# DR. KASHINATH G. JALMI AND ANR. ETC. ETC v. SPEAKER AND ORS - **Citation:** [1993] 2 S.C.R. 820 - **Court:** Supreme Court of India - **Decided:** 1993-03-31 - **Case number:** Civil Appeal No. 1094 of 1992 - **Bench:** J.S. Verma, P.B. Sawant, N.M. Kasliwal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-kashinath-g-jalmi-and-anr-etc-etc-v-speaker-and-ors-11759 - **Pages:** 29 ## Headnote Constitution of India, 1950: Article 226-Writ-Dismissal at admission stage on ground of --:- C /ache,,-Whether valid. Legislative Assembly-Speaker's order disqualifying members under Tenth Schedule-Review by Speake,-Setting aside disqualification order,,-Writ in the nanire of class action challenging review order after ten month,,-Allegation that disqualified members continue to hold public ofD [ice-Dismissal by High Court on the ground of /aches held unjustifielique motive coupled with their conduct, the High Court was justified in refusing to exercise its discretionary powers under Article 226 orthe.Constitution at tlie behest or the appellants; the power under Article 136 also being discretionary this Court would also be justified in rerusing ' to intenere with the discretion so exercised by the High Court. c Allowing the appeals, this Court, HELD: 1. The judgment or the High Court that the writ ·petitions were liable to be dismissed, merely on the ground of laches cannot be sustained. [834-C] D 2. The exercise of discretion by the Court even where the application ~ is delayed, is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary E to prevent continuance of usurpation or office or perpetuation or an illegality. [839-F) 3. Io the present case the claim is for the issue or a writ or quo warranlo on the ground that respondents are holding public ollices, having suffered >.. disqualification as Member of the Assembly subsequent to their election, F and on• of them, continues to hold the high public office of Chief Minister. The relier claimed in the present case in not the conferment of a personal benefit to the petitioners, but for cessation or the usurpation of public offices held by respondents. Thus, the relier claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class G r action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. [837 C·D, 839-H, 840-A) 3.1. The motive or conduct of the appellants, as alleged by the respondents, can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the H - K.G. JALMI v. SPEAKER 825 5. The Speaker has no power of review under the Tenth Schedule, A and an order of disqualification made by him under para 6, thereof Is subject to correction only by judicial review. (841 ·F) 'r Kihoto Hollohan v. Zachil/u and Ors., (1992) Supp. 2 S.C.C. 651, referred to. Observations in Patel Narshi Thakershi & Ors. v. Pradyumansinghji Arjunsinghji, A.l.R. 1970 S.C. 1273 to the effect that the power to review is not inherent power and must be conferred by law either specifically or by necessary implications, relied on. "\ 5.1. There is no scope for reading i111to the Tenth Schedule any of the powers of the Speaker which he otherwise has while functioning as the Speaker in the House, to clothe him with any such power in his capacity B c as the statutory authority functioning under the Tenth Schedule of the Constitution. Accordingly any power of the Speaker, available to him while functioning in the House, is not to be treated as bis power of privilege as D the authority under the Tenth Schedule. (842 G·H, 843-A) Rule 7 (7) of the Members of the Goa Legislative Assembly (Dis· ~ qualification on grounds of Defection) Rules, 1986 and Rule 77 of the Rules of Procedure and Conduct of Business of the Goa Legislative As· sembly held inapplicable. 6. Para 7 has to be treated as non-existent in the Tenth Schedule from the very inception. As held by the majority in Kihoto Hol/ohan judicial review is available against an order of disqualification made by E )... the Speaker under para 6 of the Tenth Schedule, notwithstanding the F ' finality mentioned therein. It is on account of the nature of finality attach· ing by virtue of para 6, that the judicial review available against the Speaker's order has been labelled as lim_ited in Kihoto Hollohan and the expression has to be understood in that sense distinguished from the wide power in an appeal, and no more. Thus the Speaker's order is final being '( subject only to judicial review, according to the settled parameters of the G exercise of power of judiclal review in such cases. The existence of judicial review against the Speaker's order of disqualification made under