# RA VI S. NAIK AND SANJAY BANDEKAR AND ANR. .B v. UNION OF INDIA AND ORS

- **Citation:** [1994] 1 S.C.R. 754
- **Court:** Supreme Court of India
- **Decided:** 1994-02-09
- **Case number:** Civil Appeal No. 29u4 of 1993
- **Bench:** M.N. Venkatachaliah, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ra-vi-s-naik-and-sanjay-bandekar-and-anr-b-v-union-of-india-and-ors-12130
- **Pages:** 40

## Headnote

Constitution of India, 1950 : Article 191(2)-Tenth Schedul~State
Legi.slature-Member-Defectiott-f'etition for disqualification of-Claim by
member that disqualification of defection was not applicable in view of para
C
3 of Tenth Schedule because there was split in the party and a new group was
constituted--Burden is on such member to prove requirements of para 3 of
Tenth Schedule-Members claim supported by a declaration-Genuineness
of signatures on declaration not disputed by members-Held constitution of
group was established-Computation of one third members as required by
D para 3 of Tenth Schedule-Exclusion by Speakers of members disqualified by
him but against which interim stay was granted by High Court-Held not
legal-Order passed by Speaker in disregard of stay order held nullity and
quashed.
Legislative assembly-Member-Disqualification order by Speake~
E
Speaker drawing inference from newspaper reports and photographs--Allegations not denied by members-Order held not vitiated-Expression "Voluntarily given up his membership''-Scope of-Held not synonymous with
resignation-Even in the absence of formal resignation inference as to voluntarily given up the membership may be drawn from the conduct of the
F
member.
Article 226-Writ jurisdiction-Power of High Court to pass interim
order--Interim order is binding until set aside by competent court.
Goa Legislative Assembly (Disqualification on Grounds of Defection)
G Rules, 1956: Rules 3, 4, 6(5 & 6) and 7(2) & (3).
Disqualification roles-Held procedural in natur~Violation of dis··
qualification rnle is i"egularity in procedure and does not amount to violation
>-- ...
of constitutional mandat~Violation of mies does not afford a ground for
judicial review-Disqualification petition-Speaker granting two days' time
H instead of seven days to file reply-Member filing detailed reply but not
754
R.S. NAIK v. U.0.1.
755
__.--l
denying allegations--Held time granted was not insufficient resulting in denial A
of adequate opportunity.
Judicial Review :
Disqualification order passed by Speaker of a legislative assembly under
Tenth Schedule of Constitution is subject to judicial review.
B
Violation of Disqualification Rules frumed under para 8 of Tenth
Schedule is not subject to judicial review.
Administrative Law: Natural Justice-Principles of-Cannot be put in
strait jacket formula-Effect of non-compliance should be considered in the
facts of each case.
c
By an order dated December 13, 1990 passed by the Speaker of Goa
Assembly appellants SB and RC were declared as disqualified from being
members of the Goa Legislative Assembly on the ground of defection under D
Article 191(2) read with paragraph 2(1)(a) of the Tenth Schedule to the
Constitution. Similarly, in the connected appeal also, the appellant RS was
disqualified by the Speaker vide his order dated February 15, 1991. Two
petitions were filed in the Bombay High Court challenging the orders
passed by the Speaker • one by SB and RC and the other by RS. In the
petition filed by SB and RC, the High Court passed an interim order dated E
December 14, 1990 staying the Disqualification order passed by the
Speaker. During the pendency of the petitions before the High Court the
Speaker, in exercise of his power of review set aside the disqualification
orders dated December 13, 1990 and February 15, 1991. The orders of
Speaker, passed in review, setting aside his earlier orders of disqualifica·
F
tion were challenged before the High Court which dismissed the petitions
on the ground of laches. Agains~the judgment of the High Court, appeals
were filed in this Court. By its judgment in Dr. Kashinath G. Jalmi & Anr.
v. Speaker & Ors., [1993] 2 S.C.C. 703, this Court allowed the appeals
holding that the orders passed by the Speaker in exercise of its power of
review were nullity and directed the High Court to dispose the petitions G
on merits. Thereafter the High Court heard the matter on merits and by
its judgment dated May 14, 1993 upheld the order

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A
RA VI S. NAIK AND SANJAY BANDEKAR AND ANR.
.B
v.
UNION OF INDIA AND ORS.
FEBRUARY 9, 1994
[M.N. VENKATACHALIAH, CJ. AND S.C. AGRAWAL, J.]
Constitution of India, 1950 : Article 191(2)-Tenth Schedul~State
Legi.slature-Member-Defectiott-f'etition for disqualification of-Claim by
member that disqualification of defection was not applicable in view of para
C
3 of Tenth Schedule because there was split in the party and a new group was
constituted--Burden is on such member to prove requirements of para 3 of
Tenth Schedule-Members claim supported by a declaration-Genuineness
of signatures on declaration not disputed by members-Held constitution of
group was established-Computation of one third members as required by
D para 3 of Tenth Schedule-Exclusion by Speakers of members disqualified by
him but against which interim stay was granted by High Court-Held not
legal-Order passed by Speaker in disregard of stay order held nullity and
quashed.
Legislative assembly-Member-Disqualification order by Speake~
E
Speaker drawing inference from newspaper reports and photographs--Allegations not denied by members-Order held not vitiated-Expression "Voluntarily given up his membership''-Scope of-Held not synonymous with
resignation-Even in the absence of formal resignation inference as to voluntarily given up the membership may be drawn from the conduct of the
F
member.
Article 226-Writ jurisdiction-Power of High Court to pass interim
order--Interim order is binding until set aside by competent court.
Goa Legislative Assembly (Disqualification on Grounds of Defection)
G Rules, 1956: Rules 3, 4, 6(5 & 6) and 7(2) & (3).
Disqualification roles-Held procedural in natur~Violation of dis··
qualification rnle is i"egularity in procedure and does not amount to violation
>-- ...
of constitutional mandat~Violation of mies does not afford a ground for
judicial review-Disqualification petition-Speaker granting two days' time
H instead of seven days to file reply-Member filing detailed reply but not
754
R.S. NAIK v. U.0.1.
755
__.--l
denying allegations--Held time granted was not insufficient resulting in denial A
of adequate opportunity.
Judicial Review :
Disqualification order passed by Speaker of a legislative assembly under
Tenth Schedule of Constitution is subject to judicial review.
B
Violation of Disqualification Rules frumed under para 8 of Tenth
Schedule is not subject to judicial review.
Administrative Law: Natural Justice-Principles of-Cannot be put in
strait jacket formula-Effect of non-compliance should be considered in the
facts of each case.
c
By an order dated December 13, 1990 passed by the Speaker of Goa
Assembly appellants SB and RC were declared as disqualified from being
members of the Goa Legislative Assembly on the ground of defection under D
Article 191(2) read with paragraph 2(1)(a) of the Tenth Schedule to the
Constitution. Similarly, in the connected appeal also, the appellant RS was
disqualified by the Speaker vide his order dated February 15, 1991. Two
petitions were filed in the Bombay High Court challenging the orders
passed by the Speaker • one by SB and RC and the other by RS. In the
petition filed by SB and RC, the High Court passed an interim order dated E
December 14, 1990 staying the Disqualification order passed by the
Speaker. During the pendency of the petitions before the High Court the
Speaker, in exercise of his power of review set aside the disqualification
orders dated December 13, 1990 and February 15, 1991. The orders of
Speaker, passed in review, setting aside his earlier orders of disqualifica·
F
tion were challenged before the High Court which dismissed the petitions
on the ground of laches. Agains~the judgment of the High Court, appeals
were filed in this Court. By its judgment in Dr. Kashinath G. Jalmi & Anr.
v. Speaker & Ors., [1993] 2 S.C.C. 703, this Court allowed the appeals
holding that the orders passed by the Speaker in exercise of its power of
review were nullity and directed the High Court to dispose the petitions G
on merits. Thereafter the High Court heard the matter on merits and by
its judgment dated May 14, 1993 upheld the orders of disqualification
passed by the Speakers and dismissed the petitions of the appellants.
Against the judgment of the High Court appeals were. preferred in this
Court. The case against SB and RC was that they were elected under the H
756
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A
Maharashtra Gomantak Party (MGP) ticket but they voluntarily gave up
the membership of the MGP. The allegation against them was that before "·
and after the assembly session, both of them voluntarily accompanied the
Congress(I) MLAs to the Governor and told him that they do not support
the MGP leader any longer. J .. .support of this allegation copies of several
B
c
newspapers showing photos of the appellants with Congress(I) MLAs
when they had met the Governor were relied on. The Speaker passed the
Disqualification order stating that the appellants, in their replies, havf' not
denied the allegations that they went to the Governor against MGP and
that although the appellants were present before him yet they did not come
forward to give any evidence.
The High Court upheld the Speaker's order and rejected the
appellant's contentions that (i) the order was passed in breach of the
constitutional mandate because there was contravention of the Goa Legislative Assembly (Disqualification of Grounds of Defection) Rules 1956; (ii)
D
there was violation of principle of natural justice because the Speaker
relied on extraneous matters or circumstances viz. the newspaper reports
showing photographs of the appellants with Congress(I) MLAs; and (iii)
no opportunity was given to the appellants to lead evidence.
In the petition filed against RS, it was alleged that he was elected on
E
MGP ticket and was later sworn as Chief Minister but he voluntarily gave
up the membership of the original party MGP and thereby incurred
disqualification under Article 191(2) read with paragraph 2(a) of Tenth
Schedule. In his reply to the Speaker, the appellants claimed that there
was a split in the original MGP as a result of which eight members of the
F
original party joined the newly constituted group represented by him; since
the MLAs who have disassociated from the original party constituted l/3rd
of the MLAs of original party, the disqualification on the ground of
defection was not applicable in view of para 3 of the Tenth Scht!dule. The
split was sought to be proved by a resolution bearing signatures of eight
MLAs which was submitted alongwith reply of the Speaker.
G
The Speaker passed the disqualification order holding that (i) the
split had not been proved because no intimation was given to him in accordance with Rules 3 and 4 of the Disqualification Rules; (ii) the requirements
of paragraph 3 of Tenth Schedule were not fulfilled because the group of
H MLAs who disassociated from the original MGP did not constitute l/3rd of
--+-
R.S.NAIK v. U.0.1.
757
the MLAs of the original parly (which was 18 in number) inasmuch as two A
MLAs of the group viz. SB and RC have already been disqualified by him
under his orders dated December 13, 1990 and one other MLA was excluded
on the ground that he had disowned his signature on the declaration. The
Speaker in excluding the two MLAs did not give effect to the stay order
passed by the High Court on the ground that it was passed by the High
Court after the order of disqualification was passed by him.
B
The High Court upheld the Disqualification order rejecting the
contentions of the appellants that (i) in view of the High Court's order
setting aside the disqualification of 2 MLAs, the Speaker was not right in
excluding the 2 members from the appellants' group; (ii) the letter written C
by one of the MLAs disowning his signature was relied on by Speaker
without affording opportunity to the appellant; (iii) the Parliament has
held that the Speaker's order cannot be a subject matter of court's
proceedings and his decision is final as far as Tenth Schedule of the
Constitution is concerned.
In appeal to this Court it was contended on behalf of SB and RC
that (i) the petitions filed against them were liable to be dismissed for
non-compliance with Rules 6(5) and (6) and 7(2) and (3) of the Disqualification Rules inasmuch as the petitions, which were not verified in
D
the manner laid down in the Code of Civil Procedure, did not contain a E
concise statement of the material facts on which the petitioner was relying
and the petitions were not accompanied by copies of the documentary
evidence; and (ii) the Disqualification order was passed by the Speaker in
violation of the Principles of Natural Justice becuase (a) the appellants
were given tw~ dayst time to file the reply instead of seven days as required
by Rule 7(3)(b); (b) the Speaker has relied on extraneous material viz. F
copies of newspapers and photographs; and ( c) the appellants were denied
the opportunity to adduce their evidence before the Speaker.
On behalf of RS, it was contended that (i) in view of the stay order
passed by the High Court whereby the operation of Disqualification order G
against SB and RC was stayed the Speaker was not right in excluding the
said two members from the appellants group; (ii) the letter written by one
of the MLAs disowning his signatures on the split resolution should not
have been relied upon by the Speaker Without affording an opportunity to
the appellant; and (iii) the Speaker erred in holding that the number of
members in the group formed by appellant was not one-third of the H
758
SUPREME COURT REPORTS
(1994) 1 S.C.R.
. A
original party.
B
c
Dismissing the appeals of SB and RC and allowing the appeal of RS,
this Court
HELD : In CA No. 3309 of 1993 :
1. The appellants have failed to make out a case for interference with
th,e Disqualification order dated December 13, 1990 passed by the Speaker.
[780-F]
2. Paragraph 2(1)(a) of the Tenth Sechedule provides for disqualification of a member of a House belonging to a political party "if he
bas 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 be has not tendered
D 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. [770-G-H, 771-A]
3. The Disqualification Rules have been framed to regulate the
E procedure that is to be followed by the Speaker for exercising the power
conferred on him under sub-paragraph (1). of paragraph 6 of the Tenth
Schedule to the Constitution. They are, therefore, procedural in nature and
any violation of the same would amount to an irregularity in procedure
which is immune from judicial scrutiny in view of sub-paragraph (2) of
F
paragraph 6 of the Tenth Schedule. Moreover, the field of judicial review
in respect of the orders passed by the Speaker under sub-paragraph (1)
of paragraph 6 is confined to breaches of the constitutional mandates mala
fides, non-compliance with Rules of Natural Justice and perversity. It
cannot be said that the violation of the Disqualification Rules amounts to
G violation of constitutional mandates. Doing so would be elevating the Rules
to the status of the provisions of the Constitution which is impermissible.
Since the Disqualification Rules have been framed by the Speaker in
exercise of the power conferred under paragraph 8 of the Tenth Schedule
they have a status subordinate to the Constitution and cannot be equated
with the provisions pf the Constitution. They cannot, therefore, be
H regarded as constitutional mandates and any violation of these Rules does
R.S. NAIK v. U.0.1.
759
not afford a ground for judicial review of the order of the Speaker in view A
of th~ fi.;ality clause contained in sub-paragraph (1) of paragraph 6 of the
Tenth Schedule. (776-D-H]
Kihoto Hollohan v. Zachillu & Ors., (1992) Supp. 2 S.C.C. 651,.relied
on.
4. In the circumstances of the case it cannot be said that the
impugned order of disqualification was passed by the Speaker in violation
of the principles of natural justice. (780-E]
B
5. An order of an authority exercising judicial or quasi-judicial C
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/Chairman 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 prineiples of natural I?
justice, it must be borne in mind that "they are not immutable but flexible"
and they are not cast in a rigid mould and they cannot be put in a legal
strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and
circumstances of a particular case. (777-E-G]
E
Smt. Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621; Union
of India v. Tulsi Ram, (1985) Supp. 2 S.C.R. 131; Mallocha v. Aberdeen
Corporation, (1971) 2 All E.R. 1278 and A.M. Allision v. B.L. Sen, (1957)
S.C.R. 359, referred to.
H. W.R. Wade : Administrative Law, 6th Edn. p.530 and Clive Lewis:
Judicial Remedies in Public Law (1992) p. 290, referred to.
F
6. It is no doubt true that under Rule 7(3)(b) of the disqualification
Rules, it has been provided that the member concerned can forward his
comments in writing .on the petitions within seven days of the receipt of G
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 the H
760
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A petitions about their having met the Governor in the company of other
Congress(I) MLAs, it cannot be said that the insufficient time given for
submitting the reply has resulted in denial of adequate opportunity to the
appellants to controvert the allegations. (779-D-F]
B
c
7. The High Court has rightly pointed out that the Speaker, in
referring to the photographs was drawing an inference about a fact which
had not-been denied by the appellants themselves, viz., that they had met
the Governor along with Congress(I) MLAs etc. The talk between the
Speaker and the Governor also refers to ttie same fact. In view of the
absence of a denial by the appellants of the averment that they had met
the Governor the reference to the newspaper reports and to the talk which
Speaker had with the Governor, in the impugned order of disqualification,
does not introduce an infirmity which would vitiate the said order as being
passed in violation of the principles of natural justice. (779-H, 780-A, CJ
8. The appellants were the best persons who could refute the allegaD tions made in the petitions. They, however, failed to do so. Therefore, the
grievance that the appellants have been denied the opportunity to adduce
the evidence is also without substance. (780-C, E]
E
In CA No. 2904 of .1993.
1. The order dated February 15, 1991, passed by the Speaker was in
violation of the constitutional mandate contained in paragraph 3 of the
Tenth Schedule to the Constitution and is liable to be quashed. (793-B]
2. Paragraph 2 of the Tenth Schedule provides for disqualification
F
on the ground of defection if the conditions laid down therein are fulfilled
and paragraph 3 of the said Schedule avoids such disqualifications in case
of split The burden to prove the requirements of paragraph 2 is on the
person who claims that a member has incurred the disqualification and
the burden to prove the requirements of paragraph 3 is on the member
G who claims that there has been a split in his original political party and
by virtue of said split the disqualification under paragraph 2 is not
attracted. (787-C-D]
3. In the present case the appellant has not disputed that he has
given up his membership of his original political party but he has claimed
H · that there has been a split in the said party. Therefore, the burden lay on
+-
--+
R.S. NAIK v. U.0.1.
761
him to prove that the alleged split satisfies the requirements of paragraph A
3. The first requirement of para 3 was satisfied because the appellant has
made such a claim. (787-E, G]
4. As to whether there was a split or not has to be determined by the
Speaker on the basis of the material placed before hiin. In the present case
the split was sought to be proved by the Declaration whereby eight MLAs B
belonging to the MGP declared that they has constituted themselves into
a group represented by the appellant. The genuineness of the signatures
on the said declaration was J?ot disputed before the Speaker. Disowning of
signature by one MLA may have a bearing on the number of members
constituting the group. But the fact that a group was constituted is C
established by the said Declaration. (788-F, H, 789-A]
5. The Speaker's views that the split had not been proved because no
intimation about the split has been given to him in accordance with Rules
3 and 4 of the Disqualification Rules cannot be endorsed. Rule 3 requires D
the information in respect of matters specified in Clauses (a), (b) and (c)
of sub-rule (1) to be furnished in the prescribed form 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. E
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 F
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 comes into play after
the split and the failure on the part of the leader of the group that has G
been constituted as a result of the split does not mean that there bas been
no split. (788-B-E]
6. In order to fulfil the second requirement of paragraph 8 of the
Tenth Schedule appellants group should consist of not less than six H
762
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A members of the legislature party which was eighteen in number. If the two
excluded members whose exclusion was not legal, are included within the
group of appellants, then it is not disputed that the number of members
in the group was more than one third of the legislature party ofMGP. This
would be so even if the member who disowned his signature was excluded
B
because the total number of members in the group of appellant would be
seven and the number of members of the legislature party ofMGP required
for the purpose of a split under paragraph 3 of the Tenth Schedule was
six. (787-H, 788-A, 792-H, 793-A]
7. The effect of the stay of the operation of the order of disqualificaC lion dated December 13, 1990 was that with effect from December 14, 1990
the Declaration that SB and RC were disqualified from being members of
Goa Legislative Assembly under order dated December 13, 1990 was not
operative and on December 24, 1990, the daie of the alleged split, it could
not be said that they were not members of Goa Legislative Assembly.
D In view of the stay order passed by the High Court, the Speaker while
passing the order dated February 15, 1991, could not have proceeded
on the basis that SB and RC stood disqualified under his order dated
December 13, 1990 and they could not be included in the group of
appellant for the purpose of ascertaining whether the said group consisted
E
one third members of the Legislature party of MGP, the original political
party. The Speaker was bound by the stay order passed by the High Court
and any action taken by him in disregard of the said stay order was a
nullity. (789-F, 792-G, 791-C]
F
Mu/raj v. Murti Raghonathji Maharaj, (1967) 3 S.C.R. 84 and State of
Orissa v. Madan Gopal Rungta, (1952) S.C.R. 28, referred to.
8. The action of Speaker in ignoring the stay order passed by the
High Court while passing the order dated February 15, 1991 cannot be
G condoned on the view that in the absence of the decision of this Court it
was open for the Speaker to proceed on his own interpretation of para·
graphs 6 and 7 of the Tenth Schedule and ignore the stay order passed by
the High Court. The decision of this Court in Kihoto Hollohan case
declares the law as it was on the date of the coming into force of the
H Constitution (Fifty Second) Amendment Act, 1985. (791-G-H, 792-A]
R.S.NAIK v. U.0.1.
763
Kihoto Hollohan v. Zachillhu & Ors., (1992] Supp. 2 S.C.C. 651, A
referred to.
9. The reason given by the Speaker that Parliamnet had held that
the Speaker's order cannot be a subject matter of court proceedings and
his decision is final as far as Tenth Schedule of the Constitution is
concerned, is unsustainable in law. As to whether the order of the Speaker B
could be a subject matter of court proceedings and whether his decision
was final were questions involving the interpretation of the provisions
contained in Tenth Schedule to the Constitution. On the date of the
passing of the stay order dated December 14, 1990, the said questions were
pending consideration before this Court. In the absence of an authoritative C
pronouncement by this Court the stay order passed by the High Court
could not be ignored by the Speaker on the view that his order could not
be a subject matter of court proceedings and his decision was final.
[789-H, 790-A-B]
'
10. An order, even though interim in nature, is binding till it is set D
aside by a compebmt court and it cannot be ignored on the ground that
the Court which passed the order had no jurisdiction to pass the same.
Moreover the stay order was passed by the High Court which is a Superior
Court of Record and "in the case of a superior Court of Record, it is for
the court to considt:r whether any matter falls within its jurisdiction or E
not. Unlike a court of limited jurisdiction, the superior court is entitled to
determine for itself questions about its own jurisdiction". [790-B-D]
Special Ref erer.Jce No. 1 of 1964, (1965] 1 S.C.R. 413, referred to.
11. It is true that an interim order is issued in aid of or ancillary to the F
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 Disqualification order dated December 13, 1990 passed by the Speaker had
been issued in aid of and ancillary to the main relief in the writ which was for
quashing of the Disqualification order. The fact that the writ petition was G
ultimately dismissed and the impugned order 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. The dismissal of the Writ
petition at the final stage does not confer validity on the action which was
taken by the Speaker in passing the order disqualifying the appellant in
disregard of the stay order passed by the High Court. [792-D-FJ
H
764
SUPREME COURT REPORTS
[1994) 1 S.C.R.
A
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 29u4 of
1993 etc.
From the Judgment and Order dated 14.5.93 of the Bombay High
Court in W.P. No. 48 of 1991.
B
AK. Sen, Uday Sinha, Bhavani Shankar, V. Gadnis and Shiv K. Suri
for the Appellant in C.A. No. 3309/93.
Soli J. Sorabjee, Sunil Dogra, Arvind Sharma, M.N. Raikar for P.H.
~
Parekh for the Appellant in C.A. No. 2904/93
C
R.K. Garg and S. Muralidhar for the Respondents.
The.Judgment of the Court was delivered by
S.C. AGRAWAL, J. 1. These appeals are directed against the judgment of the High Court of Bombay, Panaji Bench dated May 14, 1993 in
D Writ Petitions Nos. 48 of 1991 and 321 of 1990. They raise questions
relating to disqualification of a Member of the State Legislature under
Article 191(2) read with Tenth Schedule to the Constitution.
2. Elections for the Goa Legislative Assemble were held in November, 1989. The Assembly is composed of 40 members. After the elections
E
the position of the parties was as under :
F
Congress (I)
20
Maharashtrawadi Gomantak Party (MGP)
18
Independents
2
3. With the support of one independent member, the Congress (I)
formed the Government. After a short time seven Members left the Congress (I) and formed the Goan People's Party (GPP). GPP and MGP
G formed a coalition Government under the banner of Progressive
Democratic Front (PDF). At first Churchill Alemao became the Chief
Minister but later on Dr. Luis Proto Barbosa was sworn in as the Chief
Ministe~. 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,
H Dr. Barbosa, was required to seek a vote of Confidence. Before the
-+
R.S.NAIK v. U.0.1. (AGRAWAL,J.)
765
Assembly could meet Dr. Barbosa tendered his resignation as the Chief A
Minister on December 10, 1990 and the same was accepted. On December
10, 1990, Dr. Wilford D'Souza, leader of the Congress (I) Legislature party
staked his claim to form the Governnient. He claimed the support of 20
Members consisting of 13 Members of the Congress (I), 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 B
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 C
other information received by him, the President of India issued a
Proclamation dated December 14, 1990 under Article 356 of the Constitution whereby the President's Rule was imposed in the State and the
Legislative Assembly was suspended.
4. In the meanwhile, on December 10, 1990, Ramakant Khalap filed D
two separate petitions under Article 191(2) the Constitution before the
Speaker of the State Legislative Assembly whereby he sought that both
Bandekar and Chopdekar be disqualified as Members of the State Legislature on the ground of defection under Article 191(2) read with paragraph
2(i)(a) and 2(i)(b) of the Tenth Schedu!.e to the Constitution. By order E
dated December 13, 1990, the Speaker Shri Surendra Vir Sirsat, declared
both these appellants as disqualified from being members of the Goa
Legislative Assembly under Article 191(2) of the Constitution on the
ground of defection as set out in Paragraph 2{i){a) and 2(i)(b) of the Tenth
Schedule to the Constitution. Both these Members filed a writ petition F
{Writ Petition No. 321 of 1990) in the High Court on December 13, 1990.
The said writ Petition was amended on December 14, 1990 to incorporate
a challenge to the order dated December 13, 1990 passed by the Speaker.
In the said petition an interim order was passed by the High Court staying
the operation of the order dated December 13, 1990 with regard to
disqualification of the said Members.
G
5. On January 25, 1991, the Proclamation with regard to the
President's Rule was revoked and Ravi S. Naik, appellant in C.A. No. 2904
of 1993, was sworn in as the Chief Minister. On January 25, 1991 one Dr.
Kashinath G. Jhalmi belonging to the MGP filed a petition before the H
766
SUPREME COURT REPORTS
[1994] 1 S.C.R.
A
Speaker for disqualification of Naik on the ground of defection under
Article 191(2) read with Para 2(i)(a) of the Tenth Schedule to the Constitution. On the said petition the Speaker, Shri Sirsat, passed an order
dated February 15, 1991 declaring Naik as disqualified from being a
Member of the Goa Legislative Assembly under Article 191(2) of the
B
Constitution on the ground of defection as set out in Paragraph 2(i)(a) of
the Tenth Schedule to the Constitution. Naik filed a writ petition (Writ
Petition No. 48 of ::..991) in the Bombay High Court, Panaji Bench to
challenge the said order disqualification dated February 15, 1991.
6. While the aforesaid writ petitions were pending in the High Court
C Shri Sirsat was removed from the office of Speaker and the Dy. Speaker
begun 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
D 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 laches by the High Court
on February 4, 1992. C.A. No. 1095 of 199lwas filed in this Court against
E
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. 11/92 was filed by Dr. Jhalmi and Ramakant Khalap in the
High Court challenging the said order of review dated March 8, 1991
F
passed by the Acting Speaker and the said writ petition was dismissed by
the High Court on the ground of laches by order dated February 4, 1992.
C.A. No. 1094 of 1992 was filed in this court against the said order of the
High Court. Another writ petition (No. 70 of 1992) was filed by Churcill
Alemao against the said order of the Acting Speaker dated March 8, 1991
G which was also dismissed by the High Court by order dated February 15,
1991 on the ground of laches and C.A. No. 1096 of 1992 was filed by
Churchill Alemao in this Court against the said order of the High Court.
All the three appeals (C.A. No. 1094-96 of 1992) were allowed by this
Court by judgment dated March 31, 1993 Dr. Kashinath G. Jalmi and Anr.
v. Speaker & Ors., [1993] 2 SCC 703. By the said judgment, this Court set
H
aside the impugned orders of the High Court dated February 4, 1992,
·{
R.S. NAIK v. U.O.I. (AGRAWAL,J.)
767
dismissing Writ Petitions Nos. 11 and 8 of 1992 and the order of the High A
Court dated February 24, 1992, dismissing Writ Petition No.70of1992 and
allowing the said writ petitions this Court has declared that orders dated
March 7, 1992 and March 8, 1992 made by the Acting Speaker in purported
exercise of the power of review are nullity and liable to be ignored.·It was
held that the orders dated December 13, 1990 passed by the Speaker B
disqualifying Chopdekar and Bandekar and the order dated February 15,
1991 passed by the Speaker disqualifying Naik continue to operate and that
writ petition No. 321 of 1990 filed by Bandekar and Chopdekar and writ
petition No. 48 of 1991 filed by Naik would stand revived and the same
would be disposed of by the High Court on merits. Thereafter the High
Court heard the two writ petitions on merits and by judgment dated May C
14, 1993 both the writ petitions have been dismissed. Hence these appeals.
7. We propose to deal with the appeals separately because the
questions involved are not identical, but before we do so, we will briefly
refer to the provisions of the Tenth Schedule to the Constitution and the D
decision of this Court in Kihoto Hollohan v. Zachillhu & Ors., (1992) Supp.
2 SCC 651. The Tenth Schedule was introduced in the Constitution by the
Constitution (Fifty-second Amendment) Act, 1985. As stated in the Statement of Objects and Reasons, the said amendment was introduced to
combat the evil of political defections. It has been stated :
"The evil of political defections has been a matter of
national concern. If it is not combated, it is likely to
undermine the very foundations of our democracy and the
principles which sustain it. With this object, an assurance
E
was given in the Address by the President to Parliament
F
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 G
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 H
768
SUPREME COURT REPORTS
[1994) 1 S.C.R.
A 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
B has not been condoned by such political party, person or authority within
fifteen days from the date of such voting or abstention. Paragraph 3
removes the bar of disqualification in case of split in a political party
provided the group representing a faction which has arisen as a result of
~i.
split consists of not less than one third of the members of such legislature
party. Paragraph 4 removes the bar of disqualification on the ground of
C defection in a case of merger of a political party with another political
party. In sub-paragraph (1) of paragraph 6 the question as to whether a
member of a House has become subject to disqualification under the
Schedule is required to be referred for the decision of the Chairman or,
as the case may be, the Speaker of such House and his decision shall be
D final. Under sub-paragraph (2) of paragraph 6, all proceedings under
sub-paragraph (1) of paragraph 6 in relation to any question as to dis-
+--
qualification of a member of a House under the Schedule are to 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. Paragraph 7 bars the jurisdiction of all courts in
E respect of any matter connected with the disqualification of a member of
a House under the Schedule. Paragraph 8 empowers the Chairman or the
Speaker of a House to make rules for giving effect to the provisions of the
Schedule and such Rules may provide for matters specified in clauses (a)
to (d) of sub-paragraph (1).
F
9. The constitutional validity of the provisions contained in the Tenth
Schedule came up for consideration before a Constitution Bench of this
Court in Kihoto Hollohan v. Zachillhu & Ors., (supra). The Court was
unanimous in holding that paragraph 7 completely excludes jurisdiction of
all courts including the Supreme Court under Article 136 and High Courts
G under Articles 226 and 227 in respect of any matter connected with the
disqualification of the member of a House and the Bill introducing the said
amendment required ratification by the State Legislatures
under the
poviso to Article 368(2) of the Constitution and th~t no such ratification
was obtained for the Bill. There was, however, difference of opinion on the
H · effect of such non-ratification of the Bill. The nfajority view was that
RS.NAIK v. U.0.1.(AGRAWAL,J.]
769
paragraph 7 alone attracts the proviso to Article 368 and the rest of the A
provisions 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 B
presented to the Presid.ent 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, C
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:
"That the Tenth Schedule does not, in providing for an
additional grant (sic ground) for disqualification and for
adjudiciation of disputed disqualifications, seek to create
a non-justiciable constitutional area. The power to resolve
such disputes vested in the Speaker or Chairman is a
judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent
it seeks to impart finality to the decision of the
Speakers/Chairmen is valid. But the concept of statutory
finality embodied in Paragraph 6(1) does not detract from
D
E
or abrogate judicial review under Articles 36, 226 and 227
F
of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are
concerned.
That the deeming provision in Paragraph 6(2) of the Tenth
Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as undimtood
and explained in Keshav Singh [1%5] 1 SCR 413, case to
protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having
G
H
770
SUPREME COURT REPORTS
[1994) 1 S.C.R.
A
regard to the words 'be deemed to be proceedings in
Parliament' or 'proctedings in the legislature of a State'
confines the scope of the fiction accordingly.
B
c
D
E
The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as
Tribunal adjudicating rights and obligations under the
Tenth Sch~dule and their decisions in that capacity are
amenable to judicial review.
However, having regard to the Constitutional Schedule in
the Tenth Schedule, judicial review should not cover any
stage prior to the making of a decision by the
Speakers/Chairmen. Having regard to the constitutional
intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible,
the only exception for any interlocutory interference being
cases of interlocutory disqualifications or suspensions
which may have grave, immediate and irreversible repercussions and consequence." (pp.711-712)
We would now proceed to deal with the appeals.
CA. No. 3309/ 1993 :
10. This appeal has been filed by Bandekar and Chopdekar who were
elected to the Goa Legislative Assembly under the ticket of MGP. They
have been disqualified from membership of the Assembly under order of
= F
the Speaker dated December 13, 1992 on the ground of defection under
Paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule.