TMI Blog1994 (2) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... ecame the Chief Minister but later on Dr Luis Proto Barbosa was sworn in as the Chief Minister. On December 4, 1990, MGP withdrew its support to the PDF Government and thereupon on December 6, 1990, a notification was issued summoning the Assembly on December 10, 1990 and the Chief Minister Dr Barbosa, was required to seek a vote of confidence. Before the Assembly could meet Dr Barbosa tendered his resignation as the Chief Minister on December 10, 1990 and the same was accepted. On December 10, 1990, Dr Wilford D'Souza, leader of the Congress (1) Legislature Party staked his claim to form the Government. He claimed the support of 20 members consisting of 13 members of the Congress (1), 4 members of GPP and 2 members of MGP, who would form a common front known as the Congress Democratic Front (CDF). Two members of MGP, who were included in the CDF, were Sanjay Bandekar and Ratnakar Chopdekar, appellants in CA No. 3309 of 1993. Ramakant Khalap, who was the leader of the PDF claimed support of 16 members of MGP and three members who were formerly with GPP. The Governor submitted his report dated December 11, 1990 and taking into consideration the said report as well as other infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sirsat was removed from the office of Speaker and the Dy. Speaker began functioning as the Speaker in his place. Bandekar and Chopdekar filed applications for review of the order dated December 13, 1990 with regard to their disqualification and the said review applications were allowed by the Dy. Speaker functioning as Speaker by his order dated March 7, 1991 and order dated December 13, 1990 disqualifying Bandekar and Chopdekar was set aside. Ramakant D. Khalap filed a writ petition (Writ Petition No. 8 of 1992) before the High Court of Bombay, Panaji Bench, Goa challenging the said order of review dated March 7, 1991. The said writ petition was dismissed on the ground of leaches by the High Court on February 4, 1992. CA No. 1095 of 1991 was filed in this Court against the said judgment of the High Court. Similarly Naik filed an application for review of the order dated February 15, 1991 which was allowed by the Dy. Speaker functioning as Speaker by order dated March 8, 1991. Writ Petition No. 11 of 1992 was filed by Dr Jhalmi and Ramakant Khalap in the High Court challenging the said order of review dated March 8, 1991 passed by the Acting Speaker and the said writ petition was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 8.The provisions of the Tenth Schedule apply to members of either House of Parliament or the State Legislative Assembly or, as the case may be, either House of the Legislature of a State. Paragraph 2 of the Tenth Schedule makes provision for disqualification on the ground of defection. Sub-paragraph (1) deals with a member belonging to a political party. It provides for disqualification in two situations, viz., (i) if he has voluntarily given up his membership of such political party; and (ii) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority, and such voting or abstention has not been condoned by such po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Bill do not require such ratification and since paragraph 7 is severable from the rest of the provisions, paragraph 7 only was unconstitutional and that the rest of the provisions of the Tenth Schedule cannot be struck down as unconstitutional on the ground that the Bill had not been ratified by one-half of the State Legislatures before it was presented to the President for his assent. The minority view, however, was that the entire Bill required prior ratification by State Legislatures without which the assent of the President became non est and that the question of severability of paragraph 7 from the rest of the provisions does not arise and further that paragraph 7 was not severable from the rest of the provisions of the Bill. Since the validity of the rest of the provisions, excluding paragraph 7, have been upheld by the majority, the provisions of paragraph 6 have been construed in the majority judgment and it has been held: (SCC pp. 711-712, para 111) That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent and disqualification was sought on the ground of paragraph 2(1)(a) only. The said paragraph provides for disqualification of a member of a House belonging to a political party if he has voluntarily given up his membership of such political party . The words voluntarily given up his membership are not synonymous with resignation and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. 