# Lal Bihari Yadav v. Chairman/Sabhapati, U.P. Legislative Council & Anr

- **Citation:** (2022) 10 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-21
- **Case number:** Writ-C No. 4493 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-bihari-yadav-v-chairman-sabhapati-u-p-legislative-council-anr-47764
- **Pages:** 17

## Headnote

Constitution of India, 1950 - Article 226
& 212 - Scope of Judicial Review by this
Court under Article 226 of the Constitution of
India in a case of recognition/derecognition of
leader of opposition - Courts cannot inquire
into the validity of any proceedings in the
Legislature of a St. based on alleged
procedural irregularities - High court will
decline to interfere if the grievance brought
before it is restricted to allegations of
"irregularity of procedure" - However, if there
is any allegation of gross illegality or violation
of constitutional provisions, the power of
Judiciary is not barred by Article 212 of the
Constitution of India - An ouster clause
attaching finality to a determination does
ordinarily oust the power of the court to
review the decision but not on grounds of lack
of jurisdiction or it being a nullity for reason
such as gross illegality, irrationality, violation
of constitutional mandate, mala fides, noncompliance with rules of natural justice and
perversity.

Constitution of India, 1950 - Article 208
- U.P. St. Legislature in exercise of the
powers conferred by Article 208 of the
Constitution of India has framed rules - U.P.
Rajya
Vidhan
Mandal
(Neta
Virodhi
Ki
Suvidhayan) Niyamvali, 1981 -

Civil Law - Uttar Pradesh St. Legislature
(Members, Emoluments and Pension)
Act, 1980 - Section 2(h) - Leader of
Opposition - Procedure for recognising the
leader of the opposition - Uttar Pradesh St.
Legislature
(Members'
Emoluments
and
Pension) Act, 1980 does not prescribes any
mechanism for recognising a leader of
opposition - Chairman of the Vidhan Parishad
is not bound to be guided only with the
criteria of recognising the leader of an
opposition party, which has the greatest
numerical strength - Rules provides for
discretion
of
the
Respondent
no.1
to
recognize and/or de-recognise a Leader of
Opposition (Para 42)

Civil Law - Uttar Pradesh Legislative
Council's Procedure and conduct of
Business rules, 1956 - Rule 234 - By
notification dated 07.07.2022 the recognition
of the petitioner as the leader of the
opposition in Uttar Pradesh Legislative Council
was withdrawn, due to change in the number
of members of the Samajwadi party from 12
to 9- No infirmity or violation of constitutional
provisions in the impugned order dated
07.07.2022, by which the recognition of the
petitioner as the leader of the opposition in
Uttar Pradesh Legislative Council has been
withdrawn (Para 6)

whenever the Speaker recognises any person
as a leader of opposition he does so on the
basis of precedent or practice of the
Legislature in question, keeping in view at
the same time, the definition in the Act - If
the basis of recognition is not the Act in
question but the practice prevailing then he
has to follow the practice of recognising the
leader of an opposition party which has not
only the greatest numerical strength as
required by the definition in the Act, but has
also one-tenth of the total membership of
the House -

Dismissed. (E-5)

List of Cases cited:
10 All. Lal Bihari Yadav Vs. Chairman/Sabhapati, U.P. Legislative Council & Anr.
7

## Text

_Characters 0–39,852 of 57,821. This is a partial read: ask again with offset=39852 for what follows._

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 6
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 4493 of 2022

Lal Bihari Yadav ...Petitioner
Versus
Chairman/Sabhapati,
U.P.
Legislative
Council & Anr. ...Respondents

Counsel for the Petitioner:
Krishan Kanhaya Pal, Pooja Pal

Counsel for the Respondents:
Gaurav Mehrotra

Constitution of India, 1950 - Article 226
& 212 - Scope of Judicial Review by this
Court under Article 226 of the Constitution of
India in a case of recognition/derecognition of
leader of opposition - Courts cannot inquire
into the validity of any proceedings in the
Legislature of a St. based on alleged
procedural irregularities - High court will
decline to interfere if the grievance brought
before it is restricted to allegations of
"irregularity of procedure" - However, if there
is any allegation of gross illegality or violation
of constitutional provisions, the power of
Judiciary is not barred by Article 212 of the
Constitution of India - An ouster clause
attaching finality to a determination does
ordinarily oust the power of the court to
review the decision but not on grounds of lack
of jurisdiction or it being a nullity for reason
such as gross illegality, irrationality, violation
of constitutional mandate, mala fides, noncompliance with rules of natural justice and
perversity.

