the year 2015 from ward no 6 of Kailashahar Municipal area as an independent candidate against the candidates set up by different political parties including BJP and he came to be elected as a member of Kailashahar Municipal Council.
Subsequently, while functioning as a member of the said Municipal Council, he contested in the State Legislative Assembly Election in the year 2018 from 53 Kailashahar Assembly Constituency under the symbol of BJP. According to the petitioner, respondent no. 6 who was elected to Kailashahar Municipal Council as an independent candidate thus incurred disqualification under sub-
section(2) of Section 59A of the Act and ceased to be a member of the said municipal council for his joining a political party namely BJP during the continuation of his membership of the municipal council.WP(C)(PIL)3/2020 Page 2 of 36
[3] Prior to the filing of this writ petition, the petitioner, stated to be a social worker, filed another writ petition questioning the action of the state respondents in not disqualifying Respondent No. 6 as a member of Kailashahar Municipal Council on the ground of defection for contesting the state legislative assembly election as a candidate set up by BJP after his election to the said municipal council as an independent candidate. The said writ petition in which present Respondent no. 6 was also made a party as Respondent No.6, came to be registered as WP(C)(PIL)No.6 of 2019 and disposed of by order dated 25.11.2019.
[4] At this juncture, it would be appropriate to reproduce the relevant part of the said order of this court passed in WP(C)(PIL)No.6 of 2019 and the same is reproduced as under:
"..............The question in the present case is of applicability or otherwise of sub-section (2) of Section 59A which refers to a member of a Council being elected, otherwise as a candidate set up by political party. Whenever such a question arises, in terms of sub-section (3) of Section 59A, the same has to be decided by the authority referred to in sub-section (3) of Section 58. The competent authority, in our opinion, therefore, should have taken a proper decision and declare the same on the representation of the petitioner. Since it is primarily the duty of the competent authority to take into account relevant facts and give a decision thereon, we refrain from offering any observations, even of prima facie nature, on the applicability of sub-section (2) of Section 59A of the Act to the present case. We, however, require the said authority to take a final decision on the question of disqualification of respondent WP(C)(PIL)3/2020 Page 3 of 36 No.6 within a period of 1(one) month from today. No extension of time for such purpose shall be granted.
Petition is disposed of with these directions.
Pending application(s), if any, also stands disposed of."
[5] Pursuant to the said order of this court, the Chief Executive Officer of Kailashahar Municipal Council who is Respondent No.5 in the instant case wrote letter dated 30.11.2019, annexed to the writ petition as Annexure-8, to the Secretary, Urban Development Department, to make an enquiry in terms of the said order of this court and decide as to whether Respondent No.6 earned disqualification under sub-section(2) of Section 59A of the Act. Said letter of Respondent No.5 is being relevant is reproduced as under:
" ANNEXURE-8 KAILASHAHR MUNICICPAL COUNCIL KAILASHAHAR -UNAKOTI Email:[email protected]. phone:03824-223264 No.F.3(1)/ESTT/KLS/ESTT/2019/6197 Dated 30/11/2019 To The Secretary Urban Development Department Govt of Tripura. Agartala Subject : Decision on the question of disqualification on the ground of defection.
Sir, Consequent upon pronouncement of judgment by the Hon'ble Chief Justice, High Court of Tripura Agartala on 25-11-2019(a copy of same is enclosed herewith as Annexure-A) and in pursuance of Rule 15(4) of Tripura WP(C)(PIL)3/2020 Page 4 of 36 Municipal (Election of Office bearers)(1st Amendment)Rules,2000 I would like to refer the matter to the Secretary, Urban Development Department, Govt. of Tripura, Agartala who is the competent Authority under anti defection with a request for making an inquiry whether Sri Nitish De, member of ward No.06 of the Kailashahar Municipal Council has earned disqualification under sub-section(2) of Section 59A of the Tripura Municipal Act, 1994.
(2) In the backdrop of the above case, it is mentionable here that in the year 2015 during General Election to the Kailashahar Municipal Council 2015 Sri Nitish De, had contested Municipal election from ward no.06 as an independent candidate with symbol cup plate (a copy of list of contesting candidate in Form-7 is enclosed herewith as Annexure-B) and won the Municipal Election as independent member of the ward no.06 of the Kailashahar Municipal Council, otherwise than a candidate set up-by any political party.
(3) Subsequently, in the year 2018 Sri Nitish De had contested Tripura Legislative Assembly Eleciton-2018 from 53-Kailashahar AC as a candidate set-up by the political party i.e. Bharatiya Janata Party,(a copy of 'Form-B' Notice as to name of Candidate set up by the Political party is enclosed herewith as Annexure-C) As per above, I would like request to the competent authority to take a necessary action in this regard as per sub rule (5) of Rule 15 of the Tripura Municipal (Election of the Office bearers)(1st Amendment)Rules 2000.
This is for favour of your kind information and doing the needful please.
