Punjab-Haryana High Court
Vasudev Sharma vs Speaker, Haryana Vidhan Sabha And Ors. on 29 May, 1997
Equivalent citations: (1997)117PLR313
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
JUDGMENT T.H.B. Chalapathi, J.
1. Invoking the writ jurisdiction under Article 226 of the Constitution of India, the petitioner is seeking quashing of the order of the 1st respondent namely Speaker, Vidhan Sabha dated 26.3.1991 whereby he was disqualified for being a member of Haryana Legislative Assembly on the ground of defection by issuing a writ of certiorari.
2. The general elections to the Legislative Assembly, Haryana, were held in June, 1987. The petitioner contested the said election from Mindhal constituency in Bhiwani District as a Lok Dal (B) candidate and got elected to the Legislative Assembly. Lok Dal (B) having secured majority of the seats, come to power. Later Lok Dal (B) party was renamed as 'Janta Dal' party. Thus all the members, who have been elected as Lok Dal (B) party candidates, were treated as members of the Janta Dal party. In November, 1990, there was a split in the Janta Dal Party at the national level and Janta Dal (B) Party and Janta Dal (V.P. Singh group) came into being. Before the split, there were 57 members of the Legislative Assembly belonging to the Janta Dal. On account of the split in the Janta Dal Party at national level, majority of the members of the Legislative Assembly belonging to Janta Dal Legisla tive Party decided to form a separate group and called Janta Dal (S) Party under the leadership of Saravshri Chander Shekhar and Devi Lal at a national level. Ac cording to the petitioner, 44 MLAs decided to form the distinct group of Janta Dal (S) Party, but out of them only 41 members of the legislature party could give in writing to their leader, Ch. Hukam Singh, the then Chief Minister, Haryana. The remaining 3 MLAs including the petitioner could not attend the meeting on the 1st week of November, 1990 as those three MLAs including the petitioner were held up at far away places on some personal work. The leader of the majority namely Ch. Hukam Singh informed the Speaker, Vidhan Sabha, the 1st respondent on 6th November, 1990, of the formation of the distinct group called Janta Dal (S) Party and he appended the resolution and the affidavits of 41 M.L.As. who attended the meeting of members of the Legislature Party of Janta Dal wherein it was decided to form a separate group called Janta Dal (S) party. The petitioner and two other members of the Legislative Assembly could not inform the Speaker about their joining Janta Dal (S) Party at that time. The Speaker basing on the latter of Ch. Hukam Singh, the then Chief Minister recognised Janta Dal (S) Legislature party as distinct group consisting of 41 members only with effect from 6.11.1990 itself.
Thereafter the petitioner and two others members of the legislature party of Janta Dal joined Janta Dal (S) party on 4.12.1990 by giving a declaration as required under the rules. The 3rd respondent namely Banarsi Dass Gupta, who was also a member of the legislative Assembly gave a petition on 17.12.1990 to disqualify the petitioner and other two M.L.As. from being members of the Legislative Assembly in view of paragraph 2 of the 10th schedule of the Constitution of India. The ground for disqualifying the petitioner and other two members, as alleged by the 3rd respondent in his petition, was that the split in the Janta Dal took place on 6.11.1990 and on that date only 41 MLAs decided to join Janta Dal (S) Party and the petitioner was not one of those 41 MLAs and the petitioner actually joined Janta Dal (S) Party on 4.12.1990. As such, it was a case of second split which did not consist of one-third of remaining members of the original Janta Dal Party. Therefore, the petitioner incurred disqualification in terms of paragraph 2 of the 10th Schedule of the Constitution of India.
3. The 1st respondent passed an order dated 26.3.1991 disqualifying the petitioner for being a member of the Legislative Assembly, Haryana. because of this order, the petitioner has also become disentitled to the pensionary benefits which he was otherwise entitled to under the provisions of the Haryana Legislative Assembly (Allowances and Pension of Members) Act, 1975 (hereinafter referred to as the 'Act'). The petitioner, therefore, filed this writ petition praying for issuance of a writ of certiorari to quash the order of the Speaker dated 26.3.1991 (vide Annexure P-1) and also the letter of the secretary, Haryana Vidhan Sabha informing the petitioner that he was not entitled to draw pension as an Ex. MLA Under Section 7-A(1-A) of the Act. The petitioner is further seeking a writ of mandamus directing respondents 1 and 2 to release the pensionary and other benefits to him as per his entitlement under the provisions of the said Act.
