# Dr. Md. Ayub v. The Speaker, U.P. Legislative Assembly, Vidhan Bhawan, U.P. Dr - **Citation:** (2016) 8 ILRA 884 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-09 - **Bench:** Amreshwar Pratap Sahi, Dr. Vijay Laxmi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-md-ayub-v-the-speaker-u-p-legislative-assembly-vidhan-bhawan-u-p-dr-44282 - **Pages:** 4 ## Text 884 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 884 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 09.08.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE DR. VIJAY LAXMI, J. Misc. Bench No.- 13648 Of 2016 Dr. Md. Ayub ...Petitioner Versus The Speaker, U.P. Legislative Assembly, Vidhan Bhawan, U.P. Dr. ...Respondent Counsel for Petitioner: Ved Prakash Nag Counsel for Respondent: Abhinav N. Trivedi Constitution of India -- Tenth Schedule -- Disqualification on Ground of Defection -- Mandamus to Speaker -- Petitioner, President of a political party, sought direction to Speaker of U.P. Legislative Assembly to decide pending disqualification petition against two members alleged to have defected -- Respondent relying on Articles 212 and Rule 6 of Tenth Schedule to contend that such direction impermissible -- Held: Speaker acts as a Tribunal while deciding disqualification petitions under Rule 6 and is obliged to perform this duty in accordance with law -- Where such obligation remains unfulfilled, a mandamus directing the Speaker to decide within a reasonable time is permissible, though the High Court cannot direct or pre-judge the outcome of the decision itself. (Paras 4 & 5) Article 212 -- Bar on Judicial Interference with Legislative Proceedings -- Limited Scope -- Article 212 bars inquiry into validity of legislative proceedings on ground of irregularity of procedure and ousts jurisdiction of courts over exercise of procedural powers by Speaker; however, this does not preclude a mandamus compelling the Speaker to decide a pending disqualification petition within a reasonable time, as clarified by the Apex Court, since the Speaker's failure to decide amounts to non-performance of a statutory/tribunal function distinct from internal legislative procedure. (Paras 3, 4 & 6) Case Law Discussed 1. Utkal Keshari Parida vs. Speaker, Orissa Legislative Assembly, Writ Petition (Civil) Nos. 14868, 14869, 14870 & 14871 of 2012 2. Speaker, Haryana Vidhan Sabha vs. Kuldeep Bishnoi and Others AIR 2013 SC 120 (Delivered by Hon'ble Amreshwar Pratap Sahi, J. & Hon'ble Dr. Vijay Laxmi, J.) 8 All. Dr. Md. Ayub Vs The Speaker, U.P. Legislative Assembly, Vidhan Bhawan, U.P. Dr. 885 1. Heard Shri Ved Prakash Nag, learned counsel for the petitioner. 2. The petitioner claims himself to be the President of the Peace Party which is a political party. He urges that the respondents no.2 and 3, who were members of his party have allegedly defected and joined another political party as a result whereof they have incurred disqualifications keeping in view the provisions of the Tenth Schedule appended to the Constitution of India. For this, a petition has been filed before the Speaker of the UP Legislative Assembly and which is pending consideration without any orders. Keeping in view the prayers made in this petition, a direction be issued to the Speaker of the Assembly for taking a decision in this regard. 3. The petition has been opposed by Shri Abhinav N. Trivedi, learned counsel on behalf of the State contending that such a direction would not be permissible keeping in view the provisions of Article 212 of the Constitution of India read with Rule 6 of the Tenth Schedule of the Constitution of India. Both the aforesaid provisions are extracted herein under: "212. Courts not to inquire into proceedings of the Legislature.-(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers." 4. Rule 6 of the 10th Schedule to the Constitution of India: "6. Decision on questions as to disqualification on ground of defection.-(1) If any question arises as to whether a member of a House has become subject to disqualification under this schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final. Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212." 