Appeal No 1094 of 1992
WITH Civil Appeal No1095 of 1992
AND Civil Appeal No 1096 of 1992
From the Judgment and Order dated 4292  24292 of the Bombay High Court in WP Nos11 8  70 of 1992
RK Garg Ram Jethmalani VA BobdeHarish N Salve KJ John Ms Deepa Dixit Rakesh Gosain Ms Rani Jethmalani PK Dev and Ms Shanta Ramchand for the Appellants
Ashok Desai FS Nariman RF Nariman PH Parekh Sunil Dogra JD Dwarka Das and SC Sharma for the Respondents
The Judgement of the Court was delivered by 827 VERMA J
These appeals by special leave arise from writ petition Nos11 of 19928 of 1992 and 70 of 1992 all dismissed by the Bombay High Court at the Goa Bench merely on the ground of laches and they involve for decision the common question relating to the power of review if any of the Speaker to review his decision on the question of disqualification of a Member of the House rendered under the Tenth Schedule to the Constitution
In those writ petitions the orders passed by the Speaker in purported exercise of the power of review setting aside the earlier orders of disqualification of certain Members made on merits by the Speaker were challenged on the ground that the Speaker has no such power of review
The High Court took the view that the writ petitions were filed after considerable delay and therefore upholding the preliminary objection had to be dismissed merely
on the ground of laches and therefore merits of the contention that the Speaker had no such power of review was not considered
The main questions which arise for decision in these appeals are therefore two namely 1LACHES Are the impugned orders of the High Court dismissing the writ petitions merely on the ground of laches susceptible to interference under Article 136 of the Constitution in the present case and 2POWER OF REVIEW If so does the Speaker acting as the authority under the Tenth Schedule of the Constitution have no power of review so that any order made by him in purported exercise of the power of review is a nullity The further question of the consequence and nature of relief to be granted would arise only if these questions are answered in favour of the appellants
Ravi section Naik Ratnakar M Chopdekar and Sanjay Bandekar were duly elected Members of the Goa Legislative Assembly in the elections held in November 1989
On 2511991 Ravi section Naik assumed the office of the Chief Minister of the State of Goa and he formed his Council of Ministers which included Chopdekar and Bandekar as Ministers
On the same day ie on 2511991 Dr Kashinath Jalmi also a Member of the Legislative Assembly presented a petition to the Speaker Surendra V Sirsat seeking disqualification of Ravi section Naik as a Member of the Legis 828 lative Assembly on the ground that he had voluntarily given up the Membership of his political party
On 1621991 the Speaker Surendra V Sirsat passed an order under para 6 of the Tenth Schedule to the Constitution disqualifying Ravi Naik on the ground of defection
On 1621991 Ravi Naik filed writ petition No48 of 1991 at the Goa Bench of the Bombay High Court challenging the order of his disqualification made by the Speaker under the Tenth Schedule to the Constitution
On 182 1991 the High Court passed an interim order in that writ petition staying operation
of the order of disqualification made by the Speaker
During the pendency of this writ petition on 2721991 Simon Peter D Souza was elected Deputy Speaker of the Goa Legislative Assembly on 431991 Surendra V Sirsat was removed from the office of Speaker and the Deputy Speaker Simon Peter D Souza began functioning as the Speaker in place of Surendra V Sirsat
The same day ie on 431991 Ravi section Naik made an application to Simon Peter D Souza the Deputy Speaker functioning as the Speaker of the Goa Legislative Assembly for review of the order dated 1521991 of his disqualification made by the Speaker Surendra V Sirsat under the Tenth Schedule
On 831991 the Acting Speaker Simon Peter D Souza made an order in purported exercise of the power of the review under the Tenth Schedule setting aside the order dated 1521991 made by the Speaker Surendra V Sirsat disqualifying Ravi section Naik as a Member of the Goa Legislative Assembly
Thereafter Writ Petition No48 1991 filed by Ravi Naik challenging the order of the his disqualification made by the Speaker on 1521991 was dismissed as not pressed by him on 2241991
On 811992 Writ Petition No11 of 1992 was filed by Dr Kashinath Jalmi and Ramakant Khalap challenging the order of review dated 831991 passed by the Acting Speaker inter alia on the ground that the Speaker did not have any power to review the earlier order of disqualification made under the Tenth Schedule to the Constitution of India
The High Court by the order dated 421992 upheld the preliminary objection of Ravi section Naik that the writ it petition filed ten months after the date of the impugned order was liable to be dismissed at the admission stage on the ground of laches
This order dismissing the writ petition for this reason alone is challenged in Civil Appeal No 1094 of 1992
After the dismissal of writ petition No11 of 1992 another Member of the Goa Assembly Churchill Alemao filed writ petition No70 of 1992 also challenging the order of review dated 831991 made by the Acting 829 Speaker setting aside the earlier order dated 1521991 made by the Speaker disqualifying Ravi Naik on similar grounds
The High Court dismissed writ petition No70 of 1992 also at the admission stage for the same reason on the ground of laches
Civil Appeal No1096 of 1992 by Churchill Alemao is against the order dated 2421992 dismissing writ petition No70 of 1992
On 10121990 Ramakant D Khalap applied to the Speaker Surendra V Sirsat seeking disqualification of Sanjay Bandekar and Ratnakar Chopdekar as Members of the Goa Legislative Assembly for the defection under the Tenth Schedule
On 11121990 the Speaker served notices on these Member
On 13121990 Bandekar and Choopdekar filed writ petition No321 of 1990 at the Goa Bench of the Bombay High Court challenging the show cause notices issued to them by the Speaker
On the same day ie on 13121990 the Speaker Surendra V Sirsat made the orders disqualifying Bandekar and Chopdekar as Members of the Assembly under the Tenth Schedule
On 14121990
Writ Petition No321 of 1990 was amended to challenge the orders of disqualification dated 13121990 made by the Speaker against Bandekar and Chopdekar
The Writ Petition was admitted by the High Court and an interim order made staying the orders of disqualification dated 13121990 made by the Speaker
Unlike the writ petition No48 of 1991 by Ravi Naik which was dismissed as not pressed on 2241991 after the order of review made by the Deputy Speaker writ petition No321 of 1990 by Bandekar and Chopdekar is still pending in the High Court with the interim order made therein subsisting
In the meantime in a manner similar to that in the case of Ravi Naik the Deputy Speaker functioning as the Speaker on applications made to him for the purpose passed orders on 731991 purporting to exercise the power of review whereby the orders dated 13121990 made by the Speaker disqualifying Bandekar and Chopdekar under the Tenth Schedule have been set aside
This led to the filing of writ petition No 8 of 1992 by Ramakant D Khalap on 711992 at the Goa Bench of the Bombay High Court challenging the orders of the review dated 731991 passed by the Acting Speaker
This writ petition also has been similarly dismissed merely on the ground of laches on 421992
Civil Appeal No1095 of 1992 has therefore been filed against dismissal of writ petition No8 of 1992
