# SRI RAJENDRA SINGH RANA AND ORS v. SWAMI PRASAD MAURY A AND ORS

- **Citation:** [2007] 2 S.C.R. 591
- **Court:** Supreme Court of India
- **Decided:** 2007-02-14
- **Case number:** Civil Appeal No. 765 of2007
- **Bench:** K.G. Balakrishnan, H.K. Sema, Dr. Ar. Lakshmanan, P.K. Balasubramany An, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-rajendra-singh-rana-and-ors-v-swami-prasad-maury-a-and-ors-22573
- **Pages:** 39

## Headnote

Constitution of India, 1950:
A
B
Article 191 read with para 2 of Tenth Schedule-Defection- C
Disqualification of MLAs-13 MLAs elected on tickets of the political party
whose Chief Minister had submitted resignation of her Cabinet, giving letters
of request to Governor to invite leader of opposition party to form
Government-Petition before Speaker to disqualify the said 13 MLAs-Later,
a request made to Speaker by 37 MLAs, elected on tickets of the same party D
to recognize a split in the party-Speaker accepting split without deciding
application seeking disqualification-Writ Petition before High Court-Later,
Speaker rejecting application/or disqualification-This order also challenged
in writ petition-High Court after keeping petition pending for long quashed
order of Speaker and remitted matter to him to decide application for
disqualification-Held, Speaker has necessarily to decide question of E
disqualification as a Tribunal-The MLAs sought to be disqualified have a
right to take plea of split or merger of their party with another party and
the claim under paragraph 3 or paragraph 4 of Tenth Schedule are answers
to prayer for disqualification-Under Tenth Schedule Speaker does not have
an independent power divorced from motion seeking disqualification of F
members concerned, to decide the split or merger as contemplated in
paragraph 3, or paragraph 4 of Tenth Schedule-To that extent original
order of Speaker cannot be considered to be in terms of Tenth Scheduleln the letters given by 13 MLAs, there was no claim regarding split-The act
of giving letters requesting Governor to call upon leader of other side to form
Government would, within meaning of paragraph 2 of Tenth Schedule, amount G
to voluntarily giving up membership of the party on whose tickets said
members had got elected-It has not been proved that there was any split
in the party on relevant date as claimed by them-Therefore, thz 13 MLAs
stand disqualified from the State Legislative Assembly in terms of Article
591
H
592
SUPREME COURT REPORTS
(2007] 2 S.C.R.
A 191(2) read with paragraph 2 of Tenth Schedule with effect from the date
they gave letters to the Governor-Interpretation of Constitution-Purposive
'"1interprelat ion.
Article 191 read with para 2 and para 6 of Tenth ScheduleDisqualification of MLAs on ground of defection-Time when it occursB Held, disqualification occurs on a member voluntarily giving up his
membership of the political party or at the point of defiance of whip issued
to him.
Articles 226 and 136, Para 6 of Tenth Schedule-Judicial review of
)
C order of Speaker of State Legislative Assembly-Petition before Speaker
seeking disqualification of certain members of a political party in terms of
paragraph 2 of Tenth Schedule-Later application before Speaker by some
more members of the said party to recognize split in the party in terms of
paragraph 3 of Tenth Schedule-Speaker keeping application for
disqualification pending and recognizing the split-Held, Speaker totally
D misdirected himself in holding that there was split in the party while leaving
open the question of disqualification and thus committed a jurisdictional
illegality warra~ting exercise of power of judicial review-By leaving the
question of disqualification undecided in original order, Speaker failed to
exercise jurisdiction conferred on him in para 6 of Tenth Schedule-Speaker
has committed an error that goes to root of matter or an error that is so
E fundamental that even under a limited judicial review, order of Speaker has
to be interfered with-High Court was right in quashing order of Speaker.
AdministratiOn of Justice:
High Court-Dealing with matter of some consequence and
F constitutional propriety in a tardy manner-Held, more promptitude was
expected of the High Court and it should have ensured that the unfortunate
happenings were avoided
The Coalitio~ Government of the State of Uttar Pradesh headed by the
G leader of Bahuja Samaj Party took a unanimous decision on 25.8.2003

## Text

_Characters 0–39,989 of 104,769. This is a partial read: ask again with offset=39989 for what follows._

SRI RAJENDRA SINGH RANA AND ORS.
v.
SWAMI PRASAD MAURY A AND ORS.
FEBRUARY 14, 2007
[K.G. BALAKRISHNAN, CJ., H.K. SEMA, DR. AR. LAKSHMANAN,
P.K. BALASUBRAMANY AN AND D.K. JAIN, JJ.]