Enclol: As stated. Yours faithfully
[Dr. Vishal Kumar, IAS]
Chief Executive Officer
Kailashahar Municipal Council
Copy forwarded for kind information to:
1.The Director, Urban Development Department, Govt. of Tripura Agartala
2.The District Magistrate & Collector, Unakoti, Tripura
3.The Secretary, State Election Commission, Tripura 4The Registrar, High Court of Tripura, w.r.t. case reference No. WP (C) (PIL)No.06/2019 [Dr. Vishal Kumar, IAS] Chief Executive Officer Kailashahar Municipal Council"
[6] Thereafter, the Addl. Secretary to the Urban Development Department, issued notice dated 24.12.2019, annexed to the writ petition as Annexure-9, to Respondent No.06 asking WP(C)(PIL)3/2020 Page 5 of 36 him to show cause within 10 days as to why process for disqualifying him under Section 59A(2) of the Act would not be initiated against him. The said notice (Annexure-9) is considered relevant and also reproduced hereunder:
"ANNEXURE-9 GOVERNMENT OF TRIPURA URBAN DEVELOPMENT DEPARTMENT NO.F.7(13)-UDD/DUD/2019/11803-6 Dated, Agartala, the 24th December, 2019 NOTICE WHEREAS, it is found that Shri Nitish De, elected (independent) Member of Ward No 6 of Kailashahar Municipal Council had joined a political party and contested the Assembly Election, 2018 from that party.
As per verdict of Hon'ble High Court of Tripura vide No.WP(C)(PIL)No.06/2019 this would attract disqualification in terms of sub- section(2) of Section 59A of the Tripura Municipal Act, 1994 which states "A member of a municipality who has been elected as such, otherwise than as a candidate set up by any political party, shall be disqualified for remaining as member of the municipality if he joins any political party after such election"
Shri Nitish De is hereby asked to explain why the process of disqualification under Section 59(2) of Tripura Municipal Act, 1994 may not be initiated in the light of the already mentioned order of Hon'ble High Court of Tripura.
His written reply may be submitted to this Department within 10(ten)days from the date of issue of this Notice.
(Dr. Milind Ramteke, IAS) Additional Secretary to the Government of Tripura.
To Shri Nitish De, Member, Ward No.6 Municipal Council Kailashahar Copy to:
1.The Chairperson, Municipal Council, Kailashahar for kind information WP(C)(PIL)3/2020 Page 6 of 36
2. The Chief Executive Officer, Municipal Council, Kailashahar for information. He is requested to serve the Notice to the Member concern Copy also forwarded to :
P.S. to the Secretary, UDD for kind information of Secretary"
[7] Respondent no.6 replied to the said notice vide his reply dated 10.01.2020 which has been annexed to the counter affidavit submitted on behalf of Respondents No. 1 & 4 as Annexure R/3 and also as Annexure R/8. The said reply of Respondent No.6 reads as follows:
"ANNEXURE-R-8 Urban Development Department, Agartala, West Tripura (New Capital Complex).
Reference:Your memo No.F.7(13)-UDD/DUD/2019/11803-6 dated the 24th December,2019, as received by me, the below Signatory Notice at the fag end of the 31st December, 2019.
Sir, In connection with the context of the notice refererred above, I have the honor to place my explanation herein below.
1) That, I beg to beseech your kind permission to expose my denials upon the contests of this memo(referred above) to the effect that Hon'ble High Court of Tripura vide.
No.W.P.(C)(PIL)No.06/2019, verdicted, this would attract disqualification in terms of sub-section(2) of Section 59A of the Tripura Municipal Act, "A member of a municipality who has been elected as such otherwise than as Candidate set up by any political party, shall be disqualified for remaining as member of the municipality if he joins any political party after such election"
Having expressed my respectful denial of these contexts of this above referee memo, I have the honor to quote below the further and governing conclusive portion of Hon'ble Lordships' order dated 25.11.2019 as passed in the said W.P.(C)(PIL)No.06/2019 " Since it is primarily the duty of the competent authority to take into account relevant facts and give a decision thereon, we refrain from offering any observations, even of prima-facie nature, on the applicability of sub-section(2) of Section 59A of the Act to the present case". As such it is crystal clear that Hon'ble Lordships of the High Court of Tripura were pleased to leave the total aspect of the decision over the purported allegations of the petitioner, with your kindself.
2)That, as a matter of rule of interpretation of legal provisions or statute, any provision has to be interpreted along with all other related provisions of the same statute, for deciphering the actual legislative intent. Herein, interpretation of quoted provision of sub-section (2) of Section 59A, plainly attracts the purport of the word 'Defection' which has been used at the very heading or out set of sub-section(1) and WP(C)(PIL)3/2020 Page 7 of 36 (2) of Section 59A of the Act. To score out the result of applying this provision of 59A(2), necessarily chough it needs to be scanned out if there is readable from clause
(b) of sub-section(1) of the section and which again is liable to be condoned by the political party in question. Moreover, as per section 59(1) of this statute, in case any disqualification be incurred by any elected member subsequent to the election, for treating the election of such disqualified winner member as void, that is for debarring him, invariably a declaration to the effect to be made by State Govt; and it is worth while to consider that section 59(1) of this Act refers to section 59 of the Act inter alia and so also does explanation (3) of section 59(1) of this Act, thereby maintaining scope and necessity to look for inter connection between these sections 59 and 59A of this Act, and one cannot be interpreted in isolation of the other section.
But in this allegation of the petitioner there is no reference to or proof of any such Governmental declaration & it establishes that there was no any defection incurring displeasure of Govt. or displeasure of any or related political party. So that noticee as member of this related Municipal Council incurred no any subsequent disqualification to attract consequence thereof. This fact is further explained herein by reference to a petition of this notice addressed to the Local District President of B.J.P Kailashahar dated 14.07.2014 long before the election of Municipal Council at Kailashahar for permitting him to attach himself for doing works fo the party and it was allowed by addressee District Presidnet the Competent authority by according recommendation. A Xerox copy of this petition bearing said acceptance and recommendation dated 15.07.2014 is enclosed hereto as its enclosure. There was indeed not any bar to stand and seek election contest with separate Symbol as independent candidate against / along with candidate nominated by the political party of him unless the party itself takes exception. (There was no contention against this noticeee's act of contesting said election adopting independent and separate Symbol). As such it is far from truth that this noticee joined BJP lateron (beyond election result of this Municipal Council). So this notice has incurred no disqualification to attract action u/s 59A of the Act. Section 59A is inter-related with sections 59 and 58 of the Act.
3) That, it is not at all true that this notice voluntarily has given ujp membership of this political party; nor I this noticee have incurred any disqualification as defined u/s 58 of this Act.
4)That, obtaining a party ticket and contesting election for Legislative Assembly, on the part of this notice, subsequent to his winning membership of Municipal Council at Kailashahar by contesting election, was merely a formality as he had been since long before his contesting election of Municipal Council, working for the party having attachment to this party. Had it not been the fact, the party(BJP) must not have permitted party ticket to this notice at the subsequent MLA election . It was /is no illegally to contest any election as against a candidate of the party as an independent candidate, without forfeiting his attachment with the party, particularly when the party did not / does not raise any contention against such contesting candidate.
5)That, word defection, according to Oxford dictionary, means 'the abandonment of one's country or cause or ceasing in allegiance to a leader, party, religion or duty'. So a third party or third person not affected by some body's defection does not have locus or right to raise this question of defection and only the affected party or person can raise such plea of defection as it affects its or his interest adversely. So this petition does not have locus or right to agitate a cause basing on such defection-vice. This spirit is available from over all interpretations of aforesaid sections 59 and 59A of the Act.
WP(C)(PIL)3/2020 Page 8 of 36
6) So it is prayed that this explanation may kindly be accepted and this proceeding may kindly be dropped.
Enclo: As above. Yours faithfully
(Shri Nitish Dey)
Noticee
Date- 10.01.2020"
[8] The state respondents then obtained the views of the
Law Department on the issue. Note dated 21.01.2020 of the Law Secretary has also been annexed to the counter affidavit of the respondents as Annexure-R/10. The relevant extract of the said note of the Law Secretary is as under:
"........Examined the matter meticulously.
The challenge is to the notice receiver's remaining as a member of Municipal Council even after contesting Assembly Election in 2018 by joining BJP party for which disqualification of Shri De is sought under sub-section (2) of Section 59A of Tripura Municipal Act, 199. It appears from the reply of Shri De supported by a copy of his joining letter dated 14.7.2014 showing his joining the BJP party that while shri De was a member of BJP party, he fought and won municipal council election as an independent candidate, though later he contested Assembly Election on the nomination by his party i.e. BJP. Thus, it is clear that he did not join any political party for contesting Assembly election while he was a Municipal Councilor(independent). This could be an internal arrangement of his party for which none else may be aggrieved.
For the above stated reason, disqualification u/s 59A (2) of the Tripura Municipal Act, 1994 may not be attracted against Shri Nitish De, Municipal Councilor (independent).
There is sufficient force and justification in the reply submitted by Shri De The Department / competent authority may accordingly dispose the matter expeditiously.
L.R. & Secretary, Law"
[9] Thereafter, Respondent No.04 who is the Director, Urban Development Department, stated to be the competent WP(C)(PIL)3/2020 Page 9 of 36 authority under sub-section(3) of Section 58 of the Act passed the impugned order dated 29.01.2020, Annexure-3 of the petitioner, declaring that Respondent No.6 did not incur any disqualification under Section 59 A (2) of the Act. Said Annexure-3 reads as follows:
"GOVERNMENT OF TRIPURA DIRECTORATE OF URBAN DEVELOPMENT U.D.BHAWAN, SAKUNTALA ROAD, AGARTALA Ph.0381-232-9301, email:[email protected] No.F.7(13)-UDD/DUD/2019/13216-19 Dated, Agartala, the 29th January,2020 ORDER WHEREAS, in compliance with the order of the Hon'ble High Court of Tripura, dt. 25.11.2019 in WP(C)(PIL)No.06 of 2019 a show cause notice was issued upon Shri Nitish De on 24.12.2019 asking him to explain why the process of disqualification u/s 59A(2) of the Tripura Municipal Act, 1994 will not be initiated against him AND WHEREAS, Shri N.De submitted his reply on 10.01.2020 stating that Shri De has joined in Bharatiya Janata Party (BJP) on 14.07.2014 i.e. before the last General Election of Municipality which was held on December 2015, he was also allowed to work in favour of BJP by Unakoti District President of BJP :
AND WHEREAS, law department's views has also been received in this regard, as per the views of the law department - since he had joined in BJP before his election as an independent candidate, disqualification under Section 59A of the Tripura Municipal Act, 1994 may not be attracted against Shri Nitish De, Municipal Councilor (independent) Therefore, the undersigned hereby orders that disqualification under Section 59A(2) the Tripura Municipal Act, 1994 is not attracted here in case of Nitish De The matter is disposed of.
(Dr. Shailesh K.Yadav, IAS) Director, UD To Shri Nitish Dey, Member, Ward No.6, Municipal Council, Kailashahar Copy to:WP(C)(PIL)3/2020 Page 10 of 36
1.The Chairperson, Municipal Council, Kailashahar for kind information.
2.The Chief Executive Officer, Municipal Council, Kailsahahar for information. He is requested to serve the order to the Member concerned.
Copy also forwarded to:
P.S. to the Secretary, UDD for kind information of Secretary."
[10] Respondents No. 1 & 4 contested the case by filing counter affidavit wherein they pleaded that Respondent No. 06 did not earn any disqualification under Section 59A (2) of the Act since he joined BJP before his election to Kailashahar Municipal Council as an independent candidate. The said respondents had also challenged the locus standi of the petitioner for filing this writ petition as a Public Interest Litigation(PIL) and contended that it was filed by him with an oblique motive to vindicate his personal grievances against Respondent No.06 which is not entertainable.
[11] The petitioner submitted rejoinder thereafter contending that in WP(C)(PIL) No.06 of 2019 which was filed on similar cause of action, Respondent No. 06 appeared and filed counter affidavit, Annexure-11 of the petitioner, wherein he categorically admitted that he contested the General Municipal Election in 2015 as an independent candidate and thereafter he joined BJP.
[12] In this backdrop of the facts and circumstances of the case, we have heard Mr.N.Das, learned advocate, appearing on WP(C)(PIL)3/2020 Page 11 of 36 behalf of the petitioner as well as Mr. Dipankar Sharma, learned addl. GA, appearing for the contesting respondents.
[13] Mr.N.Das, learned counsel of the petitioner has contended that admittedly Respondent No.06 contested the Municipal Election held in 2015 as an independent candidate against the candidates of different political parties including BJP and during the continuation of his membership in the Municipal Council, he contested the State Assembly Election held in 2018 as a candidate set up by BJP. Obviously therefore, he came to be disqualified for defection in terms of sub-section (2) of Section 59 A of the Act which prohibits a member of the Municipal Council elected otherwise than as a candidate set up by any political party from joining any political party after his election as such.
[14] It is further contended by Mr.Das that the impugned decision dated 29.01.2020 of respondent no.04, Annexure-3 of the petitioner, indicates that respondent no.4 did not apply his mind while taking the decision with regard to the disqualification of Respondent No. 06 for defection and as such the said order is liable to be quashed.
[15] An objection has been raised by Mr.Dipankar Sharma, learned additional GA, appearing on behalf of the contesting respondent challenging the locus standi of the petitioner.WP(C)(PIL)3/2020 Page 12 of 36
[16] It has been argued by Mr.Sharma that locus standi cannot be liberalized to the extent of permitting a person acting under political motivation to abuse the process of the court for personal gain under the guise of public interest litigation. In support of his contention Mr.Sharma has relied on the decision of the Apex Court in Janata Dal Vs. H.S. Chowdhary and Ors. reported in (1992) 4 SCC 305, and the decision of the High Court Judicature of Andhra Pradesh at Hyderabad in K.Hanumantha Rao and Ors. vs. Principal sub-Judge, Vijayawada and Ors reported in 1997 SCC online AP 221.
[17] According to learned counsel, it is true that the concept of locus standi as well as the scope and ambit of PIL has been liberalized by judicial pronouncements over the passage of time permitting a member of the public to move the court on behalf of the poor and needy suffering from violation of their fundamental or legal rights for lack of access to justice and for greater causes like protection of environment and other matters of public good but no person should be allowed to utilize the opportunity for mere personal gain or profit. Having relied on the decision of the Apex Court in Jafar Imam Naqvi vs. Election Commission of India reported in (2014) 15 SCC 420, Mr.Sharma has contended that on no count the ambit of Public Interest Litigation can be extended to the subject matter of the instant case since it does not match with WP(C)(PIL)3/2020 Page 13 of 36 the purpose of Public Interest Litigation as expounded by the Apex Court in the judicial pronouncements cited by him. [18] It is contended by Mr.Sharma that the present petitioner who is stated to be a social worker does not have any locus standi to move the court challenging the election of Respondent No.6 by way of filing a Public Interest Litigation. [19] Mr.Sharma, learned Addl. GA has also referred to the Gauhati High Court (Public Interest Litigation) Rules, 2011which is applicable to this High Court and contended that the petitioner has not followed the instructions provided under the said rules and as such his petition is liable to be dismissed.
[20] Further submission on behalf of the contesting respondents is that private Respondent No.06 joined BJP before his election in Kailashahar Municipal Council as an independent candidate. Therefore, Respondent No.06 by contesting the State Legislative Assembly Election as a candidate set up by the same political party did not earn any disqualification for defection under sub-section (2) of Section 59 A of the Act.
[21] It is finally contended by Mr.Sharma that the competent authority notified under sub-section (3) of Section 58 of the Act has finally decided the matter with regard to the question of disqualification of Respondent No.06 by his order dated WP(C)(PIL)3/2020 Page 14 of 36 29.01.2020, Annexure-3, pursuant to order dated 25.11.2019 of this High Court in WP(C)(PIL) No.06 of 2019 and therefore, any further challenge to the matter is not entertainable. [22] Before taking up other issues for consideration, it would be appropriate to examine the merits of the objections raised by Mr. Dipankar Sharma, learned Addl. GA with regard to the locus standi of the petitioner in filing this writ petition as a Public Interest Litigation.
[23] The petitioner is stated to be a social worker who has declared in the affidavit sworn by him that he is not acting for the gain of any person, institution or body and he has nothing to personally gain in the process. According to the petitioner, he has filed the petition in larger public interest for protection of democracy and the rule of law.
[24] As noted by us, learned counsel of the respondents has relied on a few decisions in support of his contention that the petitioner does not have a locus standi to file the case. In Janata Dal Vs. H.S. Chowdhary and Ors. reported in (1992) 4 SCC 305 which has been relied upon by learned counsel of the respondents, the Apex Court examined, among other issues, the scope and object of 'Public Interest Litigation (PIL)' and the locus standi or standing to file such litigation and observed as follows:
WP(C)(PIL)3/2020 Page 15 of 36
"Locus Standi
61. Though it is imperative to lay down clear guidelines and propositions; and outline the correct parameters for entertaining a Public Interest Litigation - particularly on the issue of locus standi yet no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved. There is also one view that such adumbration is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances.
62. Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.
63. The traditional syntax of law in regard to locus standi for a specific judicial redress, sought by an individual person or determinate class or identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to action ability within the categories of law. In a private action, the litigation is bipolar; two opposed parties are locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere on their legally constituted representatives who are thus obviously most competent to commence the litigation.
64. In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide WP(C)(PIL)3/2020 Page 16 of 36 and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like action popularize of Roman Law whereby any citizen could bring such an action in respect of a public delict."
[25] The Apex Court, in the said decision, also observed that there cannot be any exhaustive list of circumstances justifying the entertaining of Public Interest Litigation and held as follows:
"90. It may not be out of place to mention here that there may be numerous circumstances justifying the entertaining of Public Interest Litigation but we cannot obviously enumerate an exhaustive list of all such situations."
[26] On the same occasion the Apex Court also ruled that the vexatious petitions under the colour of PIL for personal gain or private profit or political motive deserves rejection at the threshold. In this regard the Apex Court recalled its decision in S.P.Gupta vs. Union of India reported in (1991) Supp. SCC 87 and held as follows:
"99. In Gupta's case (supra) Bhagwati, J emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper WP(C)(PIL)3/2020 Page 17 of 36 to approach the court under the guise of a public interest litigant. He has also left the following note of caution;
But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective...."
[27] The principle of law emanating from the cited judgments is that any member of the public acting bonafide and having sufficient interest in an action for redressal of public wrong or public injury arising out of the breach of constitutional provisions or the law can approach the court in a Public Interest Litigation and while entertaining such petition the court has a duty to see that the person who approaches the court in a case of this kind is acting bonafide and not for any personal gain or private profit or political motivation or other oblique consideration. [28] In the case of K.Hanumantha Rao and Ors. vs. Principal sub-Judge, Vijayawada and Ors reported in 1997 SCC online AP 221 which has also been relied upon by learned counsel of the respondents, the Andhra Pradesh High Court observed that the Public Interest Litigation in India is basically concerned with the issues relating to infringement of legal and fundamental right of WP(C)(PIL)3/2020 Page 18 of 36 poor masses by the agencies of the state and offers a viable strategy improving the lives of less advantaged persons of the society through the judicial process.
[29] In Jafar Imam Naqvi vs. Election Commission of India reported in (2014) 15 SCC 420 which has also been referred to by learned counsel of the respondents to establish his contention, the Apex Court while refusing to entertain a PIL pertaining to hate speeches during election campaign observed that the concept of PIL has been expanded over the passage of time and held as follows:
"10. Before parting with the case, it may be stated that public interest litigation was initially used by this Court as a tool to take care of certain situations which related to the poor and under-privileged who were not in a position to have access to the Court. Thereafter, from time to time, the concept of public interest litigation expanded with the change of time and the horizon included the environment and ecology, the atrocities faced by individuals in the hands of the authorities, financial scams and various other categories including eligibility of the people holding high offices without qualification. But a public interest litigation pertaining to speeches delivered during election campaign, we are afraid, cannot be put on the pedestal of a real public interest litigation. There are laws to take care of it. In the name of a constitutional safeguard entering into this kind of arena, in our convinced opinion, would not be within the constitutional parameters."
[30] Let us now examine as to whether the issue which has been brought before us by the petitioner falls within the parameters WP(C)(PIL)3/2020 Page 19 of 36 of Public Interest Litigation as laid down by the Apex Court in the decisions cited above and whether the petitioner can be aptly said to have locus standi to file the petition, it is necessary to examine the importance of the matter in issue including its implications. [31] The petitioner has challenged the action of the state respondents in a matter pertaining to political defection which once became a matter of national concern and Parliament had to intervene to combat the menace by way of incorporating the Tenth Schedule in the Constitution by the Constitution (52nd Amendment) Act, 1985 which became operational w.e.f 01.03.1985. In order to understand the objectives which were sought to be achieved by the insertion of the Tenth Schedule in the Constitution, we need to have a look at the statement of objects and reasons appended to the Constitution (52nd Amendment) Bill which was later adopted as the Constitution (52nd Amendment) Act, 1985. The statement of objects and reasons of the bill is as under:
"1. The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.WP(C)(PIL)3/2020 Page 20 of 36
2. The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat would be disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.
3. The Bill seeks to achieve the above objects."
[32] It emerges from the objects and reasons of the Constitution (52nd Amendment) Bill, as quoted above, that WP(C)(PIL)3/2020 Page 21 of 36 Parliament wanted to combat defection to save the very foundation of democracy and the principles which sustain it. [33] Therefore, a fair and timely resolution of disputes pertaining to disqualification of elected members, be it of the legislatures or a local authority, is necessary to maintain the democratic values enshrined in the Constitution. In Kihoto Holloan vs. Zachillhu and Ors. reported in 1992 Supp. (2) SCC 651, the Apex Court held that adjudication of disputes relating to disqualification arising out of defection by an independent authority is a true reflection of the governance by rule of law which is essential for maintenance of democracy. In this regard the Apex Court in para 179 of the judgment held as follows:
"179. Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy, One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority. It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured."
[34] It emerges from the decisions cited above that defection is not only a breach of the provisions of the Constitution, WP(C)(PIL)3/2020 Page 22 of 36 it undermines the very constitutional objective of ensuring governance by rule of law.
[35] About locus standi, the Apex Court in the case of S.P.Gupta (supra) held that any member of public having sufficient interest can approach the court in PIL for action against public injury arising from the breach of the Constitutional provision and seek enforcement of such Constitutional provision which is essential for maintenance of the rule of law. The Apex Court in paragraph 23 of the judgment has held as follows:
"23. We would, therefore, hold that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective "Law", as pointed out by Justice Krishna Iyer in Fertilizer Corporation Kamgar Union v. Union of India AIR 1981 SC 344 "is a social auditor and this audit function can be put into action when some one with real public interest ignites the jurisdiction. A fear is sometimes expressed that if we keep the door wide open for any member of the public to enter the portals of the Court to enforce public duty or to vindicate public interest, the Court will be flooded with litigation. But this fear is totally unfounded and the argument based upon it is answered completely by the Australian Law Reforms Commission in the following words:WP(C)(PIL)3/2020 Page 23 of 36
The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a spectre which haunts the legal literature, not the court room (Prof. K.E. Scott "Standing in the Supreme Court: A Functional Analysis" (1973) 86) A major expressed reason for limiting standing rights is fear of a spate of actions brought by busybodies which will unduly extend the resources of the courts. No argument is easier put, none more difficult to rebut. Even if the fear be justified it does not follow that present restrictions should remain. If proper claims exist it may be necessary to provide resources for their determination. However, the issue must be considered.
... Over recent years successive decisions of the United States Supreme Court have liberalised standing so as to afford a hearing to any person with a real interest in the relevant controversy. Surveying the result in 1973 Professor Scott commented: (Op Cit, 673) 'When the floodgates of litigation are opened to some new class of controversy by a decision it is notable how rarely one can discern the flood that the dissenters feared.
Professor Scott went on to point out that the liberalised standing rules had caused no significant increase in the number of actions brought, arguing that parties will not litigate at considerable personal cost unless they have a real interest in a matter.
We wholly endorse these remarks of the Australian Law Reforms Commission. We may add, with Justice Krishna Iyer: "In a society where freedoms suffer from atrophy, and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi." It is also interesting to note that in India, as in other Commonwealth countries, the strict rule of standing does not apply to a writ of quo warranto or a rate payer's action against a municipality, but there is no evidence that WP(C)(PIL)3/2020 Page 24 of 36 this has let loose the flood gates of litigation in these areas. The time, money and other inconveniences involved in litigating a case act as sufficient deterrents for most of us to take recourse to legal action vide article of Dr. S.N. Jain on "Standing and Public Interest Litigation.""
[36] Undoubtedly, the petitioner has brought before us an issue pertaining to breach of a Constitutional provision having reflection on democracy and governance by the rule of law and we need not be guided by any narrow pedantic view in entertaining such petition.
[37] Undisputedly, the petitioner is a social worker and a resident under the Municipal Council in which Respondent No.06 is an elected member. Obviously, therefore, he is having sufficient interest in the matter and also as a member of public he can approach the court for redressal of the wrongs arising out of the breach of the constitutional provisions and law. The respondents on the other hand could not substantiate any personal gain or profit or oblique motive to the petitioner in the filing of this petition. [38] The contention of learned counsel of the respondents with regard to the breach of the Gauhati High Court (Public Interest Litigation) Rules, 2011 by the petitioner in filing the petition is found devoid of merit because the petitioner is found to have filed the petition in terms of the guidelines issued under such rules. WP(C)(PIL)3/2020 Page 25 of 36 Further, these rules cannot and do not purport to limit the vast discretion of the High Court in exercise of writ jurisdiction particularly in the nature of public interest litigation. [39] In view of the foregoing discussions, we are of the considered view that the objections raised by the contesting respondents with regard to the locus standi of the petitioner do not have any merit at all.