Constitution of India, 1950 - Article 208
- U.P. St. Legislature in exercise of the
powers conferred by Article 208 of the
Constitution of India has framed rules - U.P.
Rajya
Vidhan
Mandal
(Neta
Virodhi
Ki
Suvidhayan) Niyamvali, 1981 -

Civil Law - Uttar Pradesh St. Legislature
(Members, Emoluments and Pension)
Act, 1980 - Section 2(h) - Leader of
Opposition - Procedure for recognising the
leader of the opposition - Uttar Pradesh St.
Legislature
(Members'
Emoluments
and
Pension) Act, 1980 does not prescribes any
mechanism for recognising a leader of
opposition - Chairman of the Vidhan Parishad
is not bound to be guided only with the
criteria of recognising the leader of an
opposition party, which has the greatest
numerical strength - Rules provides for
discretion
of
the
Respondent
no.1
to
recognize and/or de-recognise a Leader of
Opposition (Para 42)

Civil Law - Uttar Pradesh Legislative
Council's Procedure and conduct of
Business rules, 1956 - Rule 234 - By
notification dated 07.07.2022 the recognition
of the petitioner as the leader of the
opposition in Uttar Pradesh Legislative Council
was withdrawn, due to change in the number
of members of the Samajwadi party from 12
to 9- No infirmity or violation of constitutional
provisions in the impugned order dated
07.07.2022, by which the recognition of the
petitioner as the leader of the opposition in
Uttar Pradesh Legislative Council has been
withdrawn (Para 6)

whenever the Speaker recognises any person
as a leader of opposition he does so on the
basis of precedent or practice of the
Legislature in question, keeping in view at
the same time, the definition in the Act - If
the basis of recognition is not the Act in
question but the practice prevailing then he
has to follow the practice of recognising the
leader of an opposition party which has not
only the greatest numerical strength as
required by the definition in the Act, but has
also one-tenth of the total membership of
the House -

Dismissed. (E-5)

List of Cases cited:
10 All. Lal Bihari Yadav Vs. Chairman/Sabhapati, U.P. Legislative Council & Anr.
7
1. Karpoori Thakur Vs St. of Bihar & anr. 1982
SCC OnLine Pat 136

2. Kailash Nath Singh Yadav Vs Speaker, Vidhan
Sabha, Lucknow & anr., 1992 SCC Online All
117

3. St.of Kerala Vs K. Ajith & ors., 2021 SCC
Online SC 510

4. Ashish Shelar & ors. Vs Maharashtra
Legislative Assembely & anr., 2021 SCC OnLine
SC 312

5. Kihoto Hollohan Vs Zachillhu & ors, 1992
Supp(2) SCC 651

6. N. Mani Vs Sangeetha Theatre & ors., (2004)
12 SCC 278

7. Raja Ram Pal Vs Hon'ble Speaker, Lok Sabha
& ors., (2007) 3 SCC 184

8. Amarinder Singh Vs Special Committee,
Punjab Vidhan Sabha & ors., (2010) 6 SCC 113

9. K. Lakshminarayan Vs U.O.I. & anr. (2020)
14 SCC 664

10. Bradlaugh Vs Gossett reported in (1884) 12
QBD 271

11. Raja Ram Pal Vs Hon'ble Speaker, Lok
Sabha & ors., (2007) 3 SCC 184

12. Imran Ali Vs U.O.I. & ors. reported in 2015
SCC Online Del 6707

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Sri Mohd. Arif Khan, learned
Senior Counsel assisted by Sri K.K. Pal for
the petitioner and Sri Gaurav Mehrotra,
learned counsel for the respondents.

2. This proceeding has been initiated
under Article 226 of the Constitution of
India by the petitioner seeking two fold
reliefs, (i) A direction has been sought in
the nature of mandamus commanding the
respondents to stay the operation of the
impugned notification dated 07.07.2022 by
which the recognition of the petitioner as
the leader of the opposition in Uttar
Pradesh Legislative Council has been
withdrawn; and (ii) A direction has also
been sought in the nature of Certiorari,
seeking quashing of the said impugned
notification dated 07.07.2022 by which the
recognition of the petitioner as the leader of
the opposition in Uttar Pradesh Legislative
Council has been withdrawn.

FACTS

3. Article 168 of the constitution of
India provides for a Legislature in every
state of the country. The same article
mentions that where there are two Houses
of the Legislature of a State, one shall be
known as the Legislative Council (Vidhan
Parishad in Hindi) and the other as the
Legislative Assembly (Vidhan Sabha in
Hindi), popularly known as the upper house
and lower house respectively. While all the
states of India and even some union
territory
have
Legislative
Assembly,
however the presence of Legislative
Council is restricted to only few larger
states, including the state of Uttar Pradesh.
As of now, there are six states which have
legislative council namely the state of
Andhra
Pradesh,
Bihar,
Karnataka,
Maharashtra, Telangana and the State of
Uttar Pradesh.

4. This court is concerned with the
legislative
Council/
Vidhan
Parishad/
Upper house of the state of Uttar Pradesh
which is a permanent House, consisting of
100 Members, (90 elected + 10 nominated).
(Annexure-2 of the writ) and the issue
relating to the validity of the impugned
notification dated 07.07.2022 by which the
recognition of the petitioner as the leader of
8 INDIAN LAW REPORTS ALLAHABAD SERIES
the opposition in Uttar Pradesh Legislative
Council has been withdrawn.

5. The petitioner Lal Bihari Yadav is
an elected member of the Uttar Pradesh
Legislative Council since 2020 (Annexure3 of the writ) and also a candidate of the
political party, the Samajwadi party. The
petitioner was recognized as a leader of the
opposition in the Legislative Council
(Vidhan Parishad) under section 2(h) of the
Uttar Pradesh State Legislature (Members,
Emoluments and Pension) Act, 1980 vide a
letter dated 27.05.2022 (Annexure-4 of the
Writ) issued by the Principal Secretary,
Vidhan
Parishad,
Uttar
Pradesh.
Apparently, no reason or any criteria have
been mentioned in the said letter relating to
the appointment of the petitioner as the
"Leader of the Opposition" and the only
reference made in the said letter is that the
petitioner is being appointed as "Leader of
Opposition" in terms of section 2(h) of the
Act, mentioned supra.

6. It is the case of the petitioner that
as on 05.07.2022, the number of members
of Samajwadi Party in Uttar Pradesh
Vidhan parishad was 12 (Twelve) and it
was decreased on 06.07.2022/07.07.2022 to
9 (Nine) and as such the petitioner's
recognition as leader of opposition was
withdrawn,
which
according
to
the
petitioner was illegal, unconstitutional and
in an arbitrary manner, without affording
any opportunity of hearing. Thus, the
petitioner has approached this court under
the present writ petition.

CONTENTIONS

7. Heard Shri Mohd. Arif Khan,
Senior Advocate assisted by Shri K.K. Pal
for the petitioner, ld. Counsel appearing for
the
Petitioner
while
explaining
the
definition of "Leader of Opposition" as
found in section 2(h) of the Uttar Pradesh
Legislative Council, 1980, sought to draw
pari-materia reference to the meaning of a
leader of opposition in the houses of Indian
Parliament. According to him, the leader of
opposition is a statutory post and is defined
in the salaries and allowances of leaders of
opposition in parliament Act, 1977 as the
leader of numerically biggest party in
opposition to the government and as such
recognised by the Speaker/Chairman. The
Ld. Counsel has also drawn reference of
definition of leader of opposition as defined
in section 2(b) of the Gujarat Assembly
(Leader
of
Opposition)
salary
and
allowances Act, 1979 to contend that even
in the said Act, the leader of the opposition
has been defined to mean the member of
the assembly who is for the time being the
leader in the assembly of the party in
opposition to the state government having
the greatest numerical strength in the
assembly.

8. The learned counsel in order to
further buttress his point has also drawn
reference to section 2 of the salary and
allowances of the leader of opposition in
the Assam Legislative Assembly Act, 1979
and section 2 of the leader of opposition in
Maharashtra
Legislature
Salaries
and
Allowances Act, 1978. The crux of the
argument of the petitioner by drawing
inferences from these Act is the leader of
the opposition ought to be the person, who
is the leader of the opposition in the house,
having the greatest numerical strength. It
has been argued that the procedure for
recognising the leader of the opposition is
well laid down and on a request being
made by the numerically largest party in
opposition that its designated leader be
recognised as the leader of the opposition,
the speaker is bound to examine his or her
10 All. Lal Bihari Yadav Vs. Chairman/Sabhapati, U.P. Legislative Council & Anr.
9
request and recognise the said person as
leader of the opposition.

9. According to the learned counsel for
the petitioner, there is no power of discretion
vested with the speaker in the matter of
recognising the leader of opposition as the
discretion vested with the speaker is neither
political nor arithmetical but a statutory
decision. Thus, as per the petitioner, the
speaker has to merely ascertain whether the
party claiming the post of leader of
opposition is the largest party only and
therefore to say that the party cannot claim
the post of leader of opposition because it
does not have at last 10% of the membership
of the house is devoid of any merits. Thus,
the learned counsel in order to vindicate his
stand has given illustration of the Delhi
Assembly, wherein the opposition party got
the post of leader of opposition although it
has only three members in an assembly of 70
members.

10. The petitioner has painstakingly
pointed out that the impugned notification
dated 07.07.2022, issued by the office of
principal secretary, Uttar Pradesh relating to
his de-recognition as the leader of the
opposition in the Uttar Pradesh Legislative
Council due to change in the number of
members of the Samajwadi party from 12 to
9 by referring to rule 234 of the Uttar Pradesh
Legislative Council's Procedure and conduct
of Business rules, 1956 is illegal and
unconstitutional.

11. Mr. Gaurav Mehrotra, learned
counsel appearing for the respondents has
vehemently opposed the writ petition and
filed a Convenience Compilation/ primary
point of Arguments. Mr. Mehrotra has
resisted the writ filed by the petitioner on
several grounds. However, the fulcrum of his
argument was basically on four points
namely (i) Jurisdiction/power and authority
of the Chairman of the Uttar Pradesh
Legislative Council to recognize/ derecognize
the Leader of Opposition; (ii)The writ
petition being not maintainable against the
impugned order dated 07.07.2022; (iii) Merits
of the Impugned order dated 07.07.2022; (iv)
Petitioner cannot claim the position of leader
of opposition as a matter of right and
opportunity of hearing.

12. It has also been argued by the
learned counsel for the respondents that the
petitioner has failed to point out any
constitutional provisions or any statutory
provisions in the statute applicable on U.P
Legislative whereby any right to be appointed
or to continue as leader of opposition has
been
conferred
upon
the
petitioner.
According to the Ld. Counsel, it was the
discretion of the respondent No.1 to
recognize the petitioner as leader of
opposition vide order dated 27.05.2022 and
discretion to de-recognize him vide the
impugned order dated 07.07.2022 has been
exercised judiciously when his party lost the
minimum number of members required to
transact business in the Council as per Rules
of Procedure and Conduct of Business Rules,
1956.

13. Both the sides have referred to
various
Judgments
to
espouse
their
contentions, which included:

(i) Karpoori Thakur Vs State of
Bihar & Anr. 1982 SCC OnLine Pat 136

(ii) Kailash Nath Singh Yadav Vs
Speaker, Vidhan Sabha, Lucknow &
Another, 1992 SCC OnLine ALL 117

(iii) State of Kerala Vs K. Ajith
& Otehrs, 2021 SCC Online SC 510

(iv) Ashish Shelar and Otehrs Vs
Maharashtra Legislative Assembely &
Anr., 2021 SCC OnLine SC 312
10 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Kihoto Hollohan Vs Zachillhu
& Ors, 1992 Supp(2) SCC 651

(vi) N. Mani Vs Sangeetha
Theatre and Others, (2004) 12 SCC 278

(vii) Raja Ram Pal Vs Hon'ble
Speaker, Lok Sabha & Ors., (2007) 3 SCC
184

(viii)
Amarinder
Singh
Vs.
Special Committee, Punjab Vidhan Sabha
and Others, (2010) 6 SCC 113

(ix) K. Lakshminarayan Vs Union
of India & Anr. (2020) 14 SCC 664

DISCUSSION & ANALYSIS

14. Having heard learned counsels for
the parties at considerable length, the
following question falls for this court
consideration:

A.
What
is
the
scope
of
interference by this Court under Article
226 of the Constitution of India in a case of
recognition/derecognition of leader of
opposition?

B. Whether the chairman of the
Legislative Council has power to decognize and/or recognize the Leader of
Opposition.

C. Whether the petitioner has a
right to be appointed as a Leader of
Opposition merely as being the leader of
the numerically largest party in opposition
in the Legislative council.

15. The learned counsel for the
respondents has submitted that the instant
writ petition challenging the order dated
07/07/2022 vide which the Chairman of the
Legislative Council has derecognized the
petitioner as the Leader of Opposition in
the Legislative Council is not maintainable
as the same is barred by the provision
contained in Article 212 of the Constitution
of India and has referred to the judgments
delivered by a coordinate bench of this
Court in the case of Kailash Nath Singh
Yadav
v/s
Speaker,
Vidhan
Sabha,
Lucknow, and Anr., 1992 SCC Online All
117 and a judgment delivered by the Patna
High Court in Karpoori Thakur v/s State
of Bihar reported in 1982 SCC Online Pat
136. It was also submitted that in the
classic case of Bradlaugh v/s Gossett
reported in (1884) 12 QBD 271, it has been
held that the House of Commons is not
subject to the control of Her Majesty's
Courts in its administration of that part of
the statue-law which has relation to its own
internal
proceedings.
Thus,
it
was
emphasized that what is said or done within
the walls of the legislature with respect to
conduct of business of the House, cannot
be called in question in a court of law. The
learned Counsel exuberantly also referred
to the Commentary on the Constitution of
India by D.D. Basu, wherein on page no,
10245, while discussing Article 212 of the
Constitution of India, the Author has stated
inter-alia "When the Speaker recognizes a
member as leader of opposition, he
exercises that power with respect to
conduct of business of the House and
cannot be called in question in a court of
Law." Thus, it was submitted that the
present writ petition is not maintainable.

16. This Court has given a thoughtful
consideration to the arguments addressed
by the learned counsel for the respondent at
the Bar as well as the Convenience
Compilation/ primary point of Arguments
filed by him. In the understanding of this
Court, our Constitution while defining
"State" in Article 12 of the Constitution has
included not only the Government but also
the Parliament of India and Legislature of
each of the States. The mention of the
phrase "Parliament of India and Legislature
of the state" has special significance. From
10 All. Lal Bihari Yadav Vs. Chairman/Sabhapati, U.P. Legislative Council & Anr.
11
time-to-time controversy has arisen as to
whether the Legislature while exercising its
functions under the Constitution is subject
to judicial scrutiny by courts. On behalf of
the Legislature, it has been always asserted
that it has inherent right to conduct its
affairs without interference from any court
of law and it is the sole Judge of its own
procedure as being sovereign in its own
sphere. However, now in view of series of
judgments of the Apex Court it is almost
established that Legislature in India is not a
sovereign body uncontrolled and with
unlimited powers and in many respects
their actions can be matter of judicial
scrutiny. The first judgment on the said
aspect could be found in re. Article 143,
Constitution of India and Delhi Laws Act
(1912) etc. (AIR 1951 SC 332), wherein it
was observed as follows:

".....the
principal
point
of
distinction between the British Parliament
and the Indian Parliament remains and
that is that the Indian Parliament is the
creature of the Constitution of India and its
powers, rights, privileges and obligations
have to be found in the relevant Articles of
the Constitution of India. It is not a
sovereign
body,
uncontrolled
with
unlimited powers."

