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TMI Blog2012 (10) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... om effectively functioning as members of the Haryana Vidhan Sabha. Aggrieved by the interim directions purportedly given under Order 41 Rule 33 of the Code of Civil Procedure (C.P.C.), the Speaker filed SLP(C)No.54 of 2012, challenging the same. 4. The other three Special Leave Petitions (now appeals) were filed by the five MLAs, who were prevented from performing their functions as Members of the Assembly by the directions contained in the impugned judgment and order dated 20th December, 2011. While SLP(C)No.55 of 2012 was filed by Narendra Singh and another, SLP(C)Nos.59 of 2012 and 72 of 2012 were filed by Dharam Singh and another and Zile Ram Sharma, being aggrieved by the impugned judgment and order for the same reasons as contained in the Special Leave Petition filed by Narendra Singh and another. The focal point of challenge in all these appeals, therefore, is the orders passed by the Division Bench of the Punjab and Haryana High Court on 20th December, 2011, while disposing of the Letters Patent Appeals preventing the five named MLAs, who are also Appellants before us, from effectively discharging their functions as Members of the Vidhan Sabha. 5. The facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently, on 9th November, 2009, four Legislative Members of the Haryana Janhit Congress (BL) Party, hereinafter referred to as 'the HJC (BL)', wrote to the Speaker of their intention to merge the HJC (BL) with the INC in terms of the provisions of paragraph 4 of the Tenth Schedule to the Constitution of India. The Speaker was requested to accept the merger and to recognize the applicant legislators as Members of the INC in the Haryana Vidhan Sabha. 8. On hearing the four legislators, namely, Shri Satpal Sangwan, Shri Vinod Bhayana, Shri Narendra Singh and Shri Zile Ram Sharma, who appeared before him, the Speaker by his order dated 9th November, 2009, accepted the merger with immediate effect, purportedly in terms of paragraph 4 of the Tenth Schedule to the Constitution and directed that from the date of his order the said four legislators would be recognized as legislators of the INC in the Haryana Vidhan Sabha. Thereafter, a similar request was made to the Speaker by Shri Dharam Singh, another Member of the Vidhan Sabha elected as a candidate of the HJC (BL) to recognize the merger of the HJC (BL) with the INC and to also recognize him, along with the other four legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Writ Petition and directed the Speaker to finally decide the disqualification petitions pending before him within a period of four months from the date of receipt of the certified copy of the order, which direction has given rise to the question as to whether the High Court in its jurisdiction under Articles 226 and 227 of the Constitution was competent to issue such a direction to the Speaker who was himself a constitutional authority. 12. In terms of the order passed by the learned Single Judge, the date of hearing of the five disqualification petitions was fixed for 20th January, 2011, by the Speaker. On the said date, Dharam Singh, one of the Appellants before us, filed his reply before the Speaker along with an application for striking out "the scandalous, frivolous and vexatious" averments made in the disqualification petition. The matters had to be adjourned on the said date till 4th February, 2011, to enable the Writ Petitioner to file his reply to the said application and for further consideration. 13. On the very next day, Letters Patent Appeal No.366 of 2011 was filed by the Speaker, challenging the order passed by the learned Single Judge of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Division Bench of the High Court. The said Appeal was heard on three consecutive days when judgment was reserved. 15. In the meantime, proceedings before the Speaker continued and since the same were not being concluded in terms of the assurances given, the Division Bench of the High Court directed the Speaker to file an affidavit on or before 11th November, 2011. Finally, being dissatisfied with the progress of the pending disqualification petitions before the Speaker, the Division Bench took up the Letters Patent Appeals on 2nd December, 2011, when directions were given for production of the entire records of the matter pending before the Speaker. On 7th December, 2011, the relevant records of the proceedings before the Speaker were submitted to the High Court which adjourned the matter till 19th December, 2011, for further consideration. However, as alleged on behalf of the Appellants, the Bench was not constituted on 19th December, 2011, and without any further hearing or giving an opportunity to the Speaker's counsel to make submissions on the status report, the High Court proceeded to pronounce its judgment on the Letters Patent Appeals. By its judgment whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid decision of the learned Single Judge and even if the same fell within one of the exceptions indicated in Banarsi Vs. Ram Phal [(2003) 9 SCC 606], the judgment must still be held to have become final between the parties. The learned Solicitor General urged that all the decisions which had been cited on behalf of the Respondent No.1, were decisions rendered prior to the judgment in Banarsi's case (supra). It was, therefore, submitted that the decision in Banarsi's case (supra) is the final view in regard to the provisions of Order 41 Rule 33 of the Code of Civil Procedure. 18. The learned Solicitor General then challenged the orders of the Division Bench of the High Court on the ground of violation of the principles of natural justice. It was contended that while the High Court had concluded the hearing and reserved judgment on 20th July, 2011, by order dated 12th October, 2011, it directed the Speaker to place on record the status of the proceedings relating to the disqualification petitions. Although, the same were duly filed, without giving the parties further opportunity of hearing with regard to the said records, the Division Bench directed the matter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was also wrong since the Division Bench chose to follow judgments which related to the concept of "split" under paragraph 3 of the Tenth Schedule, which today stands deleted therefrom. The learned Solicitor General submitted that there was a clear difference between matters relating to the erstwhile paragraph 3 of the Tenth Schedule and paragraph 4 thereof. While paragraph 3 of the Tenth Schedule required proof of two splits, paragraph 4(2) requires proof of only one deemed merger. The learned Solicitor General submitted that there was no concept of deemed split in paragraph 3. It was submitted that paragraph 4(2) is meant only as a defence to a petition for disqualification and the same would succeed or fail depending on whether there was a deemed merger or not. 22. It was further submitted that under paragraph 4 of the Tenth Schedule, the Speaker was not the deciding authority on whether a merger of two political parties had taken place or not. It was urged that the expression used in paragraph 4(2) of the Tenth Schedule "for the purpose of paragraph 4(1)" clearly indicates that the deeming provision