Constitution of India, 1950:
A
B
Article 191 read with para 2 of Tenth Schedule-Defection- C
Disqualification of MLAs-13 MLAs elected on tickets of the political party
whose Chief Minister had submitted resignation of her Cabinet, giving letters
of request to Governor to invite leader of opposition party to form
Government-Petition before Speaker to disqualify the said 13 MLAs-Later,
a request made to Speaker by 37 MLAs, elected on tickets of the same party D
to recognize a split in the party-Speaker accepting split without deciding
application seeking disqualification-Writ Petition before High Court-Later,
Speaker rejecting application/or disqualification-This order also challenged
in writ petition-High Court after keeping petition pending for long quashed
order of Speaker and remitted matter to him to decide application for
disqualification-Held, Speaker has necessarily to decide question of E
disqualification as a Tribunal-The MLAs sought to be disqualified have a
right to take plea of split or merger of their party with another party and
the claim under paragraph 3 or paragraph 4 of Tenth Schedule are answers
to prayer for disqualification-Under Tenth Schedule Speaker does not have
an independent power divorced from motion seeking disqualification of F
members concerned, to decide the split or merger as contemplated in
paragraph 3, or paragraph 4 of Tenth Schedule-To that extent original
order of Speaker cannot be considered to be in terms of Tenth Scheduleln the letters given by 13 MLAs, there was no claim regarding split-The act
of giving letters requesting Governor to call upon leader of other side to form
Government would, within meaning of paragraph 2 of Tenth Schedule, amount G
to voluntarily giving up membership of the party on whose tickets said
members had got elected-It has not been proved that there was any split
in the party on relevant date as claimed by them-Therefore, thz 13 MLAs
stand disqualified from the State Legislative Assembly in terms of Article
591
H
592
SUPREME COURT REPORTS
(2007] 2 S.C.R.
A 191(2) read with paragraph 2 of Tenth Schedule with effect from the date
they gave letters to the Governor-Interpretation of Constitution-Purposive
'"1interprelat ion.
Article 191 read with para 2 and para 6 of Tenth ScheduleDisqualification of MLAs on ground of defection-Time when it occursB Held, disqualification occurs on a member voluntarily giving up his
membership of the political party or at the point of defiance of whip issued
to him.
Articles 226 and 136, Para 6 of Tenth Schedule-Judicial review of
)
C order of Speaker of State Legislative Assembly-Petition before Speaker
seeking disqualification of certain members of a political party in terms of
paragraph 2 of Tenth Schedule-Later application before Speaker by some
more members of the said party to recognize split in the party in terms of
paragraph 3 of Tenth Schedule-Speaker keeping application for
disqualification pending and recognizing the split-Held, Speaker totally
D misdirected himself in holding that there was split in the party while leaving
open the question of disqualification and thus committed a jurisdictional
illegality warra~ting exercise of power of judicial review-By leaving the
question of disqualification undecided in original order, Speaker failed to
exercise jurisdiction conferred on him in para 6 of Tenth Schedule-Speaker
has committed an error that goes to root of matter or an error that is so
E fundamental that even under a limited judicial review, order of Speaker has
to be interfered with-High Court was right in quashing order of Speaker.
AdministratiOn of Justice:
High Court-Dealing with matter of some consequence and
F constitutional propriety in a tardy manner-Held, more promptitude was
expected of the High Court and it should have ensured that the unfortunate
happenings were avoided
The Coalitio~ Government of the State of Uttar Pradesh headed by the
G leader of Bahuja Samaj Party took a unanimous decision on 25.8.2003 for
recommending dissolution of the Assembly. On 26.8.2003 the Chief Minister
submitted resignation of her Cabinet. On 27.8.2003, 13 members of the
Legislative Assembly elected on tickets of BSP requested the Governor to
.-"
invite the leader of Samajwadi Party to form the Government. In the
circumstances, the Governor did not accept the recommendation to dissolve
H the Assembly and invited the leader of Samajwadi Party to form the
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURY A
593
~
Government. On 4.9.2003, leader of the Legislature, B.S.P. (B.S.P. leader) A
filed a petition before the Speaker in terms of Article 191 read with para 2 of
the Tenth Schedule to the Constitution of India praying for disqualification of
the 13 B.S.P. MLAs, who proclaimed support to Samajwadi Party before the
Governor, since they had voluntarily given up their membership of BSP. On
6.9.2003, a request was made to the Speaker by 37 MLAs elected on BSP B
tickets including the earlier 13 MLAs, to recognise a split in BSP as one
third of the members out of l 09 Legislators of BSP had in a body separated
I.
from the party pursuant to a meeting held on 26.8.2003. The Speaker passed
an order accepting the split in BSP. The Speaker, however, did not decide the
application made by BSP leader seeking disqualification of the 13 MLAs. c
The BSP leader filed a writ petition before the High Court on 29.9.2003
challenging the order dated 6.9.2003, passed by the Speaker. The Division
Bench of the High Court kept on adjourning the matter. Meanwhile the
Speaker rejected the application seeking disqualification of the 13 BSP MLAs
by his order dated 7.9.2005, though earlier he had adjourned the application
for being taken up after the decision of the writ petition. In view of the order D
date 7.9.2005, an amendment application was moved in the writ petition. Due
.,
to the lack of mutual understanding between the two Judges comprising the
f
Bench, the matter was referred to the Full Bench headed by the Chief Justice
of the High Court. The writ petition was disposed of by 2-1 majority. The Chief
Justice dismissed the writ petition, whereas the remaining two Judges quashed E
the orders of the Speaker and directed him to reconsider the matter with
particular reference to the petition for disqualification of the 13 MLAs.
Aggrieved, the writ petitioner filed CA No. 769 of2007 and the 37 MLAs,
who left the BSP, filed the other appeals.
It was contended for the writ petitioner that the Speaker committed an F
illegality in not deciding his petition for disqualification of the 13 MLAs, and
subsequently recognising 37 MLAs including the 13, as a separate group on
the ground that they had split from the BSP. It was submitted that the liability
or disability was incurred at the point of voluntarily giving up the membership
of the political party. On the other hand, according to the 37 M.L.As._ who left G
the party, the relevant point of time was the time when the Speaker took a
.
decision on the plea for disqualification.
\
~
On the questions: whether the impugned decision of Speaker is liable
to be set aside in exercise of the power of judicial review; whether on 27.8.2003
the 13 MLAs of B.S.P. who met the Governor with the request to invite the H
594
SUPREME COURT REPORTS
[2007] 2 S.C.R.
A leader of Samajwadi J>arty to form the Government had defected on 27.8.2003;
rand whether they were able to establish their claim that on 26.8.2003 there
had been a split in the Bahujan Samaj Party and one third of the BSP MLAs
had come out of that party,
Allowing Civil Appeal No. 769 of2007 filed by the writ petitioner (BSP
B leader), and dismi~sing the appeals of the 37 MLAs, the Court
HELD:l.1. In the context of the introduction of sub-Article (2) of Article
102 and Article 191 of the Constitution, a proceeding under the Tenth
\
Schedule to the Constitution is one to decide whether a Member has become
,
c
disqualified to hold his position as a Member of the Parliament or of the
Assembly on the ground of defection. The Tenth Schedule cannot be read or
construed independent of Articles 102 and 191 of the Constitution and the
object of those Arti\:Ies. A defection is added as a disqualification and the Tenth
Schedule contains the provisions as to disqualification on the ground of
defection. A proceeding under the Tenth Schedule gets started before the
D Speaker only on a complaint being made that certain persons belonging to a
political party had incurred disqualification on the ground of defection. To
meet the daim so raised, the Members of the Parliament or Assembly against
whom the proceedings are initiated have the right to show that there has been
a split in the original political party and they form one-third of the members
\
E
of the legislature l!f that party, or that the party has merged with another
political party and hence paragraph 2 is not attracted. (Para 25] (612-D, E, F]
1.2. On the scheme of Articles 102 and 191 and the Tenth Schedule the
Speaker acts under the Tenth Schedule only on a claim of disqualification
being made befor~ him in terms of paragraph 2 of the Tenth Schedule, and
F
the determination of the question of split or merger cannot be divorced from
the motion before the Speaker seeking a disqualification of a member or
members concerned. Therefore, it cannot be said that under the Tenth
Schedule to the Constitution, the Speaker has an independent power to decide
that there has been a split or merger of a political party as contemplated by
paragraphs 3 and 4 of the Tenth Schedule to the Constitution. The power to
G recognise a separate group in Parliament or Assembly may rest with the
Speaker on the basis of the Rules of Business of the House. But that is
different from saying that the power is available to him 1H1der the Tenth
>.,,.,
Schedule to the Constitution independent of a claim being determined by him
that a member or a number of members had incurred disqualification by
H
defection. To that extent, the decision of the Speaker in the case on hand cannot
SRI RAJ END RA SINGH RANA v. SWAMI PRASAD MAURY A
595
be considered to be an order in terms of the Tenth Schedule to the Constitution. A
The Speaker has failed to decide the question, he was called upon to decide,
by postponing a decision thereon. (Paras 25-26] (612-G, H; 613-A, BJ
2.1. The Speaker has necessarily to decide the question of
disqualification as a Tribunal In the context of such a claim against a member
to disqualify him, that member, in addition to a plea that he had not voluntarily B
given up his membership of the Party or defied the whip issued to him, has
also the right.to show that there was a split in the original political party that
other legislators have also come out of the legislature party as a consequence
of that split, that they together constituted one-third of the total number of
legislators elected on the tickets of that party. He has also the right to take
up a plea that there has been a merger of his party with another party in C
terms of paragraph 4 of the Tenth Schedule. A claim under paragraph 3 as it
existed prior to its deletion or under paragraph 4 of the Tenth Schedule, are
really answers to a prayer for disqualifying the member from the legislature
on the ground of defection. In the instant case, there was no finding by the
Speaker that there was a split in the original political party, a condition for D
application of paragraph 3 of the Tenth Schedule. (Paras 19, 27(
(613-H; 614-A, B, C; 609-F]
Kihoto Hallahan v. Zachillhu & Ors., (1992] l SCR 686, relied on.
Ravi S. Naik v. Union of India, (1994] l SCR 754, referred to.