 (Emphasis supplied)

17. The Constitution Bench of the
Apex Court has consistently expounded
that the judicial scrutiny regarding exercise
of legislative privileges is constricted but
not altogether barred. Although, there is
complete immunity from judicial review in
matters
of
irregularity
of
procedure,
however the same is not correct for issues
relating to allegation of gross illegality or
violation of constitutional provisions. The
Constitution Bench of the Apex Court in
the case of Raja Ram Pal Vs Hon'ble
Speaker, Lok Sabha & Ors., (2007) 3 SCC
184, enumerated the principles based on a
catena of decisions and noted in the said
decision as follows:

"Summary of the principles
relating to parameters of judicial review in
relation to exercise of parliamentary
provisions:

431. We may summarise the
principles that can be culled out from the
above discussion. They are:

(a) Parliament is a coordinate
organ and its views do deserve deference
even while its acts are amenable to judicial
scrutiny;

(b) The constitutional system of
government abhors absolutism and it being
the cardinal principle of our Constitution
that no one, howsoever lofty, can claim to
be the sole judge of the power given under
the
Constitution,
mere
coordinate
constitutional status, or even the status of
an exalted constitutional functionaries,
does not disentitle this Court from
exercising its jurisdiction of judicial review
of actions which partake the character of
judicial or quasi judicial decision;

(c) The expediency and
necessity of exercise of power or privilege
by the legislature are for the determination
of the legislative authority and not for
determination by the courts;

(d) The judicial review of the
manner of exercise of power of contempt or
privilege
does
not
mean
the
said
jurisdiction is being usurped by the
judicature;

(e) Having regard to the
importance of the functions discharged by
the legislature under the Constitution and
the majesty and grandeur of its task, there
would always be an initial presumption
that the powers, privileges, etc. have been
regularly and reasonably exercised, not
12 INDIAN LAW REPORTS ALLAHABAD SERIES
violating the law or the constitutional
provisions, this presumption being a
rebuttable one;

(f) The fact that Parliament is
an
august
body
of
coordinate
constitutional position does not mean that
there can be no judicially manageable
standards to review exercise of its power;

(g) While the area of powers,
privileges
and
immunities
of
the
legislature
being
exceptional
and
extraordinary
its
acts,
particularly
relating to exercise thereof, ought not to
be tested on the traditional parameters of
judicial review in the same manner as an
ordinary administrative action would be
tested, and the Court would confine itself
to the acknowledged parameters of
judicial review and within the judicially
discoverable and manageable standards,
there is no foundation to the plea that a
legislative body cannot be attributed
jurisdictional error;

(h) The judicature is not
prevented from scrutinising the validity of
the action of the legislature trespassing
on the fundamental rights conferred on
the citizens;

(i) The broad contention that
the exercise of privileges by legislatures
cannot be decided against the touchstone
of
fundamental
rights
or
the
constitutional provisions is not correct;

(j) If a citizen, whether a nonmember or a member of the legislature,
complains that his fundamental rights
under Article 20 or 21 had been
contravened, it is the duty of this Court to
examine the merits of the said contention,
especially when the impugned action
entails civil consequences;

(k) There is no basis to the
claim of bar of exclusive cognizance or
absolute immunity to the parliamentary
proceedings in Article 105(3) of the
Constitution;

(l) The manner of
enforcement
of
privilege
by
the
legislature can result in judicial scrutiny,
though
subject
to
the
restrictions
contained in the other constitutional
provisions, for example Article 122 or
212;

(m) Article 122(1) and Article
212(1) displace the broad doctrine of
exclusive cognizance of the legislature in
England of exclusive cognizance of
internal
proceedings
of
the
House
rendering irrelevant the case law that
emanated from courts in that jurisdiction;
inasmuch as the same has no application
to the system of governance provided by
the Constitution of India;

(n) Article 122(1) and Article
212(1)
prohibit
the
validity
of
any
proceedings in legislature from being
called in question in a court merely on the
ground of irregularity of procedure;

(o) The truth or correctness of
the material will not be questioned by the
court nor will it go into the adequacy of the
material or substitute its opinion for that of
the legislature;