12.The petitions that were filed by Ramakant D. Khalap for disqualification of both these appellants are identical. The following averments were made with regard to disqualification on ground of defection under paragraph 2(1)(a) of the Tenth Schedule as contained in paragraph 11 of the said petitions: The petitioner says and submits that both before the Assembly session and also after the Assembly session, the respondent has voluntarily accompanied Dr Luis Proto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical party and have said so openly to him and others.The reply filed by the two MLAs does not deny the fact that they went to the Governor against the Maharashtrawadi Gomantak Party. The Advocate appearing for the MLAs said that he wanted to lead evidence. But, although both the MLAs were present before me, their Advocate did not make them give evidence. They did not deny that they supported Dr Wilfred D'Souza in his effort to form Congress (1) Govt. and went with him to the Governor as part of the 20 MLAs. They could not do so because it is a fact of common knowledge all over Goa that these two MLAs have left their political party.I am satisfied that by their conduct, actions and speech they have voluntarily given up the membership of the MGP. 15.The High Court was of the view that in view of their conduct the appellants were not entitled to invoke the discretionary remedy of writ of certiorari. In this regard the High Court has pointed out that the assertion by the appellants in the writ petition that they were in Bombay on December 9, 1990 is a brazen lie since the report of the Governor dated December 11, 1990 made to the President of India (which has been placed on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The High Court has observed that the Speaker has only relied upon the photos of the MLAs published in the newspaper reports which fact was undeniable inasmuch as the appellants have nowhere in their replies and even in the writ petition denied that they had met the Governor in the company of 18 other MLAs under the leadership of Dr Wilfred D'Souza representing the Congress (1) and splinter group of GPP led by Dr Barbosa. According to the High Court, when, as a fact, the appellants have admitted of having gone to the Governor to stake the claim in the afternoon of December 10, 1990, it was impossible to hold that the order be held as suffering from the vice of the order being based upon extraneous material and circumstances. Dealing with the grievance of the appellants that no opportunity was given to them to lead evidence, the High Court has held that the said submission was baseless since the Speaker in his order had recorded that although both the appellants were present before him their advocate did not make them give evidence. The High Court has observed that nothing prevented the appellants from leading their own evidence when it was their case that they wanted to lead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Shri Sen is that the petitions that were filed by Khalap before the Speaker did not fulfill the requirements of clause (a) of subrule (5) of Rule 6 inasmuch as the said petition did not contain a concise statement of the material facts on which the petitioner (Khalap) was relying and further that the provisions of clause (b) of sub-rule (5) of Rule 6 were also not complied with inasmuch as the petitions were not accompanied by copies of the documentary evidence on which the petitioner was relying and the names and addresses of the persons and the list of such information as furnished by each such person. It was also submitted that the petitions were also not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Shri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence before the Speaker passed the impugned order. 20.Principles of natural justice have an important place in modern Administrative Law. They have been defined to mean fair play in action . (See:Maneka Gandhi v. Union of India (1978) 1 SCC 248, 286: (1978) 2 SCR 621, 676, Bhagwati, J.) As laid down by this Court: They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men (Union of India v. Tulsiram Patel (1985) 3 SCC 398, 470: 1985 SCC (L S) 672: 1985 Supp (2) SCR 131, 225 ). An order of an authority exercising judicial or quasijudicial functions passed in violation of the principles of natural justice is procedurally ultra vires and, therefore, suffers from a jurisdictional error. That is the reason why in spite of the finality imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject to judicial review on the ground of non-compliance with rules of natural justice. But while applying the principles of natural justice, it must be borne in mind that they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1957 SC 227: (1957) 1 LLJ 472), it has been laid down that while exercising the jurisdiction under Article 226 of the Constitution the High Court has the power to refuse the writs if it was satisfied that there has been no failure of justice. 23.The grievance of the appellants regarding violation of the principles of natural justice has to be considered in this light. 24.It is no doubt true that under Rule 7(3)(b) of the Disqualification Rules, it has been provided that the members concerned can forward their comments in writing on the petitions within seven days of the receipt of the copies of the petition and the annexures thereto and in the instant case the appellants were given only two days' time for submitting their replies. The appellants, however, did submit their replies to the petitions within the said period and the said replies were quite detailed. Having regard to the fact that there was no denial by the appellants of the allegation in paragraph 11 of the petitions about their having met the Governor on December 10, 1990 in the company of Dr Barbosa and Dr Wilfred D'Souza and other Congress (1) MLAs and the only dispute was whether from the said conduct o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party