Document Fragment View

Matching Fragments

(i) In case of Ravi S.Naik Vs. Union of India, reported in 1994 Supp (2) Supreme Court Cases 641;
(ii) In case of Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others, reported in (2007) 4 Supreme Court Cases 270;
(iii) In case of Kihoto Hollohan Vs. Zachillhu And Others, reported in 1992 Supp (2) Supreme Court Cases 651;
(iv) In case of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others, reported in (2015) 12 Supreme Court Cases 381;

In view of the above, learned counsel Shri Buch has prayed to allow this petition.

8.1 Regarding decision relied on by the learned counsel Shri Buch for the petitioner, in case of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others (supra), the learned Advocate General Mr. Trivedi has also vehemently submitted that, in that matter the factual aspects were different and the application for disqualification was not decided for almost more than two years by the Hon'ble Speaker and in that view of the matter necessary direction was issued by the concerned High Court and thereafter by the Supreme Court. According to him this was the facts and circumstances of the case, where in the present case the office of the Hon'ble Speaker is alive and already intimated the petitioner regarding issuance of notice to the respondent no.2 and thereafter fixing the date of hearing. He has also contended that in the aforesaid decision, the hearing was preferred by the Hon'ble Speaker one or another pretext. The learned Advocate General has also referred to various paras of this judgment.

10. In rejoinder, Mr. Hriday Buch, learned counsel for the petitioner has vehemently submitted that as per the membership of I.N.C. resignation from any post is resignation from the membership itself. He has also contended that in the present case, as the Hon'ble Speaker has not initiated any action for considering the application of the petitioner and has not taken any cognizance of the same till today, this inaction on the part of the Hon'ble Speaker, who is Tribunal in the eye of law, is subject to the judicial scrutiny. He has also contended that the petitioner has cited the Talala case only with a view to show that as and when the authority wants to take immediate steps, then they are taking immediate steps, but however in the present case there is no cognizance taken by the respondent no.1 in the application of the petitioner and therefore in view of the judgments in case of Kihoto Hollohan Vs. Zachillhu And Others (supra), Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others (supra) and to that of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others (supra), the necessary direction can be issued by this Court to the Hon'ble speaker for deciding the application in time bound manner. Shri Buch, learned counsel for the petitioner has also submitted that here the question is regarding proprietary of the action of the Hon'ble Speaker in not initiating any steps for deciding the petition and therefore it cannot plead any immunity for the judicial scrutiny. He has also contended that the application was filed in the month of April, 2019 and till 1st June, 2019 no action has been taken by the Hon'ble Speaker. He has also contended that so far as defect, as has been shown by the petitioner in his petition, no such averments has been made in the affidavit filed by the Hon'ble Speaker. According to him in this case non-taking cognizance on the application is a core issue and therefore no immunity available to the Speaker. While answering to the submission of learned Advocate General regarding the peculiar facts of two cases viz. Kuldeep Bishnoi (supra) and Rajendra Singh Rana (supra), learned counsel Mr. Buch has also submitted that the law laid down therein by the Supreme Court is to the effect that the action of the Speaker is a subject matter of judicial scrutiny and therefore necessary direction was issued to the Speaker to take decision in the particular case. While reiterating his submission made in the petition, Shri Buch, learned counsel has submitted that some direction to the Speaker to be issued to decide the application of the petitioner in time bound manner so as to irreversible situation may not arise, otherwise the respondent no.2 though he is disqualified, will be entitled to take part in the assembly and will also take part in the bye-election of the Rajysabha and he will vote for the same. He has prayed to allow the petition.

44. Normally, this Court might not proceed to take a decision for the first time when the authority concerned has not taken a decision in the eyes of law and this Court would normally remit the matter to the authority for taking a proper decision in accordance with law....."

12.5 In case of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others, reported in (2015) 12 Supreme Court Cases 381, the Supreme Court has held in paras 19, 44, 46 and 47 as under: