IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATIONS Nos 1837 of 1997, 1858 of 97, 1860 of 97, 1861 of 97, 1862 of 97, 1865 of 97 AND 1867 of 97 For Approval and Signature: Hon'ble THE ACTING CJ R.A.MEHTA and MR.JUSTICE R.K.ABICHANDANI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- DILIPSINH VAKHATSINH PARMAR Versus GUMANSINH VAGHELA AND ORS. -------------------------------------------------------------- SHIVABHAI GOHIL Versus GUMANSINH VAGHELA AND ORS. -------------------------------------------------------- MADHUBHAI B. RAUT Versus GUMANSINH VAGHELA AND ORS. -------------------------------------------------------- VITHALBHAI PATEL Versus GUMANSINH VAGHELA AND ORS. -------------------------------------------------------- KESHUBHAI NAKRANI Versus GUMANSINH VAGHELA AND ORS. -------------------------------------------------------- KURJIBHAI GOTI Versus GUMANSINH VAGHELA AND ORS. -------------------------------------------------------- PARBAT SODHAM Versus GUMANSINH VAGHELA AND ORS. -------------------------------------------------------- Appearance: 1. Special Civil Application No. 1837 of 1997 MR YN OZA for Petitioner MR S.N.SHELAT, Additional Advocate General with MR P.G. Desai, Government Pleader for the respondents Nos. 1 and 2. MR. K.S. NANAVATI, Senior Counsel with Mr.R.S.SANJANWALA for the respondent No.3 2. Special Civil ApplicationNo 1858 of 1997 MR B.P TANNA with MR. A.D OZA for Petitioner MR S.N.SHELAT, Additional Advocate General with MR P.G. Desai, Government Pleader for the respondents Nos. 1 and 2. MR. K.S. NANAVATI, Senior Counsel with Mr.R.S.SANJANWALA for the respondent No.3 3 Special Civil Application No. 1860 of 1997 MR Y.N. OZA with MR. V.H. DESAI for Petitioner MR S.N.SHELAT, Additional Advocate General with MR P.G. Desai, Government Pleader for the respondents Nos. 1 and 2. MR. K.S. NANAVATI, Senior Counsel with Mr.R.S.SANJANWALA for the respondent No.3 4 Special Civil Application No. 1861 of 1997 MR B.P. TANNA with MR. S.P. Hasurkar for Petitioner MR S.N.SHELAT, Additional Advocate General with MR P.G. Desai, Government Pleader for the respondents Nos. 1 and 2. MR. K.S. NANAVATI, Senior Counsel with Mr.R.S.SANJANWALA for the respondent No.3 5 Special Civil Application No. 1862/97 MR B.P TANNA with MR. A.D OZA for Petitioner MR S.N.SHELAT, Additional Advocate General with MR P.G. Desai, Government Pleader for the respondents Nos. 1 and 2. MR. K.S. NANAVATI, Senior Counsel with Mr.R.S.SANJANWALA for the respondent No.3 6 Special Civil Application No. 1865 of 1997 MR. Y.N OZA for Petitioner MR S.N.SHELAT, Additional Advocate General with MR P.G. Desai, Government Pleader for the respondents Nos. 1 and 2. MR. K.S. NANAVATI, Senior Counsel with Mr.R.S.SANJANWALA for the respondent No.3 7. Special Civil Application No. 1867 of 1997 MR.Y.N.OZA for the petitioner MR S.N.SHELAT, Additional Advocate General with MR P.G. Desai, Government Pleader for the respondents Nos. 1 and 2. MR. K.S. NANAVATI, Senior Counsel with Mr.R.S.SANJANWALA for the respondent No.3 -------------------------------------------------------------- CORAM : THE ACTING CJ R.A.MEHTA and MR.JUSTICE R.K.ABICHANDANI Date of decision: 17/03/97 ORAL JUDGEMENT (Per R.K.Abichandani,J.) All these seven petitions have been heard together and are being disposed of by this common judgement at the instance of both the sides. The learned Counsel for both the sides have referred to the papers filed in the main matter Special Civil Application No. 1837/97 for the purpose of their arguments. 2. These identical petitions seek to challenge the order passed by Hon'ble the Speaker of the Gujarat Legislative Assembly on 24th Feb. 1997 which is at Annexure "A" to the petition by which these petitioners were in response to their letter dated 20th Feb. 1997 addressed to Hon'ble the Speaker informed by him that he did not find it proper at that stage to change the sitting arrangement under which these petitioners were allotted their seats with the Mahagujarat Janata Party in the House. A declaration is also sought that these petitioners continued to be the members of the Bharatiya Janata Party and that they were entitled to sit with the members of the Bharatiya Janata Party in the House. By an amendment a further prayer is sought, seeking a direction that the names of the petitioners should be deleted from the list of the members of the Mahagujarat Janata Party and be entered in the list of members of the Bharatiya Janata Party in the roll of the Gujarat Legislative Assembly. By a further amended prayer, the petitioners seek a direction for setting aside the order of the Hon'ble Speaker published in the bulletin dated 18th Feb. 1997 at Annexure V to the affidavit in reply of the respondent No.3 President of the MJP, by which the Hon'ble Speaker declared the earlier order dated 3rd Sept. 1996 giving recognition to the separate group of Dilipbhai Parikh as operative and directed the Secretary of the Legislative Assembly to make the sitting arrangements in the House accordingly. All these petitioners were admittedly elected as the candidates of the Bharatiya Janata Party ("BJP" for short) in the Assembly elections of 1995. It is their case that the BJP secured an absolute majority by obtaining 121 seats in a House of 182 in which the Congress party secured 45 seats and 16 independent candidates were elected. According to the petitioners, at a meeting of the BJP legislators on 18.8.1996 which was attended by 97 MLAs who were elected as the candidates of the BJP, Atmaram Patel, C.K.Raulji, Mansinh Chauhan, Vipul Chaudhary and some others were expelled from the party for anti-party activities. On that day itself between 7.00 to 10.00 P.M, four MLAs led by Shri Atmaram Patel, submitted a memorandum to His Excellency the Governor alongwith a list of MLAs alleging that a separate group representing faction consisting of not less than one third of the members of the BJP was constituted under the name of Mahagujarat Janata Party in the Gujarat Legislative Assembly and that the present ruling party was reduced in strength to 75 members and had lost majority in the House. The Governor was therefore requested to take appropriate action in this regard. It was also stated that necessary application for being recognised as a group representing the faction which had formed into Mahagujarat Janata Party ("MJP" for short) in the Assembly was being made to Hon'ble the Speaker. According to the petitioners, as soon as they came to know about this move, they and others wrote letters disputing their signatures contained in the list forwarded to the Governor. It appears that His Excellency the Governor forwarded papers to the Speaker for verification of the signatures. The D.O letters dated 24th, 26th and 27th August, 1996, written by the Principal Secretary to the Governor to the Secretary of the Assembly regarding verification of names and signatures of MLAs on the documents appended to those letters are referred in the communication dated 30th August, 1996 sent by the Secretary of the Assembly Mr. V.H.Dave to the Principal Secretary to the Governor of Gujarat. Under the said communication, it was informed that all the signatures of MLAs excepting the signature of the MLA at Serial No.40 on the memorandum and resolution which were forwarded with the letter dated 24th August, 1996, appeared to be resembling to the signatures on the available record of the Secretariat and that it was difficult to verify the signature appearing at serial No.40 since it was in English while the Secretariat records had signature of that person in Gujarati. As regards the signatures of 13 members on identical letters forwarded to the Assembly Secretariat, it was informed that they appeared to be resembling to the signatures of those members as per the Secretariat records. In respect of five letters forwarded under D.O letter dated 26th August, 1996, it was informed that the five signatures of those letters appeared to be resembling to the signatures of those members. It was further informed that though the Hon'ble Speaker had not been requested to verify the claim regarding the split in the legislature party, it was for him to decide the question of split. It was also stated that 18 members out of the members who had signed the resolution forming a new party had personally met the Hon'ble Speaker on 26th August, 1996 claiming that they had not joined the new party. The leader of the MJP had handed over application dated 18th August, 1996, according to the learned Counsel appearing for him, to the Speaker in the Assembly on 3.9.1996, by which the Hon'ble Speaker was requested to treat the group representing the faction named MJP arisen as a result of a split in the original political party, as a separate political party in the Assembly and to allot separate seats in the House to the members of the MJP. Alongwith that application, it is alleged that necessary information with the declarations of the respective members was forwarded with the resolution of the MJP. Xerox copies of these papers are placed on record on behalf of the respondent No.3 Dilipbhai Parikh and the original documents are not forthcoming, in view of the contention of the Hon'ble Speaker voiced through the learned Additional Advocate General that this Court has no jurisdiction to go into this aspect, since the action impugned by the petitioners is not any action taken by the Hon'ble Speaker as a Tribunal under Schedule X of the Constitution of India. The petitioners' case is that they had not furnished any such forms and that signatures of five of the petitioners were forged while the signatures of two of them were obtained under duress. On 31st August, 1996, Mr.Dilipbhai Parikh