# SPEAKER HARYANA VIDHAN SABHA v. KULDEEP BISHNOI & ORS

- **Citation:** [2012] 10 S.C.R. 672
- **Court:** Supreme Court of India
- **Decided:** 2012-09-28
- **Case number:** Civil Appeal No.7125 of 2012
- **Bench:** Altamas Kabir, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/speaker-haryana-vidhan-sabha-v-kuldeep-bishnoi-ors-27970
- **Pages:** 29

## Headnote

Constitution of India, 1950 - Articles 226 & 227 and
Article 191 r/w Tenth Schedule - Haryana Vidhan Sabha -
C Five MLAs of one political party wrote letters to the Speaker
expressing their intention to merge their party with another
political party - Speaker accepted the merger and recognized
the said MLAs as Members of the other political party -
Petitions filed before the Speaker under paragraph 6 of the
D Tenth Schedule to the Constitution for disqualif1eation of the
said MLAs - On ground that they had voluntarily given up the
membership of their original political party and had joined
another party in violation of the provisions of paragraph 4(1)
of the Tenth Schedule - Writ Petition also filed - Single Judge
E of the High Court directed the Speaker to finally decide the
disqualification petitions pending before him within four
months - Division Bench affirmed the directions given by the
Single Judge, and further directed that pending decision by
the Speaker, the five MLAs in question would stand
F disqualified from effectively functioning as members of the
Haryana Vidhan Sabha - On appeal, held: Under the scheme
of the Tenth Schedule to the Constitution, the Speaker does
not have an independent power to decide that there has been
split or merger as contemplated by paragraphs 3 and 4
respectively of the Tenth Schedule and such a decision can
G be taken only when the question of disqualification arises in
a proceeding under paragraph 6 of the Tenth Schedule -
Restraining the Speaker from taking any decision under
paragraph 6 of the Tenth Schedule was beyond the jurisdiction
H
672
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 673
BISHNOI & ORS.
of the High Court, since the Constitution itself has vested the
A
Speaker with the power to take a decision under paragraph 6
and care has also been taken to indicate that such decision
of the Speaker would be final - Direction given by the Single
Judge, as endorsed by the Division Bench, upheld to the
extent it directs the Speaker to decide the petitions for
B
disqualification of the five MLAs within a period of four months
- Remaining portion of the order disqualifying the five MLAs
from effectively functioning as Members of the Haryana
Vidhan Sabha set aside - Said five MLAs entitled to fully
function as Members of the Haryana Vidhan Sabha without c
restrictions, subject to final decision by the Speaker in the
disqualification petitions - Haryana Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules,
1986.
Pursuant to the 12th Legislative Assembly Elections
D
in the State of Haryana, the Indian National Congress
Party, ['the INC'] emerged as the single largest party and
formed the Government. Subsequently, five MLAs of the
Haryana Janhit Congress (BL) Party ['the HJC (BL)']
wrote to the Speaker expressing their intention to merge
E
the HJC (BL) with the INC. The Speaker accepted the
merger and recognized the five concerned MLAs as
Members of the INC in the Haryana Vidhan Sabha.
Challenging the orders passed by the Speaker,
Respondent no.1 filed petitions before the Speaker under
F
Article 191 read with the Tenth Schedule to the
Constitution of India and the Haryana Legislative
Assembly (Disqualification of Members on Ground of
Defection) Rules, 1986, on the ground that they had
voluntarily given up the membership of their original G
political party and had joined the INC in violation of the
provisions of paragraph 4(1) of the Tenth Schedule.
Respondent no.1 also filed a Writ Petition. A Single Judge
of the High Court allowed the Writ Petition and directed
the Speaker to finally decide the disqualification petitions
H
674
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A pending before him within a period of four months.
Letters Patent Appeal was filed by the Speaker. The
Division Bench not only declined to interfere with the
directions given by the Single Judge, but in addition
directed that pending decision by the Speaker, the five
8 MLAs in question would stand disqu

## Text

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A
B
[2012] 10 S.C.R. 672
SPEAKER HARYANA VIDHAN SABHA
v.
KULDEEP BISHNOI & ORS.
(Civil Appeal No.7125 of 2012)
SEPTEMBER 28, 2012
[ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]
Constitution of India, 1950 - Articles 226 & 227 and
Article 191 r/w Tenth Schedule - Haryana Vidhan Sabha -
C Five MLAs of one political party wrote letters to the Speaker
expressing their intention to merge their party with another
political party - Speaker accepted the merger and recognized
the said MLAs as Members of the other political party -
Petitions filed before the Speaker under paragraph 6 of the
D Tenth Schedule to the Constitution for disqualif1eation of the
said MLAs - On ground that they had voluntarily given up the
membership of their original political party and had joined
another party in violation of the provisions of paragraph 4(1)
of the Tenth Schedule - Writ Petition also filed - Single Judge
E of the High Court directed the Speaker to finally decide the
disqualification petitions pending before him within four
months - Division Bench affirmed the directions given by the
Single Judge, and further directed that pending decision by
the Speaker, the five MLAs in question would stand
F disqualified from effectively functioning as members of the
Haryana Vidhan Sabha - On appeal, held: Under the scheme
of the Tenth Schedule to the Constitution, the Speaker does
not have an independent power to decide that there has been
split or merger as contemplated by paragraphs 3 and 4
respectively of the Tenth Schedule and such a decision can
G be taken only when the question of disqualification arises in
a proceeding under paragraph 6 of the Tenth Schedule -
Restraining the Speaker from taking any decision under
paragraph 6 of the Tenth Schedule was beyond the jurisdiction
H
672
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 673
BISHNOI & ORS.