(p) Ordinarily, the legislature,
as a body, cannot be accused of having
acted for an extraneous purpose or being
actuated by caprice or mala fide intention,
and the court will not lightly presume
abuse or misuse, giving allowance for the
fact that the legislature is the best judge of
such matters, but if in a given case, the
allegations to such effect are made, the
court may examine the validity of the said
contention, the onus on the person alleging
being extremely heavy;

(q) The rules which the
legislature has to make for regulating its
procedure and the conduct of its business
10 All. Lal Bihari Yadav Vs. Chairman/Sabhapati, U.P. Legislative Council & Anr.
13
have to be subject to the provisions of the
Constitution;

(r) Mere availability of the
Rules of Procedure and Conduct of
Business, as made by the legislature in
exercise of enabling powers under the
Constitution, is never a guarantee that they
have been duly followed;

(s) The proceedings which may
be tainted on account of substantive or
gross illegality or unconstitutionality are
not protected from judicial scrutiny;

(t) Even if some of the material
on which the action is taken is found to be
irrelevant, the court would still not
interfere so long as there is some relevant
material sustaining the action;

(u) An ouster clause attaching
finality to a determination does ordinarily
oust the power of the court to review the
decision but not on grounds of lack of
jurisdiction or it being a nullity for some
reason
such
as
gross
illegality,
irrationality, violation of constitutional
mandate, mala fides, non-compliance with
rules of natural justice and perversity."

18. Further, even on a plain reading of
Article 212 of the Constitution brings us to
the forth that framers of our Constitution
have barred an enquiry in respect of any
proceeding in the Legislature on the ground
of any alleged irregularity of procedure.
However, if the procedure followed is
unconstitutional
or
illegal
then
the
jurisdiction of the court to examine the
validity of a proceeding based on such
procedure has not been ousted. Thus, there
is no absolute bar of the jurisdiction of any
courts as is wrongly understood under
Article 212 of the constitution of India.
This aspect of the matter has also been
examined by the Hon'ble Supreme Court in
the well-known reference under Article 143
of the Constitution of India and the opinion
is reported in AIR 1965 SC 745; where
while considering the scope of Article 212
it was pointed as follows (at p. 768):

"Article 212 (1) seems to make it
possible for a citizen to call in question in
the appropriate court of law the validity of
any proceedings inside the Legislative
Chamber if his case is that the said
proceedings
suffer
not
from
mere
irregularity of procedure, but from any
illegality. If the impugned procedure is
illegal and unconstitutional, it would be
open to be scrutinised in a court of law,
though such scrutiny is prohibited if the
complaint against the procedure is no more
than this that the procedure was irregular."

19.

From
the
aforesaid
pronouncements as also the Constitutional
provisions, it is crystal clear that the
exercise of any power or privilege by the
Legislative council is immune only to the
extent as indicated in Article 212(1), that is
to say this court will decline to interfere if
the grievance brought before it is restricted
to allegations of "irregularity of procedure".
However, in case there is any allegation of
gross illegality or violation of constitutional
provisions, the power of Judicial will not
be barred by Article 212 of the Constitution
of India.

20. Thus, the question would be,
whether the petitioner by filing the present
petition has questioned any "irregularity of
procedure" or has alleged any violation of
constitutional provisions. Apparently, the
petitioner has challenged the impugned
notification dated 07.07.2022 not only on
the grounds of irregularity but also on the
ground of violation of principle of natural
justice
and
Jurisdiction
of
the
Chairman/Speaker
of
the
Legislative
Council i.e., the Respondent no.1 to
14 INDIAN LAW REPORTS ALLAHABAD SERIES
derecognize a leader of opposition in the
Council.

Whether
the
chairman
of
the
Legislative Council has power to decognize and/or recognize the Leader of
Opposition.

21. On behalf of the petitioner, it was
submitted
that
the
Chairman
of
the
Legislative Council has no power to
derecognize
a
Leader
of
Opposition.
Although, the term or post of the ''Leader of
Opposition' has neither been defined nor
finds any reference in the Constitution of
India, however as commonly understood
through past practise & precedence, a Leader
of the Opposition is considered as the official
spokesperson of the minority party in a
parliament as has been commonly understood
in the legislative jargon. It owes its existence
to parliamentary convention according to
which he is leader of the largest recognised
opposition party in the House. In British
Parliament, he can be regarded as the shadow
Prime Minister; that is, in case the
government falls or resigns, the Leader of the
Opposition can lay claim to forming the next
government. A Leader of opposition is
usually the leader of the political party with
the second largest number of seats in the
House of Commons. Sometimes, he is also
the overall Leader of the Opposition, viz., the
leader of the opposition for both the houses of
parliament taken together, which is, the
House of Lords and the House of Commons.
He or she receives a statutory salary and
perquisites equal to those of a cabinet
minister. Under the Ministerial and Other
Salaries Act, 1975, the Speaker's decision on
the identity of the Leader of the Opposition is
final.

22. As far as the Indian Parliament is
concerned, post-independence, the concept
of the opposition took root in 1969, after
the split of the Indian National Congress,
and Ram Subhag Singh, the leader of the
Indian National Congress (Organisation),
was regarded as the Leader of the
Opposition Party. However, it was only in
1977, with the passage of The Salary and
Allowances of Leaders of Opposition in
Parliament Act, 1977, that the position of
the Leader of opposition came to be
formally recognised along with certain
emoluments and perks. Having said so, it is
to be noted that neither the Constitution of
India nor the Rules of Procedure and
Conduct of Business in the Lok Sabha or
the Rajya Sabha make any provision or
provides for any procedure for appointment
of a Leader of the Opposition. Even the Act
providing for the salary and allowances of
leader of opposition in parliament enacted
in the year 1977 does not provide for any
procedure and merely defines a leader of
opposition for the purposes of that act only.
Thus, section 2 inter-alia states:

"2. Definition: In this Act,
"Leader of the Opposition", in relation to
either House of Parliament, means that
member of the Council of States or the
House of the People, as the case may be,
who is, for the time being, the Leader in
that House of the party in opposition to the
Government having the greatest numerical
strength and recognised as such by the
Chairman of the Council of States or the
Speaker of the House of the People, as the
case may be.

Explanation. --Where there are
two or more parties in opposition to the
Government, in the Council of States or in
the House of the People having the same
numerical strength, the Chairman of the
Council of States or the Speaker of the
House of the People, as the case may be,
shall, having regard to the status of the
10 All. Lal Bihari Yadav Vs. Chairman/Sabhapati, U.P. Legislative Council & Anr.
15
parties, recognise any one of the Leaders of
such parties as the Leader of the
Opposition for the purposes of this section
and such recognition shall be final and
conclusive.

23. Apparently, the aforesaid Act
does not provide for any mechanism or
procedure for appointment of a leader of
opposition. Thus, one has to search for
other collateral law enabling the speaker
for recognition of a leader of opposition.
This brings us immediately to Article 118
of the constitution of India, which inter-alia
provides for making of rules for regulating
each house of parliament, its procedure and
the conduct of its business, wherein the
"Rules of Procedure and conduct of
business in Lok Sabha" have been framed.
Rule 389 of the said Rues provides
residuary powers to the Speaker to regulate
all matters not specifically provided for in
these rules and all questions relating to the
detailed working of these rules. Since, no
specific rule has been provided for the said
purposes, time and again the speaker while
recognising a leader of opposition has
relied on Directions issued under Rule 389.
It is in terms of this rules that Direction 121
of the Directions by the Speaker of the Lok
Sabha has been provided, which inter-alia
provides
that
in
recognising
a
parliamentary party or group, the Speaker
shall take into consideration the following
principles:

"(1) An association of members
who propose to form a Parliamentary
Party--(a) shall have announced at the time
of the general elections a distinct ideology
and programme of Parliamentary work on
which they have been returned to the
House;

(b) Shall have an organisation
both inside and outside the House; and

(c) shall have at least a strength
equal to the quorum fixed to constitute a
sitting of the House, that is one-tenth of the
total number of members of the House.

(2) An association of members to
form a Parliamentary Group shall satisfy
the conditions specified in parts (a) and (b)
of clause (1) and shall have at least a
strength of 30 members."

24. Thus, in exercise of Rule 389 of
the Rules and Procedures and Conduct of
Business in the House of People, the
aforesaid directions were issued by the
First Speaker of Lok Sabha i.e., G.V.
Mavlankar which are popularly known as
''Mavlankar rule'. Direction 121 (c) of the
aforesaid directions states that party having
at least 10% of the strength of the House be
recognized as a Parliamentary Party and
leader of the largest such Parliamentary
party in opposition is designated as Leader
of Opposition.

25. Further, this court cannot be
oblivious of the fact that Section 2 Salaries
and
Allowances
of
the
Leader
of
Opposition in Parliament Act, 1977,
defines ''Leader of Opposition' as leader of
the party in opposition to the government
having the greatest numerical strength and
recognized by the Chairman of Council of
States or Speaker of House of People.
However, due to the above 10% rule
{Direction 121( c)} currently there is no
leader of opposition in the 17th Lok Sabha
as the strength of the party in opposition is
less than 10% of the total strength of the
House of People. As rightly pointed by the
Ld. Counsel for the respondent, it was for
this reason that the 1st, 2nd, 3rd, 5th,7th,
8th, and 16th Lok Sabha as well as 1st,
2nd, 3rd, 5th,7th and 8th Rajya Sabha had
no leader of opposition recognized by the
Speaker/ Chairman, due to the applicability
16 INDIAN LAW REPORTS ALLAHABAD SERIES
of 10% rule in all these years, since no
single opposition party had more than 10%
of the total membership of house. It may be
pertinent to mention herein that the present
Lok Sabha also does not have any leader in
opposition and in fact as reported in the
news, an application of the numerically
largest party to be appointed as a leader of
opposition was rejected by the speaker of
the Lok Sabha by stating inter-alia that
"After
consideration
of
applicable
provisions of relevant statutes, Directions
by the Speaker, Lok Sabha (Directions 120
and 121) and several past precedents
repeatedly followed for the last nearly 60
years which have been based upon decision
taken by many eminent Speakers in the
past, it has not been found possible to
accede to your request."