is not in addition to, but for the purpose of paragraph 4(1), which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Court in Mayawati vs. Markandeya Chand & Ors. [(1998) 7 SCC 517], wherein it was, inter alia, held that if the order of the Speaker disqualifying a Member was to be set aside, the matter had to go back to the Speaker for a fresh decision, since it was not the function of this Court to substitute itself in place of the Speaker and decide the question which had arisen in the case. 26. In addition to his aforesaid submissions, the learned Solicitor General also submitted that various substantial questions of law in regard to the interpretation of the Constitution, had arisen in the facts of the present case, namely, a) Whether paragraph 4 of the Tenth Schedule to the Constitution, read as a whole, contemplates that when at least two-thirds of the members of the legislature party agree to a merger between one political party and another, only then there is a "deemed merger" of one original political party with another? b) Whether in view of the difference in language between paragraphs 3 and 4 of the Tenth Schedule, a deemed merger is the only thing to be looked at as opposed to a "split" which must be in an original political party cumulatively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 2009. 29. Mr. Gupta submitted that till today, the said disqualification applications are pending decision before the Speaker and since such delay in the disqualification proceedings was against the very grain and object of the Tenth Schedule to the Constitution, the Division Bench of the High Court had no other option but to pass appropriate orders by invoking jurisdiction under Order 41 Rule 33 of the Code of Civil Procedure. In effect, the entire burden of Mr. Gupta's submissions was directed against the prejudice caused to the Respondent No.1 on account of the inaction on the part of the Speaker in disposing of the pending disqualification petitions within a reasonable time. Mr. Gupta sought to justify the impugned order passed by the Division Bench of the High Court on the ground that on account of the deliberate delay on the part of the Speaker in allowing the five dissident MLAs from continuing to function as Members of the House despite their violation of the provisions of paragraph 4(4) of the Tenth Schedule to the Constitution, the High Court in exercise of its appellate powers under Order 41 Rule 33 of the Code of Civil Procedure gave interim directions so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not mutually exclusive, but are closely related to each other. If objection could not be taken under Rule 22 against the co-respondent, Rule 33 could come to the rescue of the objector. It was also observed that "the sweep of the power under Rule 33 is wide enough to determine any question, not only between the appellant and respondent, but also between the respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case." 33. Mr. Gupta urged that the law, as declared by this Court, indicates that under Order 41 Rule 33 CPC, this Court as an appellate Court, has power to pass any decree or make any order which ought to have been passed or make such further decree or order as the case may require. 34. Mr. Gupta also referred to the Constitution Bench decision of this Court in L. Chandra Kumar vs. Union of India [(1997) 3 SCC 261], in which the Bench was considering the question as to whether under clause 2(d) of Article 323-A, the jurisdiction of all Courts, except the jurisdiction of this Court under Article 136 of the Constitution, was excluded. 35. The very foundation of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case we are concerned with the inaction of the Speaker in disposing of the disqualification petitions filed by the Respondent No.1 and the jurisdiction of the High Court to issue interim orders restraining a Member of the House from discharging his functions as an elected representative of his constituents despite the provisions of paragraph 6 of the Tenth Schedule to the Constitution. 40. Most of the questions raised by Mr. Nidhesh Gupta and Dr. Rajeev Dhawan contemplate a situation where the Speaker had taken a final decision on a disqualification petition. However, in the instant case we are really required to consider whether the High Court was competent to pass interim orders under its powers of judicial review under Articles 226 and 227 of the Constitution when the disqualification proceedings were pending before the Speaker. In fact, even in Kihoto Hollohan's case (supra), which has been referred to in extenso by Dr. Dhawan, the scope of judicial review has been confined to violation of constitutional mandates, mala fides, non- compliance with rules of natural justice and perversity, but it was also very clearly indicated that having regard to the constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-paragraph (1) of Paragraph 2. One of the circumstances indicated is where the original political party merges with another political party and the Member claims that he and any other Member of his original political party have become Members of such other political party, or, as the case may be, of a new political party formed by such merger. As stressed by the learned Solicitor General, for the purpose of sub-paragraph (1), the merger of the original political party of a Member of the House, shall be deemed to have taken place if, and only if, not less than two-thirds of the Members of the legislature party concerned agreed to such merger. In other words, a formula has been laid down in paragraph 4 of the Tenth Schedule to the Constitution, whereby such Members as came within such formula could not be disqualified on ground of defection in case of the merger of his original political party with another political party in the circumstances indicated in paragraph 4(1) of the Tenth Schedule to the Constitution. 44. The scheme of the Tenth Schedule to the Constitution indicates that the Speaker is not competent to take a decision with regard to disqualification on ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er paragraph 6 that the Speaker assumes jurisdiction to pass a quasi-judicial order which is amenable to the writ jurisdiction of the High Court. It is in such proceedings that the question relating to the disqualification is to be considered and decided. Accordingly, restraining the Speaker from taking any decision under paragraph 6 of the Tenth Schedule is, in our view, beyond the jurisdiction of the High Court, since the Constitution itself has vested the Speaker with the power to take a decision under paragraph 6 and care has also been taken to indicate that such decision of the Speaker would be final. It is only thereafter that the High Court assumes jurisdiction to examine the Speaker's order. 46. The submissions made by Mr. Nidhesh Gupta relating to Order 41 Rule 33, in our view, are not of much relevance on account of what we have indicated hereinabove. Order 41 Rule 33 vests the Appellate Court with powers to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or the order, as the case may require. The said power is vested in the Appellate Court by the statute itself, but the principles thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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