para 6 is itself a strong indication to the contrary that there can be no inherent power of review in the Speaker, read in the Tenth Schedule by necessary implication. [845 B·E) H 826 SUPREME COURT REPORTS [1993]° 2 S.C.R. A 7. There is no merit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualilication; or that such a power existed till 12th November, 1991 when the decision in Kihoto Hollohan was rendered; or at least a limited power of review inheres in B the Speaker to correct any palpable error outside the scope of judicial review. [845 F·G] Kihoto Hollohan v. Zachillhu and Ors., [1992] Suppl. t S.C.C. 651, explained. c Shivdeo Singh & Ors. v. State of Punjab & Ors., A.I.R. 1963 S.C. 1909 and Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Ors., [1981] 2 S.C.R. 341, distinguished. 8. The impugned orders of the High Court, dismissing writ Petitions are set aside. The orders made by the Acting Speaker in purported D exercise of power of review are nullity and liable to be ignored. [847 E-F) E F . CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1094 of 1992. WITH Civil Appeal No.1095 of 1992. AND Civil Appeal No. 1096 of 1992. From the Judgment and Order dated 4.2.92 & 24.2.92 of the Bombay High. Court in W.P. Nos.11, 8 & 70 of 1992. R.K. Garg, Ram Jethmalani, V.A. Bobde, Harish N. Salve, K.J. John, G Ms. Deepa Dixit, Rakesh Gosain, Ms. Rani Jethmalani, P.K. Dey and Ms. .~ -,- ,, Shanta Ramchand for the Appellants. ~ Ashok Desai, F.S. Nariman, R.F. Nariman, P.H. Parekh, Sunil Dogra, J.D. Dwarka Das and S.C. Sharma for the Respondents. H The Judgment of the Court was delivered by ' I .- - < >- '1K.G. JALMI v. SPEAKER [VERMA, J.] 827 VERMA, J. These appeals, by special leave, arise from writ petition A Nos.11 of 1992, 8 of 1992 and 70 of 1992, all dismissed by the Bombay High Court at the Goa Bench merely on the ground of !aches; and they involve for decision 1he common question relating to the power of review, if any, of the Speaker to review his decision on the question of disqualification of y a Member of the House, rendered under the Tenth Schedule to the B Constitution. In those writ petitions, the orders passed by the Speaker, in purported exercise of the power of review, setting aside the earlier orders of disqualification of certain Members made on merits by the Speaker, - were challenged on the ground that the Speaker has no such power of review. The High Court took the view, that the writ petitions were filed after considerable delay, and, therefore, upholding the preliminary objec- c tion, had to be dismissed merely. on the ground of !aches; and, therefore, ' merit• of the contention that the Speaker had no such power of review was no! considered. The main questions which arise for decision in these appeals are, therefore, two; namely ( 1) LA CHES - Are the impugned orders of the High D Court dismissing the writ petitions merely on the ground of !aches susceptible to interference under Article 136 of the Constitution in the present case; and (2) POWER OF REVIEW - If so, does the Speaker, acting E as the authority under the Tenth Schedule of the Constitution, have no power of review, so that any order made by him in purported exercise of the power of review is a - nullity? The further question of the consequence and nature of relief to be F )... granted, would arise only if these questions are answered in favour of the · appellants. Ravi S. Naik, Ratnakar M. Chopdekar and Sanjay Bandekar were duly elected Members of the Goa Legislative Assembly in the elections G held in November, 1989. On 25.1.1991, Ravi S. Naik assumed the office of the Chief Minister of the State of Goa and he formed his Council of ·( Ministers, which include.t be exercised judicially, so as not to permit perpetuation of an illegality. Shri Jethmalani also submitted, that the doctrine of !aches does not apply where declaration sought is of nullity, in order to prevent H its continuing operation, and !aches is not relevant in the domain of public .,.. / - - K.G. JALMI v. SPEAKER [VERMA, J.] 833 law relating to public office, where the purpose is to prevent an usurper A from continuing to hold a public office. Shri Harish Salve adopted these arguments and further submitted that Dr. Kashinath Jalmi and Ramakant Khalap had consistently taken the stand, that the Speaker's order of disqualification is final and not open to B review by anyone. He submitted, that for this reason no prevarication in their stand can be attributed to either of them, as has been done against Churchill Alemao, by the learned counsel for the respondents, for