5. Learned counsel for the petitioner has, therefore, relied upon the decision of the Orissa High Court in the Case of Utkal Keshari Parida versus Speaker, Orissa Legislative Assembly 886 INDIAN LAW REPORTS ALLAHABAD SERIES passed in Writ Petition No. (Civil) Nos. 14868,14869,14870 and 14871 of 2012, decided on 27.09.2012 to contend that such a mandamus can be issued as the Speaker of the Legislative Assembly acts as a Tribunal while taking a decision with regard to the disqualification and hence, he is obliged to perform the duty in accordance with law. In such circumstances if the obligation is not fulfilled, a mandamus can be issued. 6. He has further relied on another Apex Court decision in the case of Speaker, Haryana Vidhan Sabha versus Kuldeep Bishnoi and others reported in AIR 2013 Supreme Court 120, paragraph 48 to contend that such a direction issued by the High Court has been upheld by the Apex Court in the aforesaid decision. Paragraph 48 of the same is extracted herein under: "In our view, the High Court had no jurisdiction to pass such an order, which was in the domain of the Speaker. The High Court assumed the jurisdiction which it never had in making the interim order which had the effect of preventing the five MLAs in question from effectively functioning as Members of the Haryana Vidhan Sabha. The direction given by the learned Single Judge to the Speaker, as endorsed by the Division Bench, is, therefore, upheld to the extent that it directs the Speaker to decide the petitions for disqualification of the five MLAs within a period of four months. The said direction shall, therefore, be given effect to by Speaker. The remaining portion of the order disqualifying the five MLAs from effectively functioning as Members of the Haryana Vidhan Sabha is set aside. The said five MLAs would, therefore, be entitled to fully function as Members of the Haryana Vidhan Sabha without any restrictions, subject to the final decision that may be rendered by the Speaker in the disqualification petitions filed under paragraph 6 of the Tenth Schedule to the Constitution." 7. Shri Trivedi, however, informs upon instructions that the respondents no.2 and 3 have already been put to notice by the Speaker and since the principles of natural justice have to be complied with, therefore, the procedure as prescribed has to be followed. Consequently, the decision is likely to be taken within a reasonable time. 8. In view of the aforesaid submissions raised, the writ petition is disposed of with a liberty to the first respondent to proceed to take a decision keeping in view the observations made hereinabove within a reasonable time. ----------- 8 All. Jiya Lal & Ors. Vs Ayodhya & Anr. 887 (2016) 8 ILRA 887 APPELLATE JURISDICTION CIVIL SIDE DATED: LUCKNOW 08.08.2016 BEFORE THE HON'BLE RITU RAJ AWASTHI, J. Second Appeal No.- 77 Of 2014 Jiya Lal & Ors. ...Appellants Versus Ayodhya & Anr. ...Respondents Counsel for Appellants: Adnan Ahmad Counsel for Respondents: Ratnesh Chandra Civil Procedure Code -- Order 41 Rule 17(1) -- Dismissal of Appeal for Appellant's Default -- Explanation Barring Decision on Merits in Absence of Appellant -- 1st appellate court decided appeal under Section 96 C.P.C. on merits despite non-appearance of appellants -- Held: Explanation to Order 41 Rule 17(1) C.P.C., inserted by Act No. 104 of 1976, makes it explicit that the appellate court cannot dismiss the appeal on merits where appellant remains absent or unrepresented on date fixed for hearing -- Only option available is dismissal for default/non-prosecution, not adjudication on merits -- Purpose of Explanation is to preserve appellant's opportunity to show sufficient cause for non-appearance, which is lost if appeal is decided on merits in his absence. (Point on substantial question of law) Substantial Question of Law -- First Appellate Court's Error -- Held: 1st appellate court fell in error in deciding the appeal on merits in the absence of the appellants, contrary to the mandatory bar under the Explanation to Order 41 Rule 17(1) C.P.C. -- Judgment and decree of 1st appellate court set aside and matter remanded for fresh decision in accordance with law -- Court clarified that it had not expressed any opinion on the merits of the case. Second appeal allowed Case Law Discussed 1. Ghanshya Dass Gupta vs. Makhan Lal (2012) 8 SCC 745 2. Abdur Rahman and Others vs. Athifa Begum and Others (1996) 6 SCC 62 (Delivered by Hon'ble Ritu Raj Awasthi, J.) 1. Affidavit of service filed today is taken on record. 2. Heard learned counsel for the appellants as well as Mr.Ratnesh Chandra, learned counsel appearing for the respondent no.1. 3. In spite of service of notice no one has put in appearance on behalf of the respondent no. 2.