26. Now, coming back to the issue on
hand. As far as the state of Uttar Pradesh is
concerned, the said state has also enacted
The
Uttar
Pradesh
State
Legislature
(Members' Emoluments and Pensions) Act,
1980, wherein Section 2(h) of the Act reads
as under:

"2(h): ''Leader of Opposition' as
the member of the Assembly or the Council
who is for the time being recognized as
such by the Speaker, or the Chairman,
Deputy
Chairman
or
Parliamentary
Secretary."

27. The phrase "greatest numerical
strength" is conspicuously missing from the
aforesaid definition, which bestows a
discretion power on the speaker/ chairman
of the assembly/council in choosing a
Leader of Opposition. Further, Article 208
of the Constitution of India makes a
provision
with
respect
to
Rules
of
Procedure for State Legislature and Article
208(1) of the Constitution of India confers
power upon the concerned House of the
Legislature of a State to make rules for
regulating procedure and conduct of its
business.

28. The U.P. State Legislature in
exercise of the powers conferred by Article
208 of the Constitution of India has framed
rules viz. U.P. Rajya Vidhan Mandal ( Neta
Virodhi Ki Suvidhayan) Niyamvali, 1981,
wherein rule 3 of U.P. Rajya Vidhan
Mandal (Neta Virodhi Ki Suvidhayan)
Niyamvali, 1981 makes a provision with
respect to payment of salary to the
members of the opposition party. Rule 3(2)
of the aforesaid rules, 1981 specifically
provides that if the Chairman of the
Legislative Council derecognizes a leader
of opposition or if the aforesaid statutory
posts otherwise falls vacant, the salary
would be payable on the very next day.
Thus, the seat of the leader of opposition
falling vacant and the salary being payable
immediately on the very next date has been
envisaged by the Act, which also brings us
to the fore that de-recognition is not
something which is foreign to the said Act
as the seat of leader of opposition may fall
vacant due to various reasons, including the
reason of decrease in the numerical
strength of the members of the opposition
party.

29. Further, there is another aspect of
the matter. It cannot be lost sight of the fact
that Section 2(h) of the Uttar Pradesh State
Legislature (Members' Emoluments and
Pensions) Act, 1980 enables but does not
make it incumbent upon the Speaker or
Chairman to recognize a member as Leader
of Opposition. However, a perusal of Rule
3(2) of the U.P. Rajya Vidhan Mandal
(Neta Virodhi Ki Suvidhayan) Niyamvali,
1981, makes it evident that the Chairman or
the Speaker as the case may be has been
10 All. Lal Bihari Yadav Vs. Chairman/Sabhapati, U.P. Legislative Council & Anr.
17
given
the
power
and
authority
to
derecognize a Leader of Opposition.
Hence, it is not correct on the part of the
petitioner to submit that the Chairman of
the U.P. Legislative Council i.e. the
Respondent no.1 has exceeded jurisdiction
or has exercised authority not vested in him
to derecognize the petitioner.

30. The power conferred by Section
2(h) is a discretionary power and is like any
other statutory power to be exercised bona
fide and in reasonable manner. In the
absence of any statutory guideline, it would
be a reasonable exercise of power under
Section 2(h) if recognition is given to a
Member as Leader of Opposition in
conformity
with
the
well-established
Parliamentary conventions which are not in
conflict with and do not contravene the
provisions of the Constitution or any other
law for the time being in force. A provision
analogous to that of Section 2(h) contained
in Bihar Legislature (Leaders of the
Opposition Salary and Allowances) Act,
1978 came up for consideration before the
Patna High Court in Karpoori Thakur v.
State, AIR 1983 Pat 86, wherein the
learned Judge held that the basis of
recognition is not the Act in question but
the prevailing practice and convention and,
therefore, if the Speaker recognizes any
person as Leader of Opposition, he has to
follow the requirements of such practice
and convention also.

31. Further, Rule 234 of the Rules of
Procedure and Conduct of Business Rules,
1956 has been made, wherein although
Rule 234 does not talk about de-recognition
of the Leader of Opposition, but it defines
the ''quorum' to run and conduct business in
the House. That Rules 234 of the Rules of
the Procedure and Conduct of Business
Rules, 1956 entails inter-alia:

"Rule 234: When the attention of
the Chairman is drawn by a member to a
fact that less than ten members present in
the Council, he shall cause a warning bell
to be rung for two minutes. If the required
number of members is still not present, the
Chairman shall adjourn the Council to a
later hour on the same day or to a future
date to be named by him."

32. Thus, Rule 234 provides for the
quorum for conducting business in the
Council and provides that in case the
number of members in the House is less
than 10 members then no business can be
transacted as the quorum would be
incomplete. Pertinently, the Mavlankar
rule, also gives great significance to the
concept of Quorum in choosing a Leader of
Opposition.