his support to Ravi Naik during the intervening period. It was further urged by the learned counsel for the appellants, that the motive and conduct of the writ petitioners in such ·matters is not decisive or fatal to the enquiry C claimed in the writ petition, in as much as the relief claimed in the writ petition was not for personal benefit of the writ petitioner but for )arger public interest and good governance of the State of Goa by persons holding public offices, including that of the Chief Minister, only by lawful authority. Both Shri F.S. Nariman and Shri Ashok Desai supported the Judgment of the High Court, and stn;nuuusly urged that the High Court in exercise of its discretionary power under Article 226 of the Constitution was justified in refusing to exercise that power at the behest of the writ petitioners who were disentitled to grant of the relief on account of their conduct and motive for filing the writ petition. It was submitted by them that the writ petitioners, namely, Churchill Alemao, Dr. Kashinath Jalmi and Ramakant Khalap are all persons who, at different times, were associated with Ravi S.Naik as Chief Minister and were also obtaining benefit from him, which conduct coupled with their mctive of getting more political power to themselves, disentitled them from elaiming the relief. Shri Nariman submitted that the doctrine of !aches applies equally to a writ of quo wa"anto, as it does to a writ of certiorari. It was also submitted by learned counsel for the respondents that the explanation given for the delay D E F in filing the writ petitions, challenging the orders of review made by the Acting Speaker, is facile and untenable It was submitted, that notwithstanding the pendency of the question of the validity of the Tenth G Schedule in this Court, writ petitions were being filed challenging the orders made by the Speakers under the Tenth Schedule. It was submitted that all the writ petitioners, in view of their status in life, were fully aware that the Speaker's order of review could be challenged by a writ petition, even before the decision rendered by this Court on 12th November, 1991 H 834 SUPREME COURT REPORTS [1993] 2 S.C.R. A in Kihota Hollohan. The main thrust of the argument of the counsel for the respondents was, that in these circumstances the High Court was justified in dismissing the writ petitions at the threshold in exercise of its discretionary power under Article 226 of the Constitution, and, therefore, the power under Article 136 of the Constitution also being discretionary, B this Court would be justified in refusing to interfere with the discretion so exercised by the High Court. Having given our anxious consideration to the forceful submissions of learned counsel for the both sides, we find ourselves unable to sustain the judgment of the High Court that the writ petitions were liable to be C dismissed, merely on the ground of !aches. One of the submissions of Shri Nariman was, that even though there is no period of limitation prescribed by statute for filing a writ petition, yet in a case like the present, the apt analogy is of an election petition calling D in question an election, which is required to be filed within 45 days from the date of election of the returned candidate, as provided in Section 81(1) of the Representation of the People Act, 1951, to indicate that unless such a challenge is made promptly the courts would refuse to examine such a question afte1 the lapse of a reasonable period. On this basis, he argued that a writ petition filed after ten months of the date of the order of review E made by the Speaker acting under the Tenth Schedule, must be treated as j__ unduly delayed and is liable to rejection on the ground of !aches, as has been done by the High Court in the present case. We are unable to accept this part of the submission since it is not an apt analogy. F The remedy of an election petition is statutory, governed by the limitation prescribed therein, unlike the remedy under Article 226 of the Constitution. That apart, the analogy which is more apposite, is the decision on questions as to the dis-qualification of Members in accordance with Article 103 in the case of a Member of Parliament or Article 192 in G the case of a Member of a House of a Legislature of a State. For raising a dispute, giving rise to any question whether a Member of a House has become subject to any of the disqualification mentioned in clause (1) of Article 102 or 191, as the case may be, there is no prescribed limitation, and so also for challenging the decision rendered under Article 103 