of the High Court, since the Constitution itself has vested the
A
Speaker with the power to take a decision under paragraph 6
and care has also been taken to indicate that such decision
of the Speaker would be final - Direction given by the Single
Judge, as endorsed by the Division Bench, upheld to the
extent it directs the Speaker to decide the petitions for
B
disqualification of the five MLAs within a period of four months
- Remaining portion of the order disqualifying the five MLAs
from effectively functioning as Members of the Haryana
Vidhan Sabha set aside - Said five MLAs entitled to fully
function as Members of the Haryana Vidhan Sabha without c
restrictions, subject to final decision by the Speaker in the
disqualification petitions - Haryana Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules,
1986.
Pursuant to the 12th Legislative Assembly Elections
D
in the State of Haryana, the Indian National Congress
Party, ['the INC'] emerged as the single largest party and
formed the Government. Subsequently, five MLAs of the
Haryana Janhit Congress (BL) Party ['the HJC (BL)']
wrote to the Speaker expressing their intention to merge
E
the HJC (BL) with the INC. The Speaker accepted the
merger and recognized the five concerned MLAs as
Members of the INC in the Haryana Vidhan Sabha.
Challenging the orders passed by the Speaker,
Respondent no.1 filed petitions before the Speaker under
F
Article 191 read with the Tenth Schedule to the
Constitution of India and the Haryana Legislative
Assembly (Disqualification of Members on Ground of
Defection) Rules, 1986, on the ground that they had
voluntarily given up the membership of their original G
political party and had joined the INC in violation of the
provisions of paragraph 4(1) of the Tenth Schedule.
Respondent no.1 also filed a Writ Petition. A Single Judge
of the High Court allowed the Writ Petition and directed
the Speaker to finally decide the disqualification petitions
H
674
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A pending before him within a period of four months.
Letters Patent Appeal was filed by the Speaker. The
Division Bench not only declined to interfere with the
directions given by the Single Judge, but in addition
directed that pending decision by the Speaker, the five
8 MLAs in question would stand disqualified from
effectively functioning as members of the Haryana
Vidhan Sabha. The aforesaid directions were challenged
in the instant appeals by the Speaker and the five
concerned MLAs.
c
In the aforesaid context, the following substantial
questions of law arose for consideration:- (a) Whether
the High Court in exercise of its powers under Articles
226 arid 227 of the Constitution, has the jurisdiction to
issue directions of an interim nature to a Member of the
D House while a disqualification petition of such Member
is pending before the Speaker of a State Legislative
Assembly under Article 191 read with the Tenth Schedule
to the Constitution of India (b) Whether even in exercise
of its powers of judicial review, the High Court, as a
E constitutional authority, can issue mandatory directions
to the Speaker of a State Assembly, who is himself a
constitutional authority, to dispose of a disqualification
petition within a specified time (c) Can the High Court, in
its writ jurisdiction, interfere with the disqualification
F proceedings pending before the Speaker and pass an
order temporarily disqualifying a Member of the State
Legislative Assembly (d) When a disqualification petition
filed under Article 191 read with the Tenth Schedule to the
Constitution of India is pending consideration before the
G Speaker, can a parallel Writ Petition, seeking the same
relief, be proceeded with simultaneously and (e) Did the
High Court have jurisdiction to give directions under
Order 41 Rule 33 of CPC, despite the express bar
contained in the Explanation to Section 141 of CPC, in
H proceedings under Article 226 of the Constitution.
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 675
BISHNOI & ORS.
Disposing of the appeals, the Court
HELD:1.1. The scheme of the Tenth' Schedule to the
Constitution indicates that the Speaker is not competent
A
to take a decision with regard to disqualification on
ground of defection, without a determination under 8
paragraph 4, and paragraph 6 in no uncertain terms lays
down that if any question arises as to whether a Member
of the House has become subject to disqualification, the
said question would be referred to the Speaker of such
House whose decision would be final. The finality of the
C
decisions of the Speaker is in regard to paragraph 6
since the Speaker is not competent to decide a question
as to whether there has been a split or merger under
paragraph 4. Under the scheme of the Tenth Schedule,
the Speaker does not have an independent power to
decide that there has been split or merger as
D
contemplated by paragraphs 3 and 4 respectively and
such a decision can be taken only when the question of
disqualification arises in a proceeding under paragraph
6. It is only after a final decision is rendered by the
Speaker under paragraph 6 of the Tenth Schedule to the
E
Constitution that the jurisdiction of the High Court under
Article 226 of the Constitution can be invoked. [Para 44]
[697-D-F, H; 698-A-B]
.