830 This is how the same questions relating to laches justifying dismissal of these writ petitions and the power of review if any of the Speaker under the Tenth Schedule arise for decision in these appeals
The rival contentions may now be mentioned
Shri Ram Jethmalani for the appellant in CA No1094 of 1992 Shri Harish Salve for the appellant in CA No1095 of 1992 and Shri RK Garg for the appellant in CA No1096 of 1992 advanced substantially similar arguments to contend that dismissal of the writ petitions by the High Court on the ground of laches is insupportable in the present context where challenge to the order of review made by the Speaker under the Tenth Schedule is on the ground of nullity since the Speaker has no power of review under Tenth Schedule and that the order of review being a nullity must be so declared
In reply Shri FS Nariman for respondent Ravi section Naik in Civil Appeal Nos 1094 and 1096 of 1992 and Shri Ashok Desai for respondents Bandekar and Chopdekar in Civil Appeal No1095 of 1992 strenuously urged that the exercise of power under Article 226 of the Constitution being discre tionary the refusal to exercise that power at the instance of the writ petitioners was a proper exercise of the discretion which does not call for any interference by this court in exercise of its power under Article 136 of the Constitution
Both the learned counsel in their reply further submitted that by the very nature of the high office of the Speaker and the finality attaching to the order made by the Speaker under para 6 of the Tenth Schedule the power of the review inheres in the Speaker for preventing miscarriage of justice in situations when the Speaker himself is of the view that continuance of his earlier order of disqualification would perpetuate injustice
It was further submitted by them in the alternative that in view of the limited scope of judicial review of the Speaker s order of disqualification made under para 6 of the Tenth Schedule as held in the majority opinion in Kihoto Hollohan vs Zachillhu and Ors 1992 Supp 2 SCC 651 it is implicit that at least a limited power of review inheres in the Speaker to correct palpable errors outside the scope of the limited judicial review available against the order of disqualification made by the speaker under the Tenth Schedule
It was urged by them that the alleged infirmities in the orders of disqualification made in the present case by the Speaker fell within at least this limited power of review which inheres in the Speaker
Shri Nariman as well as Shri Desai strongly relied on the majority opinion in Kihoto Hollohan to support these submissions
831 The last alternative submission of Shri Nariman was that in case there is no power of review in the Speaker under the Tenth Schedule as a result of which the orders made by the Acting Speaker in purported exercise of that power have to be declared nullity and ignored then writ petition No48 of 1991 by Ravi section Naik being dismissed as not pressed on 2241991 because the order of his disqualification had been set aside by the order of review must be revived along with the interim stay granted therein to enable Ravi section Naik to pursue the remedy which he had invoked to challenge the order of his disqualification which is open to judicial review
This submission of last resort made by Shri Nariman was strongly opposed by Shri
RK Garg appearing for the appellant Church Alemao
On the other hand Shri Ram Jethmalani appearing for the appellants in CA No1094 not only did not oppose such a direction being given but in his opening address itself suggested this as the equitable course to adopt
But for the stand taken on this aspect there was no difference in the submissions of Shri Garg and Shri Jethmalani
Both sides attempted to refer to the facts leading to the making of the orders of disqualification of the Members and the merits thereof However we do not propose to advert to them as we had indicated to the learned counsel at the hearing since those aspects will have to be gone into  in the first instance by the High Court on the view we are taking in these appeals and therefore we would like to avoid the likelihood of any possible prejudice to either side resulting from any reference made by us to the same
Accordingly we are confining ourselves only to the facts and the arguments relating to the aforesaid two questions which alone arise before us
We may add that for the purpose of these appeals it has been assumed by both sides that the Deputy Speaker functioning as the Speaker would have the powers of the Speaker under the Tenth Schedule including that of review if any
The further question whether the Deputy Speaker who discharging the functions of the Speaker has all the powers of the Speaker under the Tenth Schedule is therefore undisputed for the present purpose
We shall now consider the aforesaid two main questions which arise for decision in the present case
Any further question arising for decision in case both these questions are answered in favour of the appellants will be considered thereafter
832 LACHES The High Court has taken the view that the impugned orders of review having been made by the Acting Speaker on 7th and 8th March 1991 the writ petitions challenging them filed on 711992 811992 and 1021992 were highly belated and therefore liable to be dismissed merely on the ground of laches
It is for this reason that they were dismissed at the admission stage itself sustaining the preliminary objection taken on this ground by Ravi section Naik Chopdekar and Bandekar in whose favour the orders of review had been made
The High Court has referred to certain decisions of this Court for applying the doctrine of laches and declined to consider the merits of the main point raised in the writ petitions that the Speaker does not have any power of review acting under the Tenth Schedule
The High Court has also held as untenable the explanation given by the writ petitioners that uncertainty of the law settled only by the decision of this Court in Kihoto Hollohan supra rendered on 12th November 1991 was the reason for not filing those writ petitions earlier
Learned counsel for the appellants have assailed application of the doctrine of laches in the present situation and also contended that if any explanation was needed for the intervening period pendency of the question of constitutional validity of Tenth Schedule itself in this Court was sufficient to explain the period up to the date of the decision and the writ petitions were filed soon thereafter
It was also submitted by learned counsel for the appellants that the continuance in office of disqualified persons even now provides recurring cause of action since the continuance in office without lawful authority of these persons one of whom is the Chief Minister of the State of Goa is against public policy and good administration
It was submitted the Court cannot decline to examine the validity of the authority under which they continue to hold office
On this basis it was urged that the mere delay if any in challenging the legality of the authority under which these three persons continue to hold office after being disqualified as Members of the Assembly could not be a valid justification for the High Court to refuse to examine the main question of existence of power of review in the Speaker acting under the Tenth Schedule since the discretion of the High Court under Article 226 of the Constitution must be exercised judicially so as not to permit perpetuation of an illegality
Shri Jethmalani also submitted that the doctrine of laches does not apply where declaration sought is of nullity in order to prevent its continuing operation and laches is not relevant in the domain of public 833 law relating to public office where the purpose is to prevent an usurper from continuing to hold a public office
Shri Harish Salve adopted these arguments and further submitted that Dr Kashinath Jalmi and Ramakant Khalap had consistently taken the stand that the Speaker s order of disqualification is final and not open to review by anyone
He submitted that for this reason no prevarication in their stand can be attributed to either of them as has been done against Churchill Alemao by the learned counsel for the respondents for his support to Ravi Naik during the intervening period
It was further urged by the learned counsel for the appellants that the motive and conduct of the writ petitioners in such matters is not decisive or fatal to the enquiry claimed in the writ petition in as much as the relief claimed in the writ petition was not for personal benefit of the writ petitioner but for larger public interest and good governance of the State of Goa by persons holding public offices including that of the Chief Minister only by lawful authority
Both Shri FS Nariman and Shri Ashok Desai supported the Judgment of the High Court and strenuously urged that the High Court in exercise of its discretionary power under Article 226 of the Constitution was justified in refusing to exercise that power at the behest of the writ petitioners who were disentitled to grant of the relief on account of their conduct and motive for filing the writ petition
It was submitted by them that the writ petitioners namely Churchill Alemao Dr Kashinath Jalmi and Ramakant Khalap are all persons who at different times were associated with Ravi SNaik as Chief Minister and were also obtaining benefit from him which conduct coupled with their motive of getting more political power to themselves disentitled them from claiming the relief
Shri Nariman submitted that the doctrine of laches applies equally to a writ of quo warranto as it does to a writ of certiorari
It was also submitted by learned counsel for the respondents that the explanation given for the delay in filing the writ petitions challenging the orders of review made by the Acting Speaker is facile and untenable It was submitted that notwithstanding the pendency of the question of the validity of the Tenth Schedule in this Court writ petitions were being filed challenging the orders made by the Speakers under the Tenth Schedule
It was submitted that all the writ petitioners in view of their status in life were fully aware that the Speaker s order of review could be challenged by a writ petition even before the decision rendered by this Court on 12th November 1991 834 in Kihota Hollohan
The main thrust of the argument of the counsel for the respondents was that in these circumstances the High Court was justified in dismissing the writ petitions at the threshold in exercise of its discretionary power under Article 226 of the Constitution and therefore the power under Article 136 of the Constitution also being discretionary this Court would be justified in refusing to interfere with the discretion so exercised by the High Court
Having given our anxious consideration to the forceful submissions of learned counsel for the both sides we find ourselves unable to sustain the judgment of the High Court that the writ petitions were liable to be dismissed merely on the ground of laches
One of the submissions of Shri Nariman was that even though there is no period of limitation prescribed by statute for filing a writ petition yet in a case like the present the apt analogy is of an election petition calling in question an election which is required to be filed within 45 days from the date of election of the returned candidate as provided in Section 811 of the Representation of the People Act 1951 to indicate that unless such a challenge is made promptly the courts would refuse to examine such a question after the lapse of a reasonable period
On this basis he argued that a writ petition filed after ten months of the date of the order of review made by the Speaker acting under the Tenth Schedule must be treated as unduly delayed and is liable to rejection on the ground of laches as has been done by the High Court in the present case
We are unable to accept this part of the submission since it is not an apt analogy
The remedy of an election petition is statutory governed by the limitation prescribed therein unlike the remedy under Article 226 of the Constitution
That apart the analogy which is more apposite is the decision on questions as to the disqualification of Members in accordance with Article 103 in the case of a Member of Parliament or Article 192 in the case of a Member of a House of a Legislature of a State
For raising a dispute giving rise to any question whether a Member of a House has become subject to any of the disqualification mentioned in clause 1 of Article 102 or 191 as the case may be there is no prescribed limitation and so also for challenging the decision rendered under Article 103 or 192 by a writ petition
The question of the disqualification of a Member on the ground of defection and the Speaker s order thereon rendered under the 835 Tenth Schedule is of a similar nature and not based on the result of an election which can be challenged only by an election petition in accordance with the provisions of Representation of the People Act 1951
The decision by a constitution bench in Brundaban Nayak vs Election Commission of India and another  indicates the significance of deciding the question of disqualification of a Member as soon as it arises even at the instance of a citizen since the whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status and if any member forfeits that status by reason of a subsequent disqualification it is in public interest   that the matter was decided
There is no indication in Brundaban Nayak that the delay in raising the question of disqualification provides justification for refusing to decide the same and the emphasis really is on a prompt decision by the competent authority on the question being raised since it is not the interest of the constituency which such a Member represents to delay the decision
This decision is an indication that the authority competent to decide the question of disqualification must act promptly in deciding the same once it is raised even by a citizen in order to prevent a disqualified Member from representing the constituency after incurring a disqualification subsequent to his election so long as the question remains a live issue during the tenure of the Member
This aspect is significant for dealing with the question of laches in the present case
In order to justify dismissal of the writ petitions for laches Shri Nariman placed reliance on certain decisions some of which have been referred by the High Court
Shri Nariman argued that the doctrine of laches applies as much to the writ of quo warranto as it does to a writ of certiorari and that the oblique motives of the petitioner together with his conduct may disentitled him to grant of the relief claimed by such a petition
We now refer to some of these decisions
The basic decision for submission on the doctrine of laches relied on is The Lindsay Petroleum Company vs Prosper Armstrong Hurd Abram Farewell and John Kemp which has been followed in the decisions of this Court in The Moon Mills Ltd vs MR Meher President Industrial Court Bombay and Ors AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation vs Shri Balwant Regular Motor Service 836 Amravati  Ors  In The Moon Mills Ltd a writ of certiorari was sought to challenge a decision affecting the rights of the Petitioner wherein the question arose whether the petitioner could be denied the relief on the ground of acquiescence or laches
In that context it was observed that the issue of a writ of certiorari is a matter of sound discretion and that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances causes prejudice to the adverse party  It was observed that the exercise of discretion under Article 226 to issue a writ of certiorari is based on the principle to a great extent though not identical with similar to the exercise of discretion in the Court of Chancery  For this principle involving the doctrine of laches in courts of equity reference was made to the observation of Sir Barnes Peacock in Lindsay Petroleum Co The decision was followed in and the principle reitered in Maharashtra State Road Transport Corporation again in the context of the discretion under article 226 of the Constitution to issue a Wit of certiorari
Like all equitable principles the doctrine of laches applies where it would be unjust to give a remedy to the petitioner who is disentitled to grant of the same by his conduct or any other relevant circumstances including the creation of third party rights during the intervening period which are attributable to the laches of the petitioner
Strong reliance was placed on the decision in Ms Tilokchand Motichand  Ors
vs HB Munshi  Anr  wherein relief under Article 32 of the Constitution was refused on the ground of delay to contend that if delay can be fatal under Article 32 itself a fundamental right it is more so in a petition under Article 226 of the Constitution wherein grant of the relief is discretionary
The decision of this Court in Shri Vallabh Glass Works Ltd and Anr
vs Union of India and Ors
 and Ms Delhi Rohtas Light Railway Company Lid vs District Board Bhojpur and Ors were also cited on the point
In Shri Vallabh Glass Words Ltd a writ petition by way of alternative remedy was filed after expiry of statutory period of limitation prescribed for filling suit for the same claim and yet that alone was not held to be fatal taking the view that reasonableness of delay in filing the writ petition is to be assessed having regard to the facts and circumstances of the case since grant of the relief under Article 226 of the Constitution is a matter of sound judicial discretion and governed by the doctrine of laches
837 In Ms Dehri Rohtas Light Railway Company Limited Tilokchand Motichand s case was distinguished and it was indicated that the test is not to physical running of time  and the real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created  It is significant that all these decisions relate to enforcement of personal rights wherein a writ of certiorari was claimed for quashing some decision adverse to the petitioner and neither of them related to assertion of a public right in the nature of a class action
In the present case the claim is for the issue of a writ of quo warranto on the ground that Ravi section Naik Chopdekar and Bandekar are holding public office having suffered disqualification as Member of the Assembly subsequent to their election and of them Ravi section Naik continues to hold the high public office of Chief Minister of Goa
The relief claimed in the present case is not the conferment of a personal benefit to the petitioners but for cessation of the usurpation of public offices held by these persons if the contention of the petitioners be right that orders of review setting aside the earlier orders of disqualification made by the Speaker under the Tenth Schedule are nullity The decision of the Privy Council in the Lindsay Petroleum Company was followed by the House of Lords in Emile Erlanger and Ors
vs The New Sombrero Phosphate Company and Ors 1878 3 Appeal Cases 1218 wherein reliance on the doctrine of laches by Courts of Equity for refusing relief where it would be practically unjust to grant the same was reiterated
It was also reiterated that two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval which might affect the justice of the cause
Once again this principle was reiterated by the Privy Council in Anachuna Nwakobi The Osha of Obosi and Ors
vs Engene Nzekwu and Anr quoting the same passage from The Lindsay Petroleum Company
None of these cases relate to the writ of quo warranto and in them the relief claimed was only for the personal benefit of the claimant
We are not persuaded to hold that on the basis of these decisions some of which are referred by the High Court the writ petitions in the present case could have been dismissed merely on the ground of laches of the petitioners
838 We would now refer to the contention of Shri Nariman that this principle attracting the doctrine of laches equally applies to a writ of Quo Warranto sought in the present case
For this purpose Shri Nariman placed reliance on the decision in Everett vs Griffiths 1924 1 KB 941 at 959 in addition to Halsbury s Law of England Fourth Edition Reissue Volume 16 Para 926
In Halsbury s Law of England the statement of law is based primarily on the decision of the Privy Council in The Lindsay Petroleum Company and those following it
We have already indicated the inapplicability of those decisions in the present case
At the same place one of the decisions referred to in foot note 3 of para 926 is AG vs Proprietors of the Bradford Canal 1866 LR 2 Equity Cases 71 for the proposition that Laches is not imputable to the Crown or to the Attorney General suing on behalf of the public  In this decision distinction was drawn between the claim on behalf of the public and that by an individual plaintiff indicating that even though delay or laches may be attributable to an individual plaintiff it may not be so to an action brought on behalf of the public
This is more so when the grievance made is that a person continues to hold a public office without the authority of law
Shri Nariman laid great stress on Everett vs Griffuths 1924 1 KB 941 at page 959 where it is stated It is plain however that in quo warranto proceedings the Court can and will inquire into the conduct and motives of the relator
 Reference is made to a passage from Halsbury s Laws of England and some earlier decisions which have been referred for treating the point as well settled
These observations were made after examining the claim on merits and in view of the fact that the plaintiff was known for his frequent persistent and fruitless litigation proceedings having commenced primarily with the motive of resentment
In spite of these strong observations in the judgment about the conduct and motive of the plaintiff the court did not refuse to go into the points raised for that reason alone
In our opinion this decision can not persuade us to hold that the dismissal at the admission stage of the present petitions by the High Court on the ground merely of laches can be sustained when the alleged usurpation of the public offices including that of the Chief Minister of the State of Goa continues
839 Reference was made by Shri Nariman as well as Shri Ashok Desai to Rules 1 and 4 of Order 53 of the Rules of Supreme Court and Section 30 of the Supreme Court Act 1981 England wherein limitation is prescribed for application for judicial review and delay in applying for relief LS a ground for denying the relief unless the Court considers that there is good reason for extending the period of making the application
It was urged that these provisions are substantially the same as the earlier English Practice according to which as held in Everett vs Griffuths supra the order is not issued as of course and the conduct and motives of the applicant may be enquired into
Reference was also made to R vs Stratford on Avon District Council and Anr ex parts Jackson which was followed by the House of Lords in Caswell and Another vs Dairy Produce Quota Tribunal for England and Wales  In our opinion the position remains the same
Emphasis in these decisions is on public interest and good administration and the jurisdiction of the Court to extend time in suitable cases for making such an application
In Caswell the House of Lords took into account the larger public interest for the view that the interest of good administration required non interference with the decision which was challenged after a lapse of a considerable time since any interference at that stage when third party interests had also arisen would be detrimental to good administration
In our opinion the exercise of discretion by the court even where the application is delayed is to be governed by the objective of promoting public interest and good administration and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality
We may also advert to a related aspect
Learned counsel for the respondents were unable to dispute that any other member of the public to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed could file such a writ petition even now for the same relief since the alleged usurpation of the office is continuing and this disability on the ground of oblique motives and conduct would not attach to him
This being so the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action without seeking any relief personal to them should not 840 have been dismissed merely on the ground of laches
The motive or conduct of the appellants as alleged by the respondents in such a situation can be relevant only for denying them the costs even if their claim succeeds but it cannot be a justification to refuse to examine the merits of the question raised therein since that is a matter of public concern and relates to the good governance of the State itself Shri RK Garg submitted that laches of the appellants can not legitimise usurpation of office by Ravi section Naik Chopdekar and Bandekar and Shri Jethmalani submitted that manifest illegatlity will not be sustained solely on the ground of laches when it results in continuance in a public office of a person without lawful authority
The fact that the situation continues unaltered since these persons continue to hold the public offices to which they are alleged to be disentitled is in our opinion sufficient to hold that the writ petitions ought not to have been dismissed merely on the ground of laches at the admission stage without examining the contention on merits that these offices including that of the Chief Minister of the State are being held by persons without any lawful authority
The dismissal of the writ petitions by the High Court merely on this ground can not therefore be sustained
The further question now is of the availability of power of review in the Speaker under the Tenth Schedule
POWER OF REVIEW The challenge to the orders dated 7th and 8th March 1991 made by the Acting Speaker under the purported exercise of power of review setting aside the earlier orders of the Speaker disqualifying Ravi section Naik Chopdekar and Bandekar under the Tenth Schedule is made by the appellants on the ground that the Speaker does not have any power of review under the Tenth Schedule
It was stated in Patel Narshi Thakershi and Ors
vs Pradyumansinghji Arjunsinghji AIR 1970 SC 1273 thus It is well settled that the power to review is not an inherent power
It must be conferred by law either specifically or by necessary implication
 This position is not disputed before us
Admittedly there is no express provision conferring the power of review on the Speaker in the 841 Tenth Schedule
The only question therefore is whether the Speaker acting as the authority under the Tenth Schedule has the power of review by necessary implication empowering him to set aside the earlier order of disqualification made by him on merits
On behalf of the appellants it was contended that such a power of review in the Speaker can not be implied from the provisions in the Tenth Schedule and the only remedy available to the aggrieved Member is by judicial review of the order of disqualification
In reply it was contended on behalf of the respondents that the power of review inheres in the Speaker under the Tenth Schedule in view of the finality attaching to the order made underpara 6 of the Tenth Schedule
It was submitted that this inherent power of review in the Speaker must be read in the Tenth Schedule at least up to 12th November 1991 when the Judgment in Kihoto Hollohan was rendered declaring the availability of judicial review against the Speaker s order of disqualification made under para 6 of the Tenth Schedule
It was further submitted by learned counsel for the respondents that only a limited judicial review being available against the Speaker s order of disqualification as held by the majority in Kihoto Hollohan some power of review inheres in the Speaker even thereafter to correct palpable errors falling outside the limited scope of judicial review
It was then submitted that the defects in the orders of disqualification made by the Speaker in the present case which were corrected by review were such defect which come within the ambit of the limited power of review available to the Speaker in addition to availability of judicial review as declared in Kihoto Hollohan
Both sides referred to the merits of the orders of dis qualification made by the Speaker but we refrain from adverting to this aspect as indicated earlier in view of the conclusion reached by us that the Speaker has no power of review under the Tenth Schedule and an order of disqualification made by him under para 6 is subject to correction only by judicial review as held in Kihoto Hollohan
Accordingly the alleged defects would require examination by judicial review in the writ petitions filed in the High Court challenging the orders of disqualification
Shri Nariman contended that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his otherwise plenary jurisdiction to decide the question of disqualification
He submitted that according to the majority in Kihoto Hallohan only limited scope of judicial review  is available and therefore the power of review 842 inheres in the Speaker to review his own orders on grounds analogous to those in Order 47 Rule 1 Code of Civil Procedure
In support of this submission Shri Nariman placed reliance on the decisions in Shivdeo Singhs and Ors
vs State of Punjab and Ors
 AIR 1963 SC 1909 and Grindlays Bank Ltd vs Central Government Industrial Tribunal and Ors
 Another limb of Shri Nariman s submission is that the majority opinion in Kihoto Hollohan does not declare para 7 of the Tenth Schedule to be unconstitutional from the inception and Article 13 having no application to a constitutional amendment the existence of para 7 in the Tenth Schedule till the judgment was rendered in Kihoto Hollohan on 12th November 1991 must be accepted and the provisions in the Tenth Schedule including para 7 therein must be examined for determining the implied power of review in the Speaker till 12th November 1991
On this basis it was submitted that the finality declared in para 6 of the Tenth Schedule coupled with the ouster of judicial review in para 7 re enforces existence of the implied power of review in the Speaker at least till 12th November 1991 prior to which the impugned orders of review were made in the present case
A further submission made by Shri Nariman was that by virtue of para 62 read with para 8 of the Tenth Schedule the general rules of procedure as well as Rule 77 of the Members of the Goa Legislative Assembly Disqualification on ground of Defection Rules 1986 applied under which the Speaker ordinarily has the power of review
In this connection reference was made particularly to Rule 77 of the Rule of Procedure and Conduct of Business of the Goa Legislative Assembly regarding breach of privilege which enables the Speaker to reconsider his earlier decision and Rule 77 of the Members of the Goa Legislative Assembly Disqualification on grounds of defection Rules 1986 relating to the procedure
It was submitted that these general rules relating to Speaker s power while dealing with a breach of privilege can be read to confer an express power of review
The last limb of Shri Nariman s contention may be disposed of at the outset
There is no scope for reading into the Tenth Schedule any of the powers of the Speaker which he otherwise has while functioning as the Speaking in the House to clothe him with any such power in his capacity as the statutory authority functioning under the Tenth Schedule of the Constitution
This is well settled by the decisions of the Court relating to Speaker s orders under the Tenth Schedule
Accordingly any power of the Speaker available to him while functioning in the House is not to be 843 treated as his power or privilege as the authority under the Tenth Schedule
The majority opinion in kihoto Hollohan was pressed into service by Shri Nariman as well as Shri Ashok Desai to support several aspects of their submissions
We may now refer to that opinion
In Kihoto Hollohan there was no difference between the majority and minority opinions on the nature of finality attaching to the Speaker s order of disqualification made under para 6 of the Tenth Schedule and also that para 7 therein was unconstitutional in view of the non compliance of the proviso to clause 2 of Article 368 of the Constitution by which judicial review was sought to be excluded
The main difference in the two opinions was that according to the majority opinion this defect resulted in the constitution standing amended from the inception with insertion of the Tenth Schedule minus para 7 therein while according to the minority the entire exercise of constitutional amendment was futile and an abortive attempt to amend the constitution since Para 7 was not severable
According to the minority view all decisions rendered by the several Speakers under the Tenth Schedule were therefore nullity and liable to be ignored
According to the majority view para 7 of the Tenth Schedule being unconstitutional and severable the Tenth Schedule minus para 7 was validly enacted and therefore the orders made by the Speaker under the Tenth Schedule were not nullity but subject to judicial review
On the basis of the majority opinion this Court has exercised the power of judicial review over the orders of disqualification made by the speakers from the very inception of the Tenth Schedule and the exercise of judicial review has not been confined merely to the orders of disqualification made after 12th November 1991 when the judgment in Kihoto Hollohan was rendered
Venkatachaliah J as he then was wrote the majority opinion and thereafter on this premise exercised the power of judicial review over orders of disqualification made prior to 12111991
The basic fallacy in the submission made on behalf of the respondents that para 7 must be treated as existing till 12th November 1991 is that on that view there would be no power of judicial review against an order of disqualification made by the Speaker prior to 12th November 1991 since para 7 in express terms totally excludes judicial review
Accepting the submission of learned counsel for the respondents that para 7 must be read in the Tenth Schedule till 12th November 1991 when 844 the judgment in Kihoto Hollohan was rendered for which submission they place reliance on the majority opinion in Kihoto Hollohan would amount to taking a view contrary to the decision in Kihoto Hollohan itself as indicated
At one stage Shri Nariman also attempted to read the majority opinion in Kihoto Hollohan as not expressly declaring para 7 in the Tenth Schedule as unconstitutional adding that such a declaration was made only in the minority opinion which declared the entire Tenth Schedule to be unconstitutional
We are unable to read the majority opinion in this manner
Any attempt to find support for the submissions of the respondents in the majority opinion in Kihoto Hollohan is futile
The Constitution Bench decision in Shivdeo Singh and Ors
vs State of Punjab and Ors
supra is distinguishable and of no assistance to the respondents in the present case
That was a case wherein the High Court had exercised its power in a second writ petition filed under Article 226 of the Constitution by a person who was not made a party in the earlier writ petition the order made in which was adverse to him
This court held that the second writ petition by such a person was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of a person who was not a party to the previous writ proceedings
That decision has no application in this situation
Strong reliance was placed by Shri Nariman as well as Shri Ashok Desai on the decision of a two Judge bench in Grindlays Batik Ltd It was submitted by learned counsel that in the present case the defects in the orders of disqualification fell in the first of the two categories mentioned at page 347 SCR to which extent there is inherent power of review in the Speaker
It may be mentioned that the decision in Patel Narshi Thakershi  Ors
vs Pradyumansinghji Arjunsinghji AIR 1970 SC 1273 is referred and distinguished at page 347 SCR on the facts of that case
In that decision the question was whether the Industrial Tribunal constituted under Section 7A of the had the power to set aside an exparte award made by it
It was held with the aid of Rule 24b Industrial Disputes Central Rules 1957 that the Tribunal had the power of a civil court under Order XVII of the Code of Civil Procedure relating to grant of adjournments and therefore as a necessary corollary the power under Order IX Rule 13 was attracted to enable the Tribunal to set aside an ex 845 parte award
In our opinion the decision in Grindlays Bank Ltd wherein certain statutory rules attracted the power under Order XVII read with Order IX Rule 13 of the Code of Civil Procedure in the Tribunal to set aside an ex parte award is clearly distinguishable and is of no assistance in the present case
The power of review which it is suggested by counsel for the respondents inheres in the Speaker by necessary implication has to be found in the provisions made in the Tenth Schedule alone and not elsewhere
Para 7 has to be treated as non existent in the Tenth Schedule from the very inception as earlier indicated
As held by the majority in kihoto Hollohan judicial review is available against an order of disqualification made by the Speaker under para 6 of the Tenth Schedule notwithstanding the finality mentioned therein
It is on account of the nature of finality attaching by virtue of para 6 that the judicial review available against the Speaker s  order has been labeled as limited in para 110 at page 711 of SCC of the decision in Kihoto Hollohan 1992 Supp 2 SCC 651 and the expression has to be understood in that sense distinguished from the wide power in an appeal and no more
As held in Kihoto Hollohan the Speaker s order is final being subject only to judicial review according to the settled parameters of the exercise of power of judicial review in such cases which it is not necessary to elaborate in the present context
The existence of judicial review against the Speaker s order of disqualification made under para 6 is itself a strong indication to the contrary that there can be no inherent power of review in the Speaker read in the Tenth Schedule by necessary implication
The need for correction of errors in the Speaker s order made under the Tenth Schedule is met by the availability of judicial review against the same as held in Kihoto Hollohan
In our opinion there is no merit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification or that such a power existed till 12th November 1991 when the decision in Kihoto Hollohan was rendered or at least a limited power of review inheres in the Speaker to correct any palpable error outside the scope of judicial review
CONSEQUENCE On the above view taken by us the orders dated 7th and 8th March 1991 made by the Acting Speaker in purported exercise of the power of 846 review are liable to be declared nullity and to be ignored with the result that the order dated 13th December 1990 disqualifying Chopedekar and Bandekar and dated 15th February 1991 disqualifying Ravi SNaik as Members of Goa Legislative Assembly would continue to operate
Writ petition No321 of 1990 filed by Chopdekar and Bandekar challenging the orders of their disqualification is pending in the High Court wherein an interim order staying the operation of their orders of disqualification is subsisting
Chopdekar and Bandekar can pursue that remedy to challenge their disqualification and no further order is required to be made by this Court for that purpose
However writ petition No48 of 1991 which was filed in the High Court by Ravi section Naik challenging his disqualification wherein also an interim order was made staying the operation of the order of his disqualification was not pressed by Ravi SNaik after the order in purported exercise of power of review was made in his favour on 8th March 1 991 and therefore that writ petition was dismissed as not pressed on 2241991
The question is of the order if any required to be made by this Court in this situation
Shri Ram Jethmalani appearing for the appellants in CA No109492 suggested that in all fairness writ petition No48 of 1991 should be revived in the High Court to enable Ravi SNaik to pursue his remedy of seeking judicial review against his disqualification
On the other hand Shri RK Garg learned counsel for the appellant in Civil Appeal No109692 opposed the making of such an order
Both the learned counsel however
submitted that the interim order of stay made therein would not revive even if that writ petition is revived and the High Court will have to consider Afresh the question of making an interim order at the behest of Ravi section Naik
On the other hand Shri FS Nariman appearing for Ravi section Naik in both these appeals submitted that it would be just in the circumstances of the case to revive writ petition No48 of 1991 for decision on merits by the High Court and the interim order of stay should also enure to the benefit of Ravi section Naik during the pendency of the writ petition more so when he is the Chief Minister of the State and refusal of stay would result in uncertainty in the State
Having given our anxious consideration to the matter we have no doubt that the fact to Ravi section Naik being the Chief Minister of the State 847 of Goa is a wholly irrelevant circumstance for this purpose
All the same an order which would be just and proper to make in the circumstances of this case has to be made taking into account also the fact that the law was declared and came to be settled only by the decision of this Court in Kihoto Hollohan after making of the orders of review by the Acting Speaker in the present case where after writ petition No48 of 1991 was dismissed as not pressed
We have no doubt that Article 142 of the Constitution enables us if necessary to enlarge the powers of this Court for making an order which would be just in the facts and circumstances of this case
In our opinion it would be appropriate to revive writ petition No48 of 1991 for hearing on merit by the High Court as suggested even by Shri Ram Jethmalani and to also order interim stay of the operation of the order of disqualification dated 1521991 made by the Speaker which was the situation prevailing till that writ petition was dismissed as not pressed
It is however necessary that writ petition No48 of 1991 and also writ petition No321 of 1990 should be heard and disposed of at the earliest on account of their expediency
RELIEF Accordingly we allow these appeals in the following manner 1 The impugned orders of the High Court dated 421992 dismissing writ petition No11 of 1992 dated 2421992 dismissing writ petition No70 of 1992 and dated 421992 dismissing writ petition No8 of 1992 are set aside 2 Writ petition Nos11 of 1992 70 of 1992 and 8 of 1992 are allowed declaring that orders dated 731992 and 831992 made by the Acting Speaker in purported exercise of power of review are nullity and liable to be ignored
3 Consequently orders dated 13121990 made by the Speaker disqualifying Ratnakar Chopdekar and Sanjay Bandekar continue to operate and writ petition No321 of 1990 pending in the High Court has to be heard and decided on merits in accordance with law 4 Similarly order dated 1521991 made by the Speaker disqualifying Ravi section Naik continues to operate and writ petition No48 of 1991 filed in the High Court by him is revived by setting aside the High Court s order 848 dated 2421991 dismissing that writ petition as not pressed
The High Court will proceed to decide that writ petition also on merits in accordance with law  5 The interim order staying the order of disqualification in writ petition No48 of 1991 is revived
However the parties would be at liberty to apply to the High Court for modification or cancellation of the said interim order or for any other interim relief or direction if so advised 6 The High Court should hear and dispose of the writ petition No48 of 1991 itself on merits as expeditiously as possible preferably by 30th April 1993 7 Writ Petition No321 of 1990 filed by Ratnakar M Chopdekar and Sanjay Bandekar pending in the High Court be also heard and disposed of as expeditiously as possible preferably by 30th April 1993
8 Parties are directed to appear at the Goa Bench of the Bombay High Court on 6th April 1993 without any further notice for obtaining further directions in this behalf
9 In the circumstances of the case the parties will bear their own costs
TNA Appeals allowed


Summary:
In a Notification dated 2891972 with a view to induce the sugar factories respondents to produce more and also to commence their operations early in the sugar year the year commencing on and with 1st October and ending with the 30th of September of the following year a rebate was provided
The scheme of the Notification was 1If during the months of October and November 1972 in the Sugar Year 1972 73 a factory produced sugar in excess of the quantity of sugar produced by it during the months of October November 1971 suchfactory was granted rebate in the Excise Duty at the rate of rupees forty per quintal in so far as the excess production is concerned
2Rebate for the period 1st December 1972 to 30th April 1973 was available at the rate of rupees twenty per quintal provided the production of sugar during the said period was in excess of 115 of the quantity of sugar produced by the said factory during the corresponding period in the previous Sugar Year in so far as the excess production is concerned
3For the months of May and June 1973 rebate at the rate of rupees twenty per quintal was available provided the factory produced more sugar than it produced during the corresponding months in the previous Sugar Year
The said rebate was available again only with respect to the excess production
759 4For the period commencing from 1st July 1973 and ending with 30th of September 1973 rebate was available at the rate of rupees twently per quintal provided the factory produced sugar in excess of the quantity produced during the corresponding period in the previous Sugar Year
This rebate too was confined to the excess production
However the benefit of the rebate mentioned in any of the clauses aforesaid was not available to a factory which inter alia did not work during the base pariod 
The other three Notifications dated 41073 121074 and 30976 were similar
All the four Notifications were applicable to the Sugar years 1972 73 1973 74 1974 75 and 1976 77 respectively
The respondents sugar factories did not produce any sugar in one or the other of the four blocks mentioned in the Table contained in the Notification in the base year previous sugar year
During the current sugar year they produced certain quantity of sugar during that block period
The respondents contended that they were entitled to the benefit of rebate provided in clause 1 of the Table contained in the Notification whereas the Revenue submitted that they were not entitled to the benefit of rebate
The claim for rebate made by the respondnets was allowed in the first instance but later proceedings were initiated to recover back or re adjust the benefit already allowed
These disputes were carried to the High Courts
Almost all the High Courts except Karnataka held in favour of the respondents
In Patna High Court there was a conflict of opinion
Hence this batch of appeals by the Revenue contending that the benefit of rebate was available only where the sugar produced in a factory during the period commencing from the 1st day of October 1972 and ending with the 30th day of November 1972 which is in excess of the quantity of sugarproduced during the corresponding period in 1971 that nil production could not be equated to the quantity of sugarproduced in clause 1 that clause 1 of the first proviso in the 1972 Notification has 760 to be harmonised with the several clauses in the table and that no interpretation should be adopted which rendered any part of the Notification superfluous
Dismissing all
the civil appeals except Civil Appeal Nos 3831 32 of 1988 this Court HELD  101
The several clauses in the Notification must be read together harmonised and reasonably understood without ignoring the underlying object and purpose of the notification
An interpretation which leads to absurd consequences should be avoided
770 E 102The object behind the notification was evidently not only to induce the factories to produce more sugar but also to induce them to start their production early in the sugar year
The object appears to be also to induce the factories to keep on producing the sugar all the year round which they may perhaps not have done otherwise
Running the factories during the off season off season means October November period and then again the period from May June to September may have its own problems which may increase the cost of production
main issue is whether the words the quantity of sugar produced during the corresponding period  do not take in the case of a factory which has not produced any sugar whatsoever during the relevant corresponding period It does take in
Holding otherwise would have this absurd consequence a factory which has produced say just one quintal of sugar during the relevant corresponding period and has produced 1000 quintals during October November 1972 would qualify for the rebate on 999 quintals while another factory which has not produced any sugar nil production but has produced 1000 quintals during October November 1972 would not qualify
770 G H 104The Idea behind the notification is to induce the manufacturers to produce more in the current sugar year than what they have produced in the previous sugar year or during the previous corresponding period in the previous sugar year as the case may be
Where a factor has not produced any sugar or has produced a particular quantity of sugar during the said period in the previous sugar year but produces a larger quantity during the said period in the current sugar year it must be rewarded
771 B D 761 105The case of October November appears to be rather an exception
Normally it appears no factory owner commenced the production of sugar in these months because of several unfavorable factors
Indeed these unfavorable factors appear to be present to a large extent even during the months June to September
The notifications were evidently meant to compensate the factory owners for producing during these months as well
1772 C D 106One must proceed on the assumption that every industrialist and businessman would ordinarily like to produce as much more as possible since normally speaking more production means more profits
772 E 107No manufacturer produces sugar merely for the sake of rebate
Rebate is an inducement an additional attraction
It is not as if without rebate provided by these notifications no one would have produced sugar
771 D 108There is no arithmetical difficulty in working out 115 of zero it is zero
What applies to clause1 applies equally to clauses 2 3 and 4
It is only that the factory need not necessarily have worked during each of the corresponding periods in the base year it is enough if it has worked in the base year
771 E F 109The interpretation placed upon the said notifications by the majority of the High Courts is the correct one
The view taken by the Karnataka High Court in its Judgment under appeal in Civil Appeal Nos 3831 32 of 1988 and the view taken by the Patna High Court in ill Civil Writ Jurisdiction Case No 865 of 1966 are not correct
basis for the percentages prescribed in the Notification dated 12th October
1974 the average production of the previous five years and not the excess production
By way of illustrates take a factory which produces 2500 tons during the period Dec1 1974 to Sept 30 1975 as against the average production of 1000 tons during the corresponding periods in the five previous sugar years
Out of 2500 quintals produced during the said period in the current sugar year December 1 1974 to September 30 1975 the average of the corresponding periods of the five previous sugar years ie 1000 quintals should be deducted first which means the excess production during the said period during the current year is 1500 quintals
75 of 1000 quintals is 75 quintals
On this quantity 762 of 75 quintals the rate of rebate as per sub clause a will be Rs per quintal in the case of free sale sugar and Rs 5 per quintal in the case of levy Sugar
Next 10 of excess production means 100 quintals which would be eligible for rebate under sub clause b at the rate of Rs 40 per quintal In the case of free sale sugar and Rs 10 per quintal in the case of levy sugar
The next 100 quintals would be eligible for rebate under sub clause c at the rate of Rs 50 per quintal in the case of free sale sugar and Rs 14 per quintal in the case of levy sugar
Then again the next 100 quintals would be eligible for rebate under sub clause d at the rate of Rs 60 per quintall in the case of free sale sugar and Rs 18 per quintal in the case of levy sugr
The balance of 1125 quintals would qualify for rebate under sub clause e at the rate of Rs 82 per quintal in the case of free sale sugar and Rs 22 per quintal in the case of levy sugar
774 B E Etikoppaka Co operative Agricultural Society vs Union of India   1982 59 ELT 409 Allahabad  Haryana and 1987 30 ELT 260 Orissa approved
768 H 769 A