and had said so openly to him and to others, in order to refute the correctness of the said statement. They, however, failed to do so. 27.In the light of the aforesaid facts and circumstances we are unable to hold that the impugned order of disqualification was passed by the Speaker in violation of the principles of natural justice. Since we are of the view that the appellants have failed to make out a case for interference with order dated December 13, 1990 passed by the Speaker disqualifying the appellants, we do not consider it necessary to go into the question about the appellants having disentitled themselves from invoking the jurisdiction of the High Court under Article 226 of the Constitution. The judgment of the High Court dismissing the writ petition of the appellants must be upheld and CA No. 3309 of 1993 filed by the said appellants must be dismissed. CA No. 2904 of 1993 28.This appeal relates to the disqualification of Ravi Naik under order of the Speaker dated February 15, 1991. As mentioned earlier, Naik was sworn in as Chief Minister of Goa on January 25, 1991. On the same day Dr Kashinath Jhalmi filed a petition before the Speaker of the Goa Legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udas Malik, Joint Secretary, Shri Avinash Bhonsla, various executive members and workers of Maharashtrawadi Gomantak Party. It was decided that MGP (Ravi Naik Group) under my leadership be constituted. A resolution to that effect was passed. (ii)Consequent upon the split, the following members of the Legislative Assembly of the original MG Party have joined the group representing the MGP (Ravi Naik Group) and constitute the group representing the faction which has arisen as a result of the said split in the original. MG Party and there are signatures to the declaration to that effect: 1. Shri Ravi S. Naik 2. Shri Ashok T.N. Salgaonkar 3. Shri Shankar Salagaonkar 4. Shri Pandurang Raut 5. Shri Vinaykumar Usagaonkar 6. Shri Ratnakar Chopdekar 7. Shri Sanjoy Bendekar 8. Shri Dharma Chodankar 29.Along with the said reply Naik submitted Xerox copies of the resolution referred to above as well as the declaration bearing signatures of eight MLAs. In the said reply Naik stated that given time he would procure the necessary evidence to be adduced to substantiate the averments contained in the reply. He prayed for fifteen days' time to produce his affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 24, 1990 there are some signatures and that in the typed portion there are six names of which four are of MLAs including Naik and two are disqualified MLAs and that the name of Dharma Chodankar is not there. The Speaker has also observed that if he had been shown the notice calling the meeting at Ponda showing its exact venue and the time, and the ,signatures of the persons who attended that meeting and minutes of that meeting there could be some evidence to show that such meeting had been actually held and that in the absence of any such proof the holding of the meeting cannot be accepted. The Speaker was also of the view that not only the split has to be proved but it has to be proved by conforming to the rules and in the face of the doubtful evidence represented by a typed sheet resolution it could not be accepted and as no information as prescribed by the rules was given, the split in the party was not proved. In his order the Speaker has further stated that he had suggested that Naik should produce the affidavits or the members in person to support his case and he could have brought the six members in person or six affidavits of the erstwhile MGP MLAs who had joined his g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 6 and 7 of the Tenth Schedule, the Speaker held that the stay order granted by a Division Bench of this Court is not binding upon him. In such circumstances, it cannot be held that the action of the Speaker was perverse or mala fide. Had it been a fact that the Speaker was to make such order after the pronouncement of the conclusion in Kihoto case2 i.e., after November 1991, the story would have been different. We do agree with Shri Ashok Desai, learned counsel, that propriety demanded that the Speaker should have respected the order of the High Court but nothing turns on the same as by this judgment the disqualification of Bandekar and Chopdekar is upheld which takes effect as from November 1990. 33.Another contention that was urged before the High Court on behalf of Naik was that the Speaker in his order dated February 15, 1991, has referred to letters dated January 14, 1991 and February 13, 1991 received by him from Dharma Chodankar and that the said letters were not disclosed to Naik earlier and Naik had no opportunity of producing evidence in rebuttal. The High Court has rejected the said contention with the observation: It must be seen that when for the first time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the basis that Bandekar and Chopdekar stood disqualified as members of the Legislative Assembly on December 24, 1990, when there was a split, as claimed by Naik. As regards letters dated January 14, 1991 and February 13, 1991 received by the Speaker from Dharma Chodankar, Shri Sorabjee has urged that the said letters were never disclosed to Naik earlier and that the said documents could not be relied upon by the Speaker without affording an opportunity to Naik to adduce evidence in rebuttal and, moreover, in these letters Dharma Chodankar has not denied his signatures on the declaration dated December 24, 1990 which has been produced by the appellant and has only claimed that the signatures had been obtained forcibly which means that he had actually signed the said declaration. Shri Sorabjee has urged that the question whether the signatures of Dharma Chodankar had been obtained forcibly on the said declaration could be proved only by evidence produced in the presence of the parties and that no evidence was adduced in support of the said allegation and in that view of the matter the Speaker could not ignore the signatures of Dharma Chodankar on the declaration dated December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orse this view. Rule 3 requires the information in respect of matters specified in clauses (a), (b) and (c) of sub-rule (1) to be furnished in the prescribed form (Form 1) to the Speaker by the leader of the legislature party within 30 days after the first sitting of the House or where such legislature is formed after the first sitting, within 30 days after its formation. Rule 4 relates to information to be furnished by every member to the Secretary of the Assembly in the prescribed form (Form 111). In respect of a member who has taken his seat in the House before the date of commencement of the Disqualification Rules, the information is required to be furnished within 30 days from such date. In respect of a member who takes his seat in the House after the commencement of the Disqualification Rules such information has to be furnished before making and subscribing an oath or affirmation under Article 188 of the Constitution and taking his seat in the House. Rule 4 has no application in the present case because the stage for furnishing the required information had passed long back when the members made and subscribed to oath and affirmation after their election in 1989. Rule 3 also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid writ petition the High Court had stayed the operation of the said order of disqualification dated December 13, 1990 passed by the Speaker. The effect of the stay of the operation of the order of disqualification dated December 13, 1990 was that with effect from December 14, 1990 the declaration that Bandekar and Chopdekar were disqualified from being members of Goa Legislative Assembly under order dated December 13, 1991 was not operative and on December 24, 1990, the date of the alleged split, it could not be said that they were not members of Goa Legislative Assembly. One of the reasons given by the Speaker for not giving effect to the stay order passed by the High Court on December 14, 1990, was that the said order came after the order of disqualification was issued by him. We are unable to appreciate this reason. Since the said order was passed in a writ petition challenging the validity of the order dated December 13, 1990 passed by the Speaker it, obviously, had to come after the order of disqualification was issued by the Speaker. The other reason given by the Speaker was that Parliament had held that the Speaker's order cannot be a subject-matter of court proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g certain acts. It is 8 well-settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. That in our opinion is the only difference between an order of injunction to a party and an order of stay to a court. This would mean that the Speaker was bound by the stay order passed by the High Court on December 14, 1990 and any action taken by him in disregard of the said stay order was a nullity. In the instant case the Speaker, in passing the order dated February 15, 1991 relating to disqualification, treated Bandekar and Chopdekar as disqualified members. This action of the Speaker was in disregard of the stay order dated December 14, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o agree with this contention. It is true that an interim order is issued in aid of or ancillary to the main relief and not in derogation of the main relief. The stay order passed by the High Court on December 14, 1990 staying the operation of the order dated December 13, 1990 passed by the Speaker had been issued in aid of and ancillary to the main relief in Writ Petition No. 321 of 1990 which was for quashing of the said order dated December 13, 1990. The fact that the writ petition was ultimately dismissed and the impugned order dated December 13, 1990 passed by the Speaker was upheld by the High Court does not mean that the High Court had committed any error in passing the interim order for stay of operation of the order under challenge in the writ petition on December 14, 1990. The dismissal of the writ petition at the final stage does not, in our view, confer validity on the action which was taken by the Speaker on February 15, 1991 in passing the order disqualifying Naik in disregard of the stay order passed by the High Court on December 14, 1990. In the circumstances, it must be held that in view of the stay order passed by the High Court on December 14, 1990 in Writ Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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