4. A written statement on behalf of respondents 1 and 2 was filed by the under Secretary of the Haryana Vidhan Sabha Secretariate. In the preliminary objections, an objection was taken that the writ petition was highly belated since it was filed on 6.9.1992 challenging the order of the Speaker passed on 26.3.1991 disqualifying the petitioner as member of the Legislative Assembly. It is further stated that there were total 48 members belonging to the Janta Dal legislature Party in the Haryana Vidhan Sabha and 9 members were treated as unattached members and in December, 1990 there were 41 members of Janta Dal (S) Party and 13 members of Janta Dal party including the petitioner and two others members namely Azmat Khan and Rao Ram Narain. It is also averred that the Speaker recognised the split in the Janta Dal Legislature Party on 6.11.1990. Their group was recognised as Janta Dal (Socialist) Party. The leader of that group which came to be known as Janta Dal (S) Legisla ture Party did not mention in his letter to the Speaker that the petitioner and two other members namely Azmat Khan and Rao Ram Narain also be treated as members of the split group. Therefore, there is no question of recognising the petitioner as a party to the split that took place on 6.11.1990 and, therefore, he was treated as a member of the original Janta Dal Party. It was further stated that it was only on 12.11.1990 the then Chief Minister Ch. Hukam Singh wrote a letter to the Speaker that 3 MLAs including the petitioner gave their consent to be members of the Janta Dal (S) Legislature Party. Thus, it is clear that the petitioner and other two members wanted to joint the Janta Dal (S) party on 11.12.1990 and they were not parties to the original split that took place on 6.11.1990. Thus, according to the respondents, the petitioner incurred disqualification by joining Janta Dal (S) group voluntarily and, therefore, the order of the Speaker dated 26.3.1991 is valid and in accordance with law and there are no grounds to interfere with the same. Consequently, the petitioner is not entitled to pension as he ceased to be a member of the Legislative Assembly in respect of his full term and also in view of Section 7A(1-A) of the Act.
5. There is no dispute about the fact that the petitioner contested the election on the ticket of Lok Dal (B) political party and the said party having secured majority of the seats came to power in the State of Haryana. Later a national Political party called Janta Dal was formed by its leaders at the national level including the leaders of the Lok Dal (B) Party. Accordingly, Lok Dal (B) party was renamed as Janta Dal party. It is also not in dispute that in November, 1990 there was a split in the national political party namely Janta Dal Party. As a result of the split of the political party at the national level the members of the Legislature party of Haryana Legislative Assembly also divided into two groups. 57 MLAs were originally elected on Lok Dal (B) tickets and those 57 MLAs became the members of the Janta Dal party after its formation. After the split of Janta Dal in the 1st week of November 1990, 41 members of the legislature party decided to form a split group calling 'Janta Dal (S) party. Accordingly, its leader the then Chief Minister Ch. Hukam Singh wrote a letter to the Speaker on 6.11.1990 indicating that 41 members of the Janta Dal Party decided to form a split group called Janta Dal (S) party. The contention taken in the written statement that out of 57 members, 9 members were treated as unattached members cannot be accepted in view of the latest decision of the Apex Court in G. Vishwanathan v. Tamil Nadu Assembly, (AIR 1996 S.C. 1060). Therefore, it is to be taken that before November, 1990 Janta Dal Legislature Party consisted of 57 members, out of which, as a result of the split of Janta Dal Party at the national level, 41 members gave it in writing to the Speaker on 6.11.1990 that they formed a split group called Janta Dal (S) Party. Thus the remaining 16 members continued to be the members of the original Janta Dal legislature party. It is pertinent to note that in the letter written by the then Chief Minister Ch. Hukam Singh on 6.11.1990, there was no mention of the consent given by the petitioner and two others to join the Janta Dal (S) party. Admittedly, the petitioner and the other two members also have not given any consent to the Speaker on 6.11.1990. It was only on 12.11.1990 the then Chief Minister wrote a letter to the Speaker intimating him that the petitioner and two other members namely Azmat Khan and Rao Ram Narain orally conveyed their consent and therefore, "all these three members may now be treated as the members of the Janta Dal (S) party with effect from the date of the split i.e. 6.11.1990." Thus it can be seen that the consent to join the Janta Dal (S) Party was given by the petitioner and two others not on 6.11.1990 when the split took place, but on a later date. It is, therefore, to be seen whether paragraph 3 of the Tenth Schedule is attracted to the case of the petitioner. Paragraph 3 of the Tenth Schedule reads as follows :-
"3. Disqualification on ground of defection not to apply in case of split - Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such legislature party:-
(a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground:-
(i) that he has voluntarily given up his membership of his original political party; or
(ii) that he has voted abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or absentation has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and
(b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purpose of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph."