or 192 by a writ petition. The question of the disqualification of a Member on the H ground of defection and the Speaker's order thereon, rendered under the - ·~. - - K.G. JALMI v. SPEAKER [VERMA, J.] 835 Tenth Schedule, is of a similar nature and not based on the result of an A election which can be challenged only by an election petition in accordance with the provisions of Representation of the People Act, 1951. The decision by a constitution bench in Brundaban Nayak v. Election Commission of India and another, [1965] 3 SCR 53 indicates the significance of deciding the question of disqualification of a Member as soon as it arises, even at the instance of a citizen, since 'the whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in public interest,' .......... ., that the matter was decided. There is no indication in Bnindaban Nayak, that the delay in raising the question of disqualification provides justification for refusing to decide B c the same, and the emphasis really is on a prompt decision by the competent authority on the question being raised, since it is not the interest of the constituency which such a Member represents, to delay the decision. This D decision is an indication that the authority competent to decide the question of disqualification must act promptly in deciding the same, once it is raised even by a citizen, in order to prevent a disqualified Member from representing the constituency after incurring a disqualification subsequent to h!s election, so long as the ·question remains a live issue during the tenure E of the Member. This aspect is significant for dealing with the question of !aches in the present case. In order to justify dismissal of the writ petitions for !aches Shri Nariman placed reliance on certain decisions, some of which have been referred by the High Court. Shri Nariman argued that the doctrine of F !aches applies as much to the writ of quo wa"anto, as it does to a writ of certiorari, and that the oblique motives of the petitioner together with his conduct may disentitled him to grant of the relief claimed by such a petition. We now refer to some of these decisions. The basic decision for submission on the doctrine of !aches, relied G on, is "Die Lindsay Petroleum Company v. Prosper Amzstrong Hurd, Abram Farewell and John Kemp, 1874 L.R. 5 PC 221 which has been followed in the decisions of this Court in The Moon Mills Ltd. v. M.R. Meher, Preside/ti, llldustrial Cozm, Bombay and Ors., AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation v. Sltri Ba/want Regular Motor Service H 836 SUPREME COURT REPORTS [1993] 2 S.C.R. A Amravati & Ors., [1969] 1 SCR 808. In The Moon Mills Ltd., a writ of certiorari was sought to challenge a decision affecting the rights of the Petitioner, wherein the question arose whether the petitioner could be denied the relief on the ground of acquiescene or !aches. In that context it was observed that the issue of a writ of certiorari is a matter of sound ""' B discretion, and that 'the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party.' It was observed, that the exercise of - discretion under' Article 226 to issue a writ of certiorari is based on the principle to a great extent, though not identical with, similar to the exercise c of discretion in the Court of Chancery.' For this principle, involving the doctrine of !aches in courts of equity, reference was made to the observation of Sir Barnes Peacock in Lindsay Petroleum Co. The decision was followed in, and the principle reitered in Maharashtra State Road Transport Corporarion again in the context of the discretion under Art. 226 of the D Constitution to issue a writ of certiorari. Like all equitable principles, the doctrine of !aches applies where it would be unjust to give a remedy to the petitioner, who is disentitled to grant of the same by his conduct or any other relevant circumstances, including the creation of third party rights during the intervening period, which are attributable to the !aches of the petitioner. E Strong reliance was placed on the decision in Mis Tilokchand & Motichand & Ors. v. H.B. Munshi & Anr., (1969) 1 SCC 110, wherein relief· - under Article 32 of the Constitution was refused on the ground of delay, to contend that if delay can be fatal under Article 32, itself a fundamental F right, it is more so in a petition under Article 226 of the Constitution, wherein grant of the relief is discretionary. The decision of this Court in Shri Val/abh Glass Works Ltd. and Anr. v. Union of India and Ors., [1984] 3 SCC 362 an<) Mis Dehri Rohtas Light Railway Company Ltd. v.