2.2. Under the Tenth Schedule, the Speaker is not expected to simply
entertain a claim under paragraphs 3 and 4 of the Schedule without first
acquiring jurisdiction to decide a question of disqualification in terms of
paragraph 6 of the Schedule. The Speaker cannot say that he will first decide
whether there has been a split or merger as an authority and thereafter decide
E
the question whether disqualification has been incurred by the members, by F
way of a judicial adjudication sitting as a Tribunal. It is part and parcel of his
jurisdiction as a Tribunal while considering a claim for disqualification of a
member or members to decide that question not only in the context of the plea
raised by the complainant but also in the context of the pleas raised by those
who are sought to be disqualified that they have not incurred disqualification G
in view of a split in the party or in view of a merger. The power if any, he may
otherwise exercise independently to recognise a group or a merger, cannot
be traced to the Tenth Schedule to the Constitution. The power under the Tenth
Schedule to do so accrues only when he is called upon to decide the question
referred to in paragraph 6 of that Schedule. (Paras 27-28]
(615-E, F; 614-D, E; 615-F] H
596
SUPREME COURT REPORTS
[2007] 2 S.C.R.
A
Prakash Singh Badal v. Union of India & Ors., A.I.R. (1987) Punjab &
tHaryana 263, approved.
2.3. In the instant case, the Speaker had a petition moved before him
for disqualification of 13 members of the B.S.P. When that application was
B
pending before him, certain members of B.S.P. had made a claim before him
that there has been a split in B.S.P. The Speaker, on the scheme of the Tenth
Schedule and the rules framed in that behalf, had to decide the application for
disqualification made and while deciding the same, had to decide whether in
view of paragraph 3 of the Tenth Schedule, the claim of disqualification has
/>
to be rejected. The Speaker had totally misdirected himself in purporting to
c answer the claim of the 37 M.L.As. that there has been a split in the party
even while leaving open the question of disqualification raised before him by
way of an application that was already pending before him. This failure on the
part of the Speaker to decide the application seeking a disqualification cannot
be said to be merely in the realm of procedure. It goes against the very
constitutional scheme of adjudication contemplated by the Tenth Schedule read
D in the context of Articles 102 and 191 of the Constitution. The same is a
jurisdictional illegality, an illegality that goes to the root of the so called
decision by the Speaker on the question of split put forward before him. The
,,
decision of the Speaker impugned is liable to be set aside in exercise of the
"
power of judicial review. [Para 29) [615-G; 616-A, B, C, DJ
E
2.4. There is another aspect. The Speaker, after he kept the
determination of the question of disqualification pending, passed an order that
the said petition will be dealt with after the High Court had taken a decision
on the writ petition pending before it and directed that the said petition be
taken up after the writ petition was disposed of. Then, suddenly, without any
F apparent reason, 'the Speaker took up that application even while the writ
petition was pending and dismissed the same on 7.9.2005 by purporting to
accept a so called preliminary objection raised by the 13 M.L.As. sought to
be disqualified, to the effect that his recognition of the split of the 37 M.LAs.
including themselves, has put an end to that application. This last order is
G
clearly inconsistent with the Speaker's earlier order dated 14.11.2003 and
still leaves open the question whether the petition seeking disqualification
should not have been decided first or at least simultaneously with the
application claiming recognition of a split. If the order recognising the split
"-·
goes, obviously this last order also cannot survive. It has perforce to
go. [Para 30) [616-E, F, G)
H
.,
SRI RAJENDRASINGH RANA v. SWAMI PRASAD MAURY A
597
3.1. It is not enough that a claim is made of a split in the original party, A
~
in addition to showing that one third of the members of the Legislature Party
have come out of the party, but it is necessary to prove it at least primafacie.
Those who have left the party, will have, prima facie, to show by relevant
materials th~t there has been a split in the original party. It cannot be said
that a split in the original political party need not separately be established if B
a split in the legislature party is shown. !Paras 37-38) 1620-C, D; 621-A)
3.2. Jn the instant case, it is clear that the Speaker, in the original order,
left the question of disqualification undecided. Thereby he has failed to exercise
t,
the jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such
a failure to exercise jurisdiction cannot be held to be covered by the shield of c
paragraph 6 of the Tenth Schedule. He has also proceeded to accept the case
of a split based merely on a claim in that behalf. He has entered no finding
whether a split in the original political party was prima facie proved or not.
The Speaker has committed an error that goes to the root of the matter or an
1
error that is so fundamental, that even under a limited judicial review the
order of the Speaker has to be interfered with. Thus, clearly there was an D
error which attracted the jurisdiction of the High Court in exercise of its
power of judicial review. Therefore, the majority of the High Court was right
in quashing the decisions of the Speaker. !Para 40-41) 1622-C, D, E, Fl
,I
Kihoto Hallahan v. Zachi/lhu & Ors., [1992) I SCR 686; Jagjit Singh
v. State of Haryana (2006) 13 SCALE 335 and Raja Ram Pal v. The Hon 'ble E
Speaker, Lok Sabha & Ors., JT (2007) 2 SC I, relied on.
3.3. Normally, this Court might not proceed to take a decision for the
first time when the authority concerned has not taken a decision in the eyes
of law and this Court would remit the matter to the authority for taking a
F
proper decision in accordance with law on the relevant aspects. But, keeping
in view the facts in the instant case, that the alleged act of disqualification of
the 13 MLAs took place on 27.8.2003 when they met the Governor and
requested him to call the leader of the opposition to form the Government, the
petition seeking disqualification of these 13 members based on that action of
theirs has been allowed to drag on till now, and the term of the Legislative G
Assembly that was constituted after the elections in February 2002, is coming
to an end on the expiry of five years, a remand of the proceeding to the Speaker
/ ..
or this Court affirming the order of remand passed by the High Court, would
mean that the proceeding itself may become infructuous. Therefore, this Court
has to decide the issue itself on the material available. !Para 44-45]
[624-8, C, D, G) H
-Y
'-
598
SUPREME COURT REPORTS
[2007] 2 S.C.R.
A
4.1. It may be true that collective dissent is not intended to be stifled by
the enactment pf sub-article (2) of Articles 102 and 191 and paragraph 2 of
r--
the Tenth Schedule. But at the same time, it is clear that the object is to
discourage defection which has assumed menacing proportions undermining
the very basis of democracy. Therefore, a purposive interpretation of paragraph
B
2 in juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called
for. (Para 331 (617-G]
4.2. The act of disqualification occurs on a member voluntarily giving
up his membership of a political party or at the point of defiance of the whip
issued to him. Therefore, the act that constitutes disqualification in terms of
>
c
paragraph 2 of the Tenth Schedule is the act of giving up his membership of
the party or defiance of the whip. Therefore, in the background of the object
sought to be achieved by the Fifty Second Amendment of the Constitution and
on a true understanding of paragraph 2 of the Tenth Schedule with reference
to its other paragraphs, the position that emerges is that the Speaker has to
~
decide the question of disqualification with reference to the date on which the
D member voluntarily gives up his membership or defies the whip. It is really a
l
decision ex post facto. The fact that in terms of paragraph 6 a decision on the
question has to .be taken by the Speaker or the Chairman, cannot lead to a
conclusion that the question has to be determined only with reference to the
date of the decision of the Speaker. [Para 341 [618-C, E, Fl
l(
E
5.1. The 37 MLAs including the 13 MLAs in question had to establish
a split in the original political party, the BSP, before they can get the
protection offered by paragraph 3. The first act on the part of the 13 MLAs
which is relevant is the giving of letters by them to the Governor on 27.8.2003.
Therein, there is no claim that there was a split in the Legislature Party on
F 26.8.2003 as was put forward in the representation on 6.9.2003 by 37
members. No material is produced either to show that a meeting of the
members of BSP was convened on 26.8.2003 or that a meeting took place in
which a split ill the original political party occurred. [Paras 46-471
1625-B, C, D, E]
G
5.2. The act of giving a letter requesting the Governor to call upon the
leader of the other side to form a Government, itself would, within the meaning
of paragraph 2 of the Tenth Schedule, amount to an act of voluntarily giving
up the membership of the party on whose ticket the said members had got
elected. Be it ·noted that on 26.8.2003, the leader of their party had
~
recommended to the Governor, a dissolution of the Assembly. Clearly, from
H the conduct of meeting the Governor accompanied by the General Secretary
SRI RAJENDRA SINGH RANA v. SW AMI PRASAD MAUR YA
599
-{
of the Samajwadi Party, the party in opposition and the submission of letters A
requesting the Governor to invite the leader of that opposition party to form
a Government as against the advise of the Chief Minister belonging to their
original party to dissolve the assembly, an irresistible inference arises that
the 13 members have clearly given up their membership of the BSP. No
further evidence or enquiry is needed to find that their action comes within B
paragraph 2(1)(a) of the Tenth Schedule. On the materials, the only possible
inference in the circumstances of the case, is that it has not been proved,
(
even primafacie, by the MLAs sought to be disqualified that there was any
split in the original political party on 26.8.2003 as claimed by them. The
necessary consequence would be that the 24 members, who later joined the
13, could not also establish a split in the original political party as having c
taken place on 26.8.2003. In fact even a split involving 37 MLAs on 26.8.2003
is not established. (Paras 48-49, 52) [626-A, B, C, D, E; 628-C, DI
5.3. Since it was necessary not only to show that 37 MLAs had separated
but it was also necessary to show that there was a split in the original political
party, the 13 MLAs sought to be disqualified failed to establish a defence or D
"\
answer to the charge of defection under paragraph 2 on the basis of paragraph
3 of the Tenth Schedule. The 13 MLAs, namely, respondent nos.
,.
2,3,4,5,6,9,10,14,16,19,20,21 who met the Governor on 27.8.2003, and the 37
MLA's in the writ petition filed by the B.S.P. leader, therefore, stand
disqualified from Uttar Pradesh Legislative Assembly in terms of Article E
191(2) of the Constitution read with paragraph 2 of the Tenth Schedule
thereto, with effect from 27.8.2003. (Para 53) [628-E, F, GJ
6. The Court must express its unhappiness at the tardy manner in which
a matter of some consequence and constitutional propriety was dealt with by
~
the High Court. More promptitude was expected of that court and it should
have ensured that the unfortunate happenings (from the point of view of just
F
and due administration of justice) were avoided. Though normally the Court
is reluctant to comment on the happenings in the High Court, it is constrained
to make the observations to emphasise the need to ensure that no room is
given for criticism of the manner of working of the institution. (Para 11 I
G
1604-E, F,GJ
~.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 765 of2007.
From the final Judgment and Order dated 28.2.2006 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
5085(M/B) of2003.
H
f
-y-·
600
SUPREME COURT REPORTS
[2007] 2 S.C.R.
A
WITH
+-
C.A. Nos. 766, 767, 768,769,770 and 771/2007
S.M.A. Kazmi, Genl., U.P., Ashok Desai, Dr. Rajeev Dhawan, Mukul
Rohtagi, Rakesh Dwivedi, U.U. Lalit, Harish N. Salve, S.C. Mishra, Altaf
B Ahmed, K.K. Lahiri, Ejaz Maqbool, Vlikash Singh, Taruna Singh, Abhijeet
Sinha, Vishwajit Singh, Niranjana Singh, Siddharth Sengar, Gaurav Bhatia,
Abhishek Chaudhary, Vimla Sinha, Aadarsh Upadhyay, Subramonium Prasad,
P.H. Parekh, Sameer Parekh, E.R. Kumar, Sonali Basu Parekh, Arun Francis,
)
kusti Chaturvedi (For P.H. Parekh & Co.), Shail Kumar Dwivedi, P.N. Gupta,
c
G.V. Rao, S.W.A. Qadri, Rajeev Dubey, Kam)endra Mishra, A. Raghunath,
Surya Kant, Lakshmi Raman Singh, Syed Ali Ahmad, Syed Tanweer Ahmad,
S.S. Bandyopadhyay, Mohd. Shah Nawaz Hasan, Shabana Saifi and Mohan
Pandey for the appearing parties.
The Judgment of the Court was delivered by
D
I
P.K. BALASUBRAMANY AN, J. I. Leave granted.
2. The elections for the constitution of the 14th .Legislative Assembly
of the State of Uttar Pradesh were held in February 2002. Since, none of the
_,.
political parties secured the requisite majority, a coalition Government was
E formed, headed by Ms. Mayawati, leader of the Bahujan Samaj Party (hereinafter
referred to as, 'B.S.P. '). B.S.P was admittedly a recognised national party. The
ministry was formed in May, 2002. On 25.8.2003, the cabinet is said to have
taken a unanimoys decision for recommending the dissolution of the Assembly.
Based on it, on 26.8.2003, Ms. Mayawati submitted the resignation of her
cabinet. Apparently, after the cabinet decision to recommend the dissolution
F of the Assembly and before Ms. Mayawati cabinet actually resigned, the
leader of the Samajwadi Party staked his claim before the Governor for forming
a Government. On 27.8.2003, 13 Members of the Legislative Assembly
(hereinafter referred to as, 'M.L.As.') elected to the Assembly on tickets of
B.S.P., met the Governor and requested him to invite the leader of the Samajwadi
G Party to form the Government. Originally, 8 M.L.As. had met the Governor and
5 others joined them later in the day, making up the 13.
3. The Governor did not accept the recommendation ofMayawati cabinet
)....._
for dissolution of the Assembly. On 29.8.2003, the Governor invited the leader
of the Samajwadi Party, Mr. Mulayam Singh Yadav to form the Government
H and gave him a time of two weeks to prove his majority in the Assembly. On
~
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SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURY A [BALASUBRAMANYAN,J.] 60 J
4.9.2003, Mr. Swami Prasad Maurya, leader of the Legislature B.S.P filed a A
petition before the Speaker in terms of Article 191 read with the Tenth
Schedule to the Constitution oflndia, praying that the 13 B.S.P. M.L.As. who
had proclaimed support to Mulayam Singh Yadav before the Governor on
27.8.2003, be disqualified in terms of paragraph 2 of the Tenth Schedule to the
Constitution on the basis that they had voluntarily given up their membership
ofB.S.P., their original political party. On 05.09.2003, a caveat was also filed B
on behalf of the B.S.P. before the Speaker of the Legislative Assembly
requesting the Speaker to hear the representative of B.S.P. in case any claim
of split is made by the members who had left the Party. On 06.09.2003, a
request was made by 37 M.L.As., said to be on behalf of 40 M.L.As. elected
on B.S.P. tickets, requesting the Speaker to recognise a split in B.S.P. on the C
basis that one third of the Members of the B.S.P. legislature party consisting
of I 09 legislators, had in a body separated from the Party pursuant to a
meeting held in the M.L.A.'s hostel, Darulshafa, Lucknow on 26.8.2003. The
Speaker took up the said application for recognition of a split, the same
evening. He verified that the 37 Members who had signed the application
presented to him had in fact signed it since they were physically present D
before him. Overruling the objections of Maurya, the leader of the legislature
B.S.P., the Speaker passed an order accepting the split in B.S.P. on the
arithmetic that 37 out of 109 comprises one third of the Members of the
legislature Party. This group came to be known as the Lok Tantrik Bahujan
Dal. But, the said Dal was short lived. For, the Speaker, a little later, on 6.9.2003 E
itself, accepted that the said Dal had merged with the Samajwadi Party. It is
relevant to note that in the order dated 6.9.2003, the Speaker did not decide
the application made by B.S.P. seeking disqualification of 13 of its M.L.As.
who were part of the 37 that appeared before the Speaker and postponed the
decision on that application. It appears that on 8.9.2003, three more M.L.As.
appeared before the Speaker stating that they supported the 37 M.L.As. who F
had appeare4 before him on 6.9.2003 and were part of that group. The Speaker
accepted their claim as well.
4. On 29.9.2003, Writ Petition No. 5085 of 2003 was filed in the High
Court of Judicature at Allahabad before the Lucknow Bench challenging the G
said order of the Speaker. On I.I 0.2003, it came up before a Division Bench
of the High Court, and it is seen from the Order Sheet maintained by the High
Court that the Writ Petition was directed to be listed on 8.10.2003 for further
hearing. It was adjourned to 13.10.2003 and then again to 22. l 0.2003 and to
29.10.2003 and further to 5.11.2003. It is recorded in the Order Sheet that on
5.11.2003, learned counsel for the writ petitioner was heard in detail. No order H
'\
602
SUPREME COURT REPORTS
(2007] 2 S.C.R.
A was passed, but the matter was adjourned to the next day at the request of
counsel, who was apparently representing the Advocate General of the State.
From 6.11.2003, the matter was adjourned to 10.11.2003 and on the request of
the learned Advocate General, it was directed to be listed on 14.11.2003. The
same day, the Speaker before whom the petition filed by the writ petitioner
B Maurya seeking disqualification of 13 of the members of the B.S.P. was
pending, after noticing what he had done earlier on 6.9.2003 and 8.9.2003,
passed an order adjourning the petition seeking disqualification, on the ground
that it woul~ be in the interests of justice to await the decision of the High
·rCourt in the pending Writ Petition since the decision therein on some of the
)
issues, would be relevant for his consideration. It was therefore ordered that
C the petition for disqualification may be placed before him for disposal and
necessary action after the High Court had decided the Writ Petition.
5. In the High Court, the Writ Petition had a chequered career. On
14.12.2003, when it came up, it was directed to be listed the next week before
the appropriate Bench. On 16.4.2004, it was directed to be put up on 22.4.2004.
D On 22.4.2004, it was dismissed for default with an observation that neither any
counsel on behalf of the writ petitioner nor on behalf of the Speaker was
present. It may be noted that on 5.11.2003, the High Court had recorded that
it had heard counsel for the writ petitioner in full and the adjournment for
further hearing was at the behest of the Advocate General. Even then, on
E 22.4.2004, the High Court chose to dismiss the Writ Petition for default on the
ground that coun.sel on both sides were not present. An application for
restoration was filed on 27.4.2004 and this application was kept pending for
about 8 months until on 20.12.2004, an order was passed recalling the order
dated 22.4.2004 dis~issing the Writ Petition for default and restoring it to its
original number with a further direction to list the Writ Petition before the
F appropriate Bench on 4.1.2005. On 4.1.2005, the Writ Petition was adjourned
at the request of the Advocate General to the next day. On 5.1.2005, it was
noticed by the Bench that the matter appeared to have been heard in detail
at the admission stage and the Writ Petition had neither been admitted nor
any notice ordered to the respondents and counsel for the writ petitioner was
G again heard on the question of admission and the application for interim relief
he had filed and it was recorded that he had concluded his arguments with
the further direction to put up the Writ Petition the next day. On 6.1.2005, it
was recorded that counsel for the writ petitioner did not press for interim relief
at that stage and hence the application for interim relief was being rejected.
H
6. On 6.1.2005, the Writ Petition was admitted after hearing counsel for
SRI RAJENDRA SINGH RANA v. SW AMI PRASAD MAURY A (BALASUBRAMANY AN, J .] 603
...\
the writ petitioner and some counsel who appeared for the respondents. A
Notices were ordered to be issued to the opposite parties, the group of
M.L.As. who had moved the Speaker for recognition of a split. After some
further postings, on 18.2.2005, orders were passed regarding service of notice
and the Writ Petition was directed to be posted for hearing on I 0.3.2005. On
I 0.3.2005, finding that there was some attempt at evasion of notices, the court B
ordered substituted service of notices and directed the listing of the Writ
Petition on 11.4.2005. On 11.4.2005, service of notice was declared sufficient
#(
and the matter was directed to be posted on 2.5.2005 for hearing. After a
number of adjournments mainly at the instance of the respondents in the Writ
Petition, arguments were commenced. On 12.5.2005, counsel for the writ
petitioner concluded his arguments and the case was further adjourned to c
25.5.2005 for further hearing after taking certain counter affidavits on record.
Ultimately, the argument of one of the counsel for the respondents was
started and the matter was adjourned to 6. 7 .2005 for completion of his
arguments and for arguments by other counsel for the respondents in the
Writ Petition.
D
~
7. Meanwhile, on 7.9.2005, the Speaker passed an order rejecting the
petition filed by Maurya for disqualification of 13 M.L.As. ofB.S.P. It may be
noted that the Speaker had earlier adjourned that application for being taken
I
up after the Writ Petition was decided. Meanwhile, the arguments went on in
the High Court and the Writ Petition was directed to be put up on 17 .8 .2005
for further arguments. The matter was adjourned to the next day and again E
to subsequent dates.
8. On 8.9.2005, an application was made on behalf of the respondents
seeking dismissal of the Writ Petition in view of the order of the Speaker dated
·{
7.9.2005 dismissing the application seeking disqualification of 13 M.L.As. filed F
by the writ petitioner. The said application was dismissed the same day. On
9.9.2005, arguments were heard and the matter was adjourned for further
hearing.
9. On 21.10.2005, an application was made on behalf of the writ petitioner
praying for an amendment of the Writ Petition. It was directed to be listed G
granting time to the respondents in the Writ Petition to file objections. On
22.11.2005, the Order Sheet records an order by one of the judges as follows:
"The matter was listed today only for consideration and disposal of
the amendment application together with application for further hearing
H
and by 4.00 PM arguments with respect to amendment application
604
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B
SUPREME COURT REPORTS
[2007] 2 S.C.R.
..
could be concluded. As indicated in the order passed on the application
brot~er M.A. Khan (J) took out a typed and signed 'order' rejecting
the application for amendment. Like previous order, brother Hon 'ble
M.A. Khan again took out a duly typed and signed judgment/ his
opinion and directed the bench Secretary to place the same on record
as his 'judgment" in the main writ petition. The draft of the said
judgment was also not circulated to me nor was I ever been consulted
by him. It is further pointed out that brother Hon'ble M.A. Khan (J)
did not indicate at any time that he had already written out the
judgment. Further at no point of time, I had indicated to brother M.A.
Khan.' (J) that the judgment in the writ petition may be prepared by
C
him. It goes without saying that neither the orders passed on the
application nor the so called judgment on the merits of the writ
petition have been dictated in the open court by brother Hon 'ble
M.A .. ~han(J)."
I
I 0. Apparently, in view of these happenings, the learned Chief Justice
D constituted a Full Bench for hearing the Writ Petition. The amendment prayed
for was allowed and the Writ Petition ultimately heard finally and disposed
of by the judgment under appeal. As per the judgment under appeal, the Writ
Petition was dismissed by the learned Chief Justice while the other two
learned Judges quashed the orders of the Speaker and directed the Speaker
E to reconsid~r the matter with particular reference to the petition for
disqualification of 13 M.L.As. filed by the writ petitioner and pass appropriate
orders. Feeling aggrieved, these appeals have been filed.
I I. Whatever may be our ultimate decision on the merits of the case,
we must express our unhappiness at the tardy manrier in which a matter of
F some consequence and constitutional· propriety was dealt with by the High
Court. More promptitude was expected of that court and it should have
ensured that th~ unfortunates happenings (from the point of view of just and
due administration of justice) were avoided. Though we are normally reluctant
to comment on the happenings in the High Court, we are constrained to make
the above observations to emphasis the need to ensure that no room is given
G for criticism of the manner of working of the institution.
12. The respondents in the Writ Petition, the M.L.As. constituting 37
B.S.P. members who left the party, are the appellants in all the appeals except
the appeal arising out of Special Leave Petition (Civil) No. 6323 of2006 filed
,
H by the writ petitioner Maurya. Whereas, the respondents in the Writ Petition
\ ')-·
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURY A [BALASUBRAMANYAN, J.] 605
challenge the decision of the majority of the Bench remitting the matter to the A
Speaker, the writ petitioner, in his appeal challenges the order ofremand made
by the majority on a plea that on the pleadings and the materials available,
the High Court ought to have straightaway allowed the petition filed by the
writ petitioner for disqualification of the 13 M.L.As. According to him, a
remand was unnecessary and considering the circumstances, a final order B
ought to have been passed by the High Court.
13. Article 191 of the Constitution of India deals with the disqualification
J(._
for membership of legislative assemblies just like Article I 02 deals with
disqualification for membership to the Houses of Parliament. Article 102 and
Article 191 came to be amended by the Constitution (Fifty-second Amendment)
Act, 1985 with effect from 1.3.1985 providing that a person shall be disqualified c
for being a member of either Houses of Parliament or of Legislative Assembly
or Legislative Council of a State if he is so disqualified under the Tenth
Schedule to the Constitution of India. The Tenth Schedule was also added
containing provisions as to disqualification on ground of defection. The
constitutional validity of this amendment was challenged before this Court in D
'I
Khoto Hollohan v. Zachi/lhu and Ors., [1992] I S.C.R. 686. This Court upheld
the validity of the amendment subject to the finding that paragraph 7 of the
Tenth Schedule to the Constitution of India required ratification in terms of
Article 368(2) of the Constitution of India and it had not come into force, so
that there was no need to pronounce on the validity of paragraph 7 to the E
extent it precluded a judicial review of the decision of the Speaker. But it held
that judicial review could not be kept out, though such review might not be
of a wide nature.