1.2. Since the decision of the Speaker on a petition
under paragraph 4 of the Tenth Schedule concerns only
a question of merger on which the Speaker is not entitled
F
to adjudicate, the High Court could not have assumed
jurisdiction under its powers of review before a decision
was taken by the Speaker under paragraph 6 of the Tenth
G
Schedule to the Constitution. It is in fact in a proceeding
under paragraph 6 that the Speaker assumes jurisdiction
to pass a quasi-judicial order which is amenable to the
writ jurisdiction of the High Court. It is in such
proceedings that the question relating to the
H
676
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A disqualification is to be considered and decided.
Accordingly, res.training the Speaker from taking any
decision under paragraph 6 of the Tenth Schedule is
beyond the jurisdiction of the High Court, since the
Constitution itself has vested the Speaker with the power
B to take a decision under paragraph 6 and care has also
been taken to indicate that such decision of the Speaker
would be final. It is only thereafter that the High Court
assumes jurisdiction to examine the Speaker's order.
[Para 45] [698-D-G]
c
1.3. Order 41 Rule 33 CPC vests the Appellate Court
with powers to pass any decree and make any order
which ought to have been passed or made and to pass
or make such further or other decree or the order, as the
case may require. The said power is vested in the
D Appellate Court by the statute itself, but the principles
thereof cannot be brought into play in a matter involving
a decision under the constitutional provisions of the
Tenth Schedule to the Constitution, and in particular
paragraph 6 thereof. [Para 46] [698-H; 699-A-B]
E
1.4. The High Court assumed the jurisdiction which
it never had in making the interim order which had the
effect of preventing the five MLAs in question from
effectively functioning as Members of the Haryana Vidhan
F Sabha. The direction given by the Single Judge to the
Speaker, as endorsed by the Division Bench, is, therefore,
upheld to the extent that it direc~ the Speaker to decide
the petitions for disqualification of the five MLAs within
a period of four months. The said direction shall,
G therefore, be given effect to by Spe~ker. The remaining
portion of the order disqualifying the five MLAs from
effectively functioning as Members of the Haryana Vidhan
Sabha is set aside. The said five MLAs would, therefore,
be entitled to fully function as Members of the Haryana
Vidhan Sabha without any restrictions, subject to the final
H
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 677
BISHNOI & o~s.
decision that may be rendered by the Speaker in the
A
disqualification petitions filed under paragraph 6 of the
Tenth Schedule to the Constitution. The Speaker shall
dispose of the pending applications for disqualification
of the five MLAs in question within a period of three
months from the date of communication of this order.
B
[Paras 48, 49) [699-E-H; 700-A-B]
Raja Soap Factory vs. V. Shantharaj & Ors. 1965(2)
SCR 800; L. Chandra Kumar vs. Union of India (1997) 3 SCC
261; Banarsi vs. Ram Phal (2003) 9 SCC 606: 2003 (2) SCR
22; Kihoto Hoflohan vs. Zachil/hu (1992) Supp. (2) SCC 651:
C
1992 (1) SCR 686; Rajendra Singh Raha vs. Swami Prasad
Maurya (2007) 4 SCC 270: 2007 (2) SCR 591; Mayawati vs.
Markandeya Chand & Ors. (1998) 7 SCC 517: 1998 (2)
Suppl. SCR 204; Mahant Dhangir & Anr. vs. Madan Mohan
& Ors. (1987) Supp. SCC 528 and Jagjit Singh vs. State of D
Haryana (2006) 11 SCC 1 - referred to.
Case Law Reference:
1965 (2) SCR 800
referred to
Para 5(c), 25
(1997) 3 sec 261
referred to
Para 5(c), 34
2003 (2) SCR 22
referred to
Para 17
1992 (1) SCR 686
referred to
Para 19,20, 40
2007 (2) SCR 591
referred to
Para 24, 25, 39
1998 (2) Suppl. SCR 204 referred to
Para 25, 42
(1987) Supp. sec 528
referred to
Para 32
(2006) 11 sec 1
referred to
Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7125 of 2012.
From the Judgment & Order dated 20.12.2011 of the High
E
F
G
H
678
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A Court of Punjab and Haryana at Chandigarh in Letters Patent
Appeal No. 366 of 2011 and CWP No. 14194 of 2010.
B
WITH
C.A. Nos. 7126, 7127 and 7128 of 2012.
Rohinton F. Nariman, S.G.I, Mukul Rohtagi, Nidhesh Gupta,
Sat Pal Jain, Dr Rajeev Dhawan, Alok Sangwan, Shiel Sethi,
Devashish Bharuka, Pradeep Dahiya, Jasneet Chandhoke,
Charu Sangwan, Ruchi Kohli, Shivendra Dwivedi, Nidhi Gupta,
c Amit Kumar, Tarun Gupta, Aditya K. Chaudhary, lnderpal Goajat
J. Sen, Sanjai Kumar ,Pathak, Vijendra Kumar, Shaikh Chand
Saheb, Meenakshi Arora for the Appearing Parties.
The Judgment of the Court was delivered by
D
ALTAMAS KABIR, J. 1. Leave granted.
2. The subject matter of challenge in these appeals is the
final judgment and order dated 20th December, 2011, passed
by the Punjab & Haryana High Court in the different Letters
E
Pate~nt Appeals filed by the Appellants herein.
3. The first Civil Appeal, arising out of SLP(C)No.54 of
2012, has been filed by the Speaker of the Haryana Vidhan
Sabha against the judgment and order passed by the Punjab
and Haryana High Court in his Letters Patent Appeal No.366
F of 2011. By the said judgment, the Division Bench not only
dismissed the appeal and did not choose to interfere with the
directions given by the learned Single Judge to the Speaker
to decide the petitions for disqualification of five MLAs within
a period of four months, but in addition, directed that pending
G such decision, the five MLAs in question would stand
disqualified from effectively functioning as members of the
Haryana Vidhan Sabha. Aggrieved by the interim directions
purportedly given under Order 41 Rule 33 of the Code of Civil
Procedure (C.P.C.), the Speaker filed SLP(C)No.54 of 2012,
H challenging the same.
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 679
BISHNOI & ORS. [ALTAMAS KABIR, J.]
4. The other three Special Leave Petitions (now aμpeals) A
were filed by the five MLAs, who were prevented from
performing their functions as Members of the Assembly by the
directions contained in the impugned judgment and order dated
20th December, 2011. While SLP(C)No.55 of 2012 was filed
by Narendra Singh and another, SLP(C)Nos.59 of 2012 and
B
72 of 2012 were filed by Dharam Singh and another and Zile
Ram Sharma, being aggrieved by the impugned judgment and
order for the same reasons as contained in the Special Leave
Petition filed by Narendra Singh and another. The focal point
of challenge in all these appeals, therefore, is the orders c
passed by the Division Bench of the Punjab and Haryana High
Court on 20th December, 2011, while disposing of the Letters
Patent Appeals preventing the five named MLAs, who are also
Appellants before us, from effectively discharging their functions
as Members of the Vidhan Sabha. -
5. The facts narrated above give rise to the following
substantial questions of law of public importance, namely :-
D
(a)
Whether the High Court in exercise of its powers
under Articles 226 and 227 of the Constitution, has
E
the jurisdiction to issue directions of an interim
nature to a Member of the House while a
disqualification petition of such Member is pending
before the Speaker of a State Legislative Assembly
under Article 191 read with the Tenth Schedule to
F
the Constitution of India?
(b)
Whether even in exercise of its powers of judicial
review, the High Court, as a constitutional authority,
can issue mandatory directions to the Speaker of
a State Assembly, who is himself a constitutional G
authority, to dispose of a disqualification petition
within a specified time?
(c)
Can the High Court, in its writ jurisdiction, interfere
with the disqualification proceedings pending H
A
B
c
680
SUPREME COURT REPORTS
[2012) 10 S.C.R.
before the Speaker and pass an order temporarily
disqualifying a Member of the State Legislative
Assembly, despite the law laid down by this Court
in Raja Soap Factory vs. V. Shantharaj & Ors.
[(1965(2) SCR 800] and in L. Chandra Kumar vs.
Union of India [(1997) 3 SCC 261 ], to the contrary?
(d)
When a disqualification petition filed under Article
191 read with the Tenth Schedule to the Constitution
of India is pending consideration before the
Speaker, can a parallel Writ Petition, seeking the
same relief, be proceeded with simultaneously?
And
(e)
Did the High Court have jurisdiction to give
directions under Order 41 Rule 33 of the Code of
D
Civil Procedure, despite the express bar contained
in the Explanaticm to Section 141 of the Code of
Civil Procedure, in proceedings under Article 226
of the Constitution?
E
6. In order to provide the peg on which the above questions
are to be hung, it is necessary to understand the background
in which such substantial questions of law have arisen.
7. The 12th Legislative Assembly Elections in Haryana
were held on 13th October, 2009. After the results of the
F
elections were declared on 22nd October, 2009, the Indian
National Congress Party, hereinafter referred to as 'the INC',
emerged as the single largest party having won in 40 out of the
90 seats in the Assembly. Since it was short of an absolute
majority, the INC formed the Government in collaboration with
G seven independents and one MLA from the Bahujan Samaj
Party. Subsequently, on 9th November, 2009, four Legislative
Members of the Haryana Janhit Congress (BL) Party,
hereinafter referred to as 'the HJC (BL)', wrote to the Speaker
of their intention to merge the HJC (BL) with the INC in terms
H
of the provisions of paragraph 4 of the Tenth Schedule to the
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 681
BISHNOI & ORS. [ALTAMAS KABIR, J.]
Constitution of India. The Speaker was requested to accept the
A
merger and to recognize the applicant legislators as Members
of the INC in the Haryana Vidhan Sabha.
8. On hearing the four legislators, namely, Shri Satpal
Sangwan, Shri Vinod Bhayana, Shri Narendra Singh and Shri
B
Zile Ram Sharma, who appeared before him, the Speaker by
his order dated 9th November, 2009, accepted the merger with
immediate effect, purportedly in terms of paragraph 4 of the
Tenth Schedule to the Constitution and directed that from the
date of his order the said four legislators would be recognized
C
as legislators of the INC in the Haryana Vidhan Sabha.
Thereafter, a similar request was made to the Speaker by Shri
Dharam Singh, another Member of the Vidhan Sabha elected
as a candidate of the HJC (BL) to recognize the merger of the
HJC (BL) with the INC and to also recognize him, along with
the other four legislators, as Members of the INC in the Haryana
D
Vidhan Sabha. Subsequently, another application was filed by
Shri Dharam Singh before the Speaker on 10th November,
2009, requesting him to be recognized as a part of the INC in
the Haryana Vidhan Sabha. The Speaker by a separate order
dated 10th November, 2009, allowed the said application upon
E
holding that the same was in consonance with paragraph 4(1)
of the Tenth Schedule to the Constitution.
9. Challenging the aforesaid orders, the Respondent No.1,
Shri Kuldeep Bishnoi, filed five separate petitions before the
F
Speaker under Article 191 read with the Tenth Schedule to the
Constitution of India and the Haryana Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules,
1986, on the ground that they had voluntarily given u_p the
membership of their original political party and had joined the
G
INC in violation of the provisions of paragraph 4(1) of the Tenth
Schedule.
10. On receipt of the said petitions, the Speaker on 22nd
December, 2009, forwarded copies thereof to the concerned
MLAs. askinQ them to submit their comments within a period
H
682.
SUPREME COURT REPORTS
(2012] 10 S.C.R.
A of three weeks. On 7th April, 2010, applications were received
by the Speaker from the concerned MLAs praying for time to
file their written statement. The matter was accordingly
adjourned and further time was granted to the concerned MLAs
to file their explanation. The Respondent No.1, Shri Kuldeep
B Bishnoi, however, filed a Writ Petition, being C.W.P. No.14194
of 2010, in the Punjab & Haryana High Court, seeking quashing
of the orders passed by the Speaker on 9th and 10th
November, 2009, and also for a declaration that the five MLAs
in question were disqualified from the membership of the
c Haryana Vidhan Sabha, and, in the alternative, for a direction
on the Speaker to dispose of the disqualification petitions
within a period of three months. Notice of motion was issued
to the Respondents on 16th August, 2010, directing them to
enter appearance and to file their written statements, within
0 three days before the next date of hearing fixed on 1st
September, 2010, either in person or through a duly-instructed
Advocate.
11. On receipt of notice from the High Court, the Speaker
by his order dated 30th August, 2010, adjourned the hearing
E of the disqualification petitions sine die. On 20th December,
2010, the learned Single Judge of the High Court allowed the
Writ Petition and directed the Speaker to finally decide the
disqualification petitions pending before him within a period of
four months from the date of receipt of the certified copy of the
F order, which direction has given rise to the question as to
whether the High Court in its jurisdiction under Articles 226 and
227 of the Constitution was competent to issue such a direction
to the Speaker who was himself a constitutional authority.
12. In terms of the order passed by the learned Single
G Judge, the date of hearing of the five disqualification petitions
was fixed for 20th January, 2011, by the Speaker. On the said
date, Dharam Singh, one of the Appellants before us, filed his
reply before the Speaker along with an application for striking
out "the scandalous, frivolous and vexatious" averments made
H
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 683
BISHNOI & ORS. [ALTAMAS KABIR, J.]
in the disqualification petition. The matters had to be adjourned
A
on the said date till 4th February, 2011, to enable the Writ
Petitioner to file his reply to the said application and for further
consideration.
13. On the very next day, Letters Patent Appeal No.366
B
of 2011 was filed by the Speaker, challenging the order passed
by the learned Single Judge of the High Court on 20th
December, 2010. On 1st March, 2011, the said LPA was listed
before the Division Bench which stayed the operation of the
judgment of the learned Single Judge. A submission was also
C
made by the learned Solicitor General of India, appearing on
behalf of the Speaker, that every attempt would be made to
dispose of the disqualification petitions as expeditiously as
possible.
14. Thereafter, the disqualification petitions were taken up
D
for hearing by the Speaker on 1st April, 2011, and the case
was adjourned till 20th April, 2011, for further arguments. On
20th April, 2011, counsel for the parties were heard and order
was reserved on the application under Order 6 Rules 2 and 16
of the Code of Civil Procedure, which had been filed by Shri
E
Dharam Singh. By his order dated 27th April, 2011, the
Speaker dismissed the said application filed by Dharam Singhand Shri Kuldeep Bishnoi was directed to file his list of
witnesses along with their affidavits within 15 days from the
date of the order. It was also mentioned in the order that counsel
F
for the Respondents would be given an opportunity to crossexamine the Writ Petitioner's witnesses. Thereafter, the
Speaker fixed 25th May, 2011, for examination/crossexamination of Shri Kuldeep Bishnoi, MLA, and his witnesses,
and on the said date Shri Bishnoi's evidence was tendered and
G
recorded. However, his cross-examination could not be
completed and the next date for further cross-examination of
Shri Kuldeep Bishnoi was fixed for 6th June, 2011. In between,
on 2nd June, 2011, the matter came up before the Division
Bench of the High Court when directions were given for hearing
H
684
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A of the petitions at least every week i.e. at least four times in a
month. However, on account of the sudden demise of
Chaudhary Bhajan Lal, M.P. and former Chief Minister of
Haryana, and also the father of Shri Kuldeep Bishnoi, the
disqualification petitions were adjourned by the Speaker till 20th
B June, 2011. On 21st June, 2011, the Speaker fixed all
disqualification petitions for hearing on 24th June, 2011 and
for further cross-examination of Shri Kuldeep Bishnoi. The
cross-examination of Shri Kuldeep Bishnoi was concluded
before the Speaker on 7th July, 2011, and 5th August, 2011,
c was fixed for recording the evidence of the MLAs. On 18th July,
2011, Letters Patent Appeal No.366 of 2011 and other
connected matters were listed before the Division Bench of the
High Court. The said Appeal was heard on three consecutive
days when judgment was reserved.
D
15. In the meantime, proceedings before the Speaker
continued and since the same were not being concluded in
terms of the assurances given, the Division Bench of the High
Court directed the Speaker to file an affidavit on or before 11th
November, 2011. Finally, being dissatisfied with the progress
E of the pending disqualification petitions before the Speaker, the
Division Bench took up the Letters Patent Appeals on 2nd
December, 2011, when directions were given for production of
the entire records of the matter pending before the Speaker.
On 7th December, 2011, the relevant records of the
F proceedings before the Speaker were submitted to the High
Court which adjourned the matter till 19th December, 2011, for
further consideration. However, as alleged on behalf of the
Appellants, the Bench was not constituted on 19th December,
2011, and without any further hearing or giving an opportunity
G to the Speaker's counsel to make submissions on the status
report, the High Court proceeded to pronounce its judgment on
the Letters Patent Appeals. By its judgment which has been
impugned in these proceedings, the Division Bench upheld the
directions of the learned Single Judge directing the Speaker
H to decide the disqualification petitions within a period of four
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 685
BISHNOI & ORS. [ALTAMAS KABIR, J.]
months. However, while disposing of the matter, the Division
A
Bench stayed the operation of the orders passed by the
Speaker on the merger of the HJC (BL) with the INC dated 9th
November, 2009 and 10th November, 2009. It also declared
the five MLAs, who have filed separate appeals before this
. Court, as being unattached members of the Assembly with the
B
right to attend the Sessions only. It was directed that they would
not be treated either as a part of the INC or the HJC(BL) Party,
with a further direction that they would not hold any office either.
It is the aforesaid directions and orders which have resulted in
the filing of the several Special Leave Petitions (now Civil
C
Appeals) before this Court by the Speaker and the five
concerned MLAs. As a consequence of the order passed by
the Division Bench of the High Court, the five independent
Appellants before us have been prevented from discharging
their functions as Members of the Haryana Vidhan Sabha, even
before the disqualification petitions filed against them by Shri
D
Kuldeep Bishnoi could be heard and decided.
16. Appearing for the Speaker of the Vidhan Sabha, who
is the Appellant in the appeal arising out of SLP(C)No.54 of
2012, Mr. Rohington F. Nariman, Solicitor General of India,
E
contended that this was not a case where the survival of the
Government depended upon allegiance of the five MLAs under
consideration, since the Government was formed with the
support of seven Independents and one MLA from the Bahujan
Samaj Party. In fact, the five MLAs, against whom
F
disqualification petitions are pending consideration before the
Speaker, were not part of the Government when it was initially
formed.
17. Mr. Nariman contended that the learned Single Judge
decided the issue of merger in terms of paragraph 4 of the
G
Tenth Schedule to the Constitution by holding that the two orders
dated 9th and 10th November, 2009, were not final or conclusive
and that, in any event, when the disqualification petitions came
to be decided, it would be open for the Speaker to reconsider
H
686
SUPREME COURT REPORTS '[2012] 10 S.C.R.
A the issue of merger. The learned Solicitor General emphasized
thE~ fact that there was neither any appeal nor any crossobjection in respect of the aforesaid decision of the learned
Single Judge and even if the same fell within one of the
exceptions indicated in Banarsi Vs. Ram Phal [(2003) 9 SCC
B 606], the judgment must still be held to have become final
between the parties. The learned Solicitor General urged that
all the decisions which had been cited on behalf of the
Respondent No.1, were decisions rendered prior to the
judgment in Banarsi's case (supra). It was, therefore, submitted
C that the decision in Banarsi's case (supra) is the final view in
regard to the provisions of Order 41 Rule 33 of the Code of
Civil Procedure.
18. The learned Solicitor General then challenged the
orders of the Division Bench of the High Court on the ground
D of violation of the principles of natural justice. It was contended
that while the High Court had concluded the hearing and
reserved judgment on 20th July, 2011, by order dated 12th
October, 2011, it directed the Speaker to place on record the
status of the proceedings relating to the disqualification
E petitions. Although, the same were duly filed, without giving the
parties further opportunity of hearing with regard to the said
records, the Division Bench directed the matter to be listed for
further consideration on 19th December, 2011. It was submitted
that though the Bench did not assemble on 19th December,
F 2011, the Division Bench delivered the impugned judgment on
20th December, 2011, without any further opportunity of hearing
to the parties.
19. The learned Solicitor General submitted that the
procedure adopted was contrary to the law laid down in Kihoto
G Hol/ohan vs. Zachil/hu ((1992) Supp. (2) SCC 651], wherein
it was stated as under:-
"110. In view of the limited scope of judicial review that is
available on account of the finality clause in Paragraph 6
H
and also having regard to the constitutional intendment and
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 687
BISHNOI & ORS. [ALTAMAS KABIR, J.]
the status of the repository of the adjudicatory power i.e.
A
Speaker/Chairman, judicial review cannot be available at
a stage prior to the making of a decision by the Speaker/
Chairman and a quia timet action would not be
permissible. Nor would interference be permissible at an
interlocutory stage of the proceedings. Exception will,
B
however, have to be made in respect of cases where
disqualification or suspension is imposed during the
pendency of the proceedings and such disqualification or
suspension is likely to have grave, immediate and
irreversible repercussions and consequence."
c
20. The learned Solicitor General sought to reemphasize
the fact that the present case is not a case involving
disqualification or suspension of a Member of the House by the
Speaker during the pendency of the proceedings, but relates
to disqualification proceedings pending before the Speaker,
D
which were not being disposed of for one reason or the other.
It was submitted that the fact that the Speaker had not finalized
the disqualification petitions for almost a period of two years,
could not and did not vest the High Court with power to usurp
the jurisdiction of the Speaker and to pass interim orders
E
effectively disqualifying the five MLAs in question from
functioning effectively as Members of the House. The learned
Solicitor General urged that the facts of this case would not,
therefore, attract the exceptions carved out in Kihoto Ho/lohan's
case (supra).
F
21. The learned Solicitor General lastly urged that the
single-most important error in the impugned judgment is that it
sought to foreclose the right of the Speaker to decide the
disqualification petitions under paragraph 4 of the Tenth
G
Schedule. The said decision was also wrong since the Division
Bench chose to follow judgments which related to the concept
of "split" under paragraph 3· of the Tenth Schedule, which today
stands deleted therefrom. The learned Solicitor General
submitted that there was a clear difference between matters
H
688
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A relating to the erstwhile paragraph 3 of the Tenth Schedule and
paragraph 4 thereof. While paragraph 3 of the Tenth Schedule
required proof of two splits, paragraph 4(2) requires proof of
only one deemed merger. The learned Solicitor General
submitted that there was no concept of deemed split in
B paragraph 3. It was submitted that paragraph 4(2) is meant only
as a defence to a petition for disqualification and the same
would succeed or fail depending on whether there was a
deemed merger or not.
22. It was further submitted that under paragraph 4 of the
C Tenth Schedule, the Speaker was not the deciding authority on
whether a merger of two political parties had taken place or
not. It was urged that the expression used in paragraph 4(2) of
the Tenth Schedule "for the purpose of paragraph 4(1)" clearly
indicates that the deeming provision is not in addition to, but
D for the purpose of paragraph 4(1), which is entirely different from
the scheme of paragraph 3 which uses the expression "and",
thereby indicating that a split takes place only if there is a split
in the original political party and at least one-third of the
members of the legislature party also joined in. It was further
E submitted that the use of the expression "if and only if in
paragraph 4 of the Tenth Schedule is to re-emphasize the fact
that the Speaker cannot decide whether merger of the original
party had taken place, as he is only required to decide whether
merger was a defence in a disqualification petition filed under
F paragraph 6 of the Tenth Schedule.
23. The learned Solicitor General then urged that the
submission advanced on behalf of the Respondent No.1 that
in view of the delay by the Speaker in disposing of the
G disqualification petitions, this Court should decide the same,
was wholly misconceived, since it pre-supposes the vesting of
power to decide such a question on the Court, though the same
is clearly vested in the Speaker. Even otherwise, in the
absence of any Special Leave Petition by the Respondent
H No.1, the most that could be done by this Court would be to
dismiss the Special Leave Petition.
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 689
BISHNOI & ORS. [ALTAMAS KABIR, J.]
24. Distinguishing the various decisions cited before the A
Division Bench on behalf of the Respondent No.1, and, in
particular, the decision in Rajendra Singh Rana vs. Swami
Prasad Maurya [(2007) 4 SCC 270], the learned Solicitor
General submitted that in the said case, the life of the Assembly
was almost over, whereas in the present case the next election
B
would be held only in October, 2014. Furthermore, the same
was a judgment where the final orders passed by the Speaker
on the disqualification petitions were under challenge, unlike in
the present case where the disqualification petitions are still
pending decision with the Speaker.
c
25. The learned Solicitor General submitted that if the
decision in Rajendra Singh Rana's case (supra) which, inter
alia, dealt with the question relating to the Speaker's powers .
to decide a question in respect of paragraph 4 of the Tenth
Schedule independent of any application under paragraph 6 D
thereof, is to be made applicable in the facts of this case, the
same would be contrary to the decision of this Court in Raja
Soap Factory vs. S.P. Shantharaj [(1965) 2 SCR 800]. The
learned Solicitor General also made special reference to the
decision of this Court in Mayawati vs. Markandeya Chand & E
Ors. [(1998) 7 SCC 517], wherein it was, inter alia, held that if
the order of the Speaker disqualifying a Member was to be set
aside, the matter had to go back to the Speaker for a fresh
decision, since it was not the function of this Court to substitute
itself in place of the Speaker and decide the question which
F
had arisen in the case.
26. In addition to his aforesaid submissions, the learned
Solicitor General also submitted that various substantial
questions of law in regard to the interpretation of the G
Constitution, had arisen in the facts of the present case, namely,
(a)
Whether paragraph 4 of the Tenth Schedule to the
Constitution, read as a whole, contemplates that
when at least two-thirds of the members of the
legislature party agree to a merger between one H
690
SUPREME COURT REPORTS
[2012j 10 S.C.R.
A
political party and another, only then there is a
"deemed merger'' of one original political party with
another?
(b)
Whether in view of the difference in language
B
between paragraphs 3 and 4 of the Tenth Schedule,
a deemed merger is the only thing to be looked at
as opposed to a "split" which must be in an original
political party cumulatively with a group consisting
of not less than one third of the members of the
c
legislature party?
(c)
Whether post-merger, those who do not accept the
merger are subject to the anti-defection law
prescribed in the Tenth Scheudle?
D
(d)
Whether there is a conflict between the five-judge
Benches in Rajendra Singh Rana v Swami Prasad
Maurya, (2007) 4 SCC 270 as against Kihoto
Hollohan, 1992 Supp (2) SCC 651 and Supreme
Court Advocate-on-Record Association case,
E
(1988) 4 sec 409?
(e)
What is the status of an 'unattached' Member in
either House of Parliament or in the State
Legislature? [already under reference to a larger
Bench in Amar Singh v Union of India, (2011) 1
F
sec 2101?
(f)
Whether in view of Article 212(2) of the Constitution
of India, if a Speaker of a State Legislature fails to
decide a Petition for disqualification, he would not
G
be subject to the jurisdiction of any Court?
(g)
Whether the Speaker, while exercising original
jurisdiction/powers in a disqualification petition
under Para 6(1) of the Tenth Schedule to the
Constitution of India, has power to pass interim
H
orders?
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 691
BISHNOI & ORS. [ALTAMAS KABIR, J.]
27. According to the learned Solicitor General, the A
aforesaid questions, which involved interpretation of the
Constitution, were required to be decided by a Bench of not
less than 5 Judges in view of the constitutional mandate in
Article 145(3} of the Constitution, before a final decision was
taken in these appeals.
B
28. Appearing for Shri Kuldeep Bishnoi, the Respondent
No.1 in the appeals preferred by the Speaker, Haryana Vidhan
Sabha, and the five MLAs, against whom disqualification
proceedings were pending, Mr. Nidhesh Gupta, learned Senior C
Advocate, at the very threshold of his arguments submitted that
this was a case which clearly demonstrated how the process
of law was being misapplied and misused by the Speaker of
the Haryana Vidhan Sabha, so as to defeat the very purpose
and objective of the anti-defection law as contained in the Tenth
Schedule to the Constitution. Mr. Gupta emphasized in great D
detail the manner in which the Speaker had deferred the
hearing of the disqualification petitions filed by the Respondent
No.1 against the five MLAs, on one pretext or the other, despite
the fact that the applications for disqualification under paragraph
4(2) of the Tenth Schedule to the Constitution had been made
E
as far back as on 9th December, 2009.
29. Mr. Gupta submitted that till today, the said
disqualification applications are pending decision before the
Speaker and since such delay in the disqualification
F
proceedings was against the very grain and object of the Tenth
Schedule to the Constitution, the Division Bench of the High
Court had no other option but to pass appropriate orders by
invoking jurisdiction under Order 41 Rule 33 of the Code of Civil
Procedure. In effect, the entire burden of Mr. Gupta's G
submissions was directed against the prejudice caused to the
Respondent No.1 on account of the inaction on the part of the
Speaker in disposing of the pending disqualification petitions
within a reasonable time. Mr.