6. To attract paragraph 3, the following conditions shall be satisfied :-
(i) There must be a split in the original political party;
(ii) as a result of the split in the original party if a member of the house makes a claim that he and other members of the legislature party constitute a group representing the faction; and
(iii) that such group shall consist of not less than one-third members of legislature party belonging to the original political party".
7. All the above three conditions shall be satisfied before the speaker recognises that group as a separate entity in the legislature party. In such an event only, a member of the house will not incur disqualification under sub-paragraph (1) of paragraph 2 of Tenth Schedule.
8. In the instant case, the split took place before 6.11.1990 in the original political party at the national level. As a result of the split, 41 members belonging to the legislature party of the original party namely Janta Dal gave in writing to the Speaker that they constituted a separate group. This took place on 6.11.1990. In view of the letter and the affidavits filed by 41 members of the legislature party of the original political party namely Janta Dal the Speaker recognised those members as a separate group and designated them as members of the Janta Dal (Socialist) party on 6.11.1990 itself. Thus the process of split and process of forming a separate group representing the faction which has arisen as a result of the split, has been completed on 6.11.1990 itself. Therefore, the remaining members of Janta Dal Party continued to be members of their original political party namely Janta Dal party. After the split when they decided to join the J.D.(S) party then there must be a second split both in the original political party and also in the legislature party. It is not the case of the petitioner that there was a second split after 6.11.1990 in the original political party namely Janta Dal party. This condition has not been satisfied in the present case. Even the second condition namely that 'such group consists of not less than one-third of the members of such legislature Party' is also not satisfied. After the split that was complete on 6.11.1990, the Janta Dal Party has got 16 members in the legislature party belonging to the original political party namely Janta Dal Party. Out of the 16, one-third members shall form a group in order to separate from their original political party. One-third of 16, comes to 5, but the petitioner and two others namely Azmat Khan and Rao Ram Narain i.e. only three members of the legislature party of the Janta Dal consented to join Janta Dal (S) group under the leadership of Ch. Hukam Singh. Therefore, the second condition was also not satisfied in the case of the petitioner as he and other two members did not constitute one-third of the members of the original Janta Dal political party which had 16 members after the split that took place on 6.11.1990. A split cannot be a continuous and unending process. If it is to be interpreted as a continuous process, then there will not be any end and the provisions of paragraph 2 of the Tenth Schedule can be made redundant.
9. In this view of the matter, we are of the opinion that the petitioner who has been elected on the ticket of Lok Dal (B) which was later renamed after election as Janata Dal Party, remained as a member of the legislature party belonging to the original political party namely Janata Dal and he did not join the group representing the faction which has arisen out of the split of the original political party on 6.11.1990 and, therefore, his joining the Janata Dal (S) party on 12.11.1990 amounts to voluntarily giving up his membership of his original political party namely Janata Dal on 12.11.1990 and therefore, he incurred disqualification under paragraph 2 of the Tenth Schedule to the Constitution.
10 We do not, therefore, find any illegality or infirmity in the order of the Speaker dated 26.3.1991. We are, therefore, of the opinion that the petitioner incurred disqualification for being member of the Legislative Assembly under paragraph 2 of the Tenth Schedule. Consequently, he is also not entitled to the pension in view of the specific provisions contained in Section 7A(1-A) of the Act. The writ petition is, therefore, devoid of any merit and is liable to be dismissed.
11. The result is, the writ petition fails and is, accordingly, dismissed. However, there will be no order as to costs.