[40] The next issue to be examined by us is the propriety and correctness of the decision taken by Respondent No.04 with regard to the disqualification of Respondent No.06 for defection. From a close reading of his decision dated 29.01.2020, Annexure-3 of the petitioner, it emerges that Respondent No.04 in the process of making the decision simply relied on the note of the law secretary, Annexure-R/10 of the respondent, and reached the conclusion without assigning any reason of his own. The order passed by Respondent No.04 reflects that he failed to understand that the duty to decide whether an elected member of the municipal council incurred disqualification or not was statutorily entrusted to him which involved adjudicatory disposition and therefore, he assumed the role of a quasi judicial authority in deciding the matter and he was required to act independently and reach a decision supported by reasons strictly in terms of the relevant statutory WP(C)(PIL)3/2020 Page 26 of 36 provisions and on the basis of the submissions of the concerned parties and documents available before him without referring to any views or advice received from any other authority, whosoever. [41] Apparently, Respondent No.04, in his impugned order, has not recorded any reason of his decision except referring to the views of the law secretary for drawing the conclusion that Respondent No.06 earned no disqualification. But recording of reasons is a sine qua non for every decision taken by a quasi- judicial authority. In this regard, the Apex Court in Siemens Engineering & Manufacturing Company of India Ltd. vs Union Of India & Anr. reported in (1976) 2 SCC 981 has held as follows:
"6.....It is now settled law that where an authority makes an order in exercise of a quasi-judicial function it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd."
[42] The requirement of reason ensures fairness of a decision by eliminating the possibilities of the abuse of discretion entrusted to the authority. In this regard, the Apex Court in The Manager Govt. Branch Press &. Anr vs D. B. Belliappa reported in (1979) 1 SCC 477 has held as follows:
"24.......Indeed, fairness founded on reason is the essence of the guarantee epitomised in Articles 14 and 16(1)"WP(C)(PIL)3/2020 Page 27 of 36
[43] An element which is essential for lawful exercise of power vested on a quasi judicial authority is that it should be exercised by the authority itself independently and fairly and strictly in terms of the statutory provisions. In the instant case, it emerges from the impugned order, Annexure-3, that Respondent No.04 abdicated his power to the law department and derogated itself into a non entity by issuing an order solely based on the advice of the law department which in any case he could not have sought, without assigning any reason of his own. [44] For the foregoing reasons, we are of the considered view that the impugned order dated 29.01.2020, Annexure-3, suffers from material illegality.
[45] We shall now examine the correctness of the decision of Respondent No.04, Annexure-3, in terms of the statutory provisions.
[46] In the case before us, Respondent No.04, by the impugned order, on the basis of the advice rendered by the law secretary vide his note, Annexure-R/10 of the respondent, has decided that Respondent No.06 did not incur any disqualification under sub-section (2) of Section 59A of the Act for contesting State Assembly Election as a BJP candidate after his election to the WP(C)(PIL)3/2020 Page 28 of 36 Municipal Council as an independent candidate since he had joined BJP before his election to the Municipal Council. [47] To answer to the controversy, it will be apposite and necessary to refer to the relevant provisions with regard to disqualifications for membership incorporated in the Tripura Municipal Act, 1994 in exercise of powers conferred under Article 243V of the Constitution of India which are as under:
"[59A. Disqualification on ground of defection.--
(1) A member of a Municipality belonging to a political party shall be disqualified for continuing as a member of the municipality --
(a) if he has voluntarily given up his membership of such political party ; or
(b) if he votes or abstain from voting in the municipality contrary to any direction issued by the political party to which he belongs or by a person or authority authorized by that political party to issue such direction, without obtaining in either cases, prior written 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 30 days from the date of such voting or abstention.
Explanation--For the purpose of this section, a member of a Municipality shall be deemed to belong to a political party, if any, by which he was set up as a candidate for election as such member.
(2) A member of a municipality who has been elected as such, otherwise than as a candidate set up by any political party, shall be disqualified for remaining as member of the municipality if he joins any political party after such election (3) If any question arises as to whether a member of a municipality has become subject to disqualification under this section, the question will be referred for decision of the authority notified under sub-section (3) of section 58.
(4) The proceeding under sub-section (3) shall be completed and decision thereon shall be communicated within 30 days from the date when any such question has been referred to.
WP(C)(PIL)3/2020 Page 29 of 36
(5) During pendency of a proceeding, no decision shall be taken by the municipality in any meeting for the removal or election of the Chairperson or Vice-Chairperson.
(6) The disqualification under this section shall take effect from the date of decision of the competent authority.]"
[48] From a plain reading of sub-sections (1)(a) & (2) of Section 59A of the Act, it emerges that under sub-section (1)(a) an elected member to the Municipality may incur disqualification if he has voluntarily given up his membership of such political party whereas sub-section (2) of the Act provides that a member of the Municipality elected as such, otherwise than as a candidate set up by any political party, shall be disqualified for remaining as a member of the Municipality if he joins any political party after election. The case of the petitioner is that Respondent No.06 after being elected to the Municipal Council as an independent candidate in 2015 joined BJP and contested the State Assembly Election in 2018 and thereby disqualified himself to remain as a member of the Municipal Council in terms of sub-section (2) of Section 59A of the Act.
[49] Petitioner's case was confronted by the respondents saying that Respondent No.06 was already a member of BJP before he contested the Municipal Election in 2015 as an independent candidate and therefore, he cannot be said to have changed his WP(C)(PIL)3/2020 Page 30 of 36 party affiliation by joining BJP and contesting the Assembly Election in 2018 as a BJP candidate and therefore he earned no disqualification under the law.
[50] Respondent No.04, the competent authority, decided the controversy with regard to the disqualification of Respondent No.06 by his order dated 29.01.2020, Annexure-3, in the same line and declared that Respondent No. 06 incurred no disqualification which is under challenge before us.
[51] It is not disputed that Respondent No.06 contested the Municipal Election in 2015 as an independent candidate against the candidates set up by BJP and other political parties and subsequently, he contested the State Assembly Election in 2018 as a BJP candidate. Thus, whether he formally resigned or not, by his conduct, Respondent No.06 ceased to be a member of BJP. In fact, as an independent candidate, he had defeated the candidate supported by his erstwhile party. Subsequently when he contested the assembly election as a BJP candidate, he must be seen to have rejoined the said party.
[52] Now, with regard to the test as to whether an independent member has joined a political party to incur disqualification, the Apex Court, in Jagjit Singh vs. State of Haryana and ors. reported in (2006) 11 SCC 1 has held as follows:WP(C)(PIL)3/2020 Page 31 of 36
"52. We are of the view that to determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party. At the same time, non- fulfillment of formalities with a view to defeat the intent of paragraph 2(2) is also of no consequence. The question of fact that a member has given up his independent character and joined, for all intent and purposes, a political party though not formally so as to incur disqualification provided in paragraph 2(2) is to be determined on appreciation of the material on record."
[53] In the case in hand, admittedly Respondent No.06 during the continuation of his membership in the Municipal Council as an independent candidate contested the State Assembly Election in 2018 from 53 Kailashahar Constituent Assembly as a candidate set up by BJP. There is therefore, no doubt that Respondent No.06 who was elected to the Municipal Council as an independent candidate formally joined a political party so as to incur disqualification under sub-section (2) of Section 59A of the Act and as per the test laid down by the Apex Court in Jagjit Singh's case (supra).
[54] The plea of the respondents that Respondent No.06 joined BJP earlier to his election to the Municipal Council as an independent candidate in 2015 and therefore, by subsequently WP(C)(PIL)3/2020 Page 32 of 36 contesting the Assembly election in 2018 as a BJP candidate he incurred no disqualification for defection cannot be allowed to stand because acceptance of such a plea would defeat the very object of the Defection law.
[55] Moreover, it is no case of the respondents that Respondent No. 06 won the Municipal Election in 2015 as an independent candidate with the support of BJP. Rather, it is an admitted case that in the said Municipal Election BJP set up their own candidate under their party symbol vide Annexure-6 for contesting the election from ward no. 06 of Kailashahar Municipal area and Respondent No.06 contested the election from the same ward as an independent candidate under his own symbol against the candidate set up by BJP and the candidates of other political parties.
[56] Obviously therefore, the electorate who voted Respondent No.06 to power were clearly under the impression that they were casting their votes in favour of a non party man. By subsequently joining a political party against the mandate of the electorate Respondent No.06 cannot escape disqualification provided under sub-section(2) or Section 59A of the Act. The implication of an independent elected member joining a political WP(C)(PIL)3/2020 Page 33 of 36 party after his election as such in the minds of the electorate has been put into words by the Gauhati High Court in Imkong Imchen and Ors. vs. Union of India and Ors. reported in AIR 2006 GAU 01 as under:
"6.......To punish the unprincipled political elected representatives who are prone to crossing the floor after their election, this TENTH SCHEDULE has been appended to the Constitution of India for the sustenance of the very system of Parliamentary Democracy.
7. From a close reading of sub-para (2) of Para 2 which has been assailed being violative of basic structure of the Constitution, it appears that an independent elected member has been prevented from joining any political party after his such election. It seems this embargo has been put for a simple reason that an independent member is elected by the people's popular mandate on the basis of the voters sole conviction that he would function as non- party man to demonstrate the fact that they are averse to the political parties due to very many a reason. View of the electorates is that being a non- party man, he can deliver the best to a betterment of the society which the political parties fail to do according to the voters and the public of the particular Constituency. Under such conviction, hope and belief, an elector decides to vote for the independent candidate and to elect him to the Assembly so as to espouse of their causes and grievances on the Assembly door. Should this independent elected member is allowed to join a political party, it will amount to betraying the trust and confidence reposed upon him by his electorate from the particular Constituency and allowance of the same would adversely affect the democratic set up. It can be presumed that had the individual candidate fought the hustings on a political party ticket, he might not have been elected even. Moreso, WP(C)(PIL)3/2020 Page 34 of 36 any interference with the provisions under challenge, shall frustrate and defeat the very purpose and object of the TENTH SCHEDULE."
[57] The Apex Court in Kihoto Hollohan (supra) also emphasized on the need of maintaining political propriety and political morality by preventing defection and held as follows:
"13.These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1) (a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves and political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election."
[58] Even if for argument's sake, plea of the respondents that Respondent No.06 joined BJP before his election to the Municipal Council as an independent candidate is taken to be true, a reasonable inference can very well be drawn that by contesting the Municipal Election as an independent candidate against the candidate set up by BJP, he voluntarily gave up his party affiliation. WP(C)(PIL)3/2020 Page 35 of 36 [59] On the facts of the present case, it cannot be said that the finding arrived at by Respondent No.04 by the impugned order dated 29.01.2020, Annexure-3, that Respondent No.06 did not incur any disqualification by joining BJP after his election to Kailashahar Municipal Council as an independent candidate from ward no.06 since he was already in BJP could not reasonably and possibly be arrived at.
[60] As a result of the aforesaid discussions, the impugned order dated 29.01.2020 of Respondent No.04, Annexure-3, is set aside and Respondent No.06 stands disqualified to remain as a member of Kailashahar Municipal Council with all consequences as per law.
The petition stands allowed.
JUDGE (AKIL KURESHI),CJ
Saikat Sarma, P.A
WP(C)(PIL)3/2020 Page 36 of 36