filed Special C.A No. 6599/1996 challenging the communication dated 30th August, 1996 sent to the Private Secretary to the Governor of Gujarat by the Secretary of the Assembly Mr. V.H.Dave. In that petition, a statement came to be made by the learned Additional Advocate General on 18.9.1996 that the opinion expressed in the letter dated 30th August, 1996 issued by the Assembly Secretary on the direction of the then Speaker of the Assembly was only a tentative opinion of Hon'ble the Speaker in response to the Governor's enquiry and had nothing to do with the finding on the disqualification application moved by the respondent No.5 of that petition (Mr.Haren Pandya) and that the decision on incurring of disqualification by some of the members of the legislative Assembly shall be taken by the Speaker in accordance with law. This fact is recorded in the order of Hon'ble Mr.Justice R.Balia, made on 18.9.1996 by which the petition was dismissed as not pressed, leaving all the parties open to raise their respective contentions as and when occasion for raising such contention arises. In the meantime, it appears that on 3.9.1996 an Assembly meeting was convened according to the petitioners to enable the then Chief Minister to prove his majority on the Floor of the House and a whip was issued by the BJP to its members to remain present and vote in favour of the motion of confidence which was to be moved by the then Chief Minister on that day. 3. On 3rd Sept. 1996 when the House convened at 10 A.M., the Deputy Speaker Shri Dabhi took the Chair in absence of the Speaker of the House Mr.H.L.Patel, who was unwell. At that time on being asked by Shri Dilipbhai Parikh as to what was done regarding his letter, the Hon'ble the Deputy Speaker made a declaration stating that he was asked by the Secretary to the Assembly to act as a Speaker and that in context thereof Shri Dilipbhai Parikh and others had met and spoken to him and in that regard he had a declaration to make that the group of Dilipbhai Parikh was in context of their representation and verification of signatures of 46 members, recognised by him and he was issuing instructions for making a separate sitting arrangement for them. Immediately thereafter there was commotion and interruption and the House was adjourned sine-die at 10.04 hrs. Instruction was issued in writing on 3.9.1996 by him to the Secretary of the Assembly to the effect that since he had made the declaration about recognition of the group of 46 members in the House, the Secretary should implement the order of recognition of the said group and make necessary separate sitting arrangement for the group. Alongwith this order he forwarded to the Secretary the application for recognition of the group, a copy of the Constitution of the new group and forms. The House was reconvened by the Speaker at 3.00 P.M but again the Deputy Speaker, who chaired the House in absence of the Speaker adjourned it sine-die preventing the confidence motion from being voted upon, according to the petitioners. On 4.9.1996, the then Chief Minister addressed a letter to the Speaker Mr.Harishchandra Patel for declaring the recognition of the group given by the Deputy Speaker as null and void and requesting him not to allot separate seats for that group. The leader of the newly formed group also addressed a letter to the Hon'ble the Speaker on 5.9.1996 requesting him not to accede to the letter of the then Chief Minister dated 4.9.1996 and contending that the action of the Deputy Speaker in absence of the Speaker was not without authority in view of Rule 13 of the Assembly Rules. The Speaker was also requested not to take any adverse decision in the matter before hearing the MJP. From a copy of the bulletin issued on 9.9.1996, it appears that the Secretary of the Assembly notified the order of Hon'ble the Speaker made on 4.9.1996 to the effect that the proceedings done by the Deputy Speaker in absence of the Speaker on 3.9.1996 were not in consonance with the provision of Article 180(2) of the Constitution and that the action of the Deputy Speaker in giving recognition to the group and directing separate sitting arrangement for them in the House was ex-facie without authority and unconstitutional. A direction was therefore given not to provide for any separate sitting arrangement as sought for by the group. As noted above, on 18.9.1996, a statement was made in a writ petition filed by Mr. Dilipbhai Parikh, on behalf of the Speaker that his opinion was only tentative and that it had nothing to do with the application moved by a member (MLA Mr. Haren Pandya respondent No.5 in that petition) and that the decision on incurring of disqualification by members will be taken by the Speaker, in accordance with law. On 16th September, 1996, unfortunately, the Hon'ble Speaker Shri H.L.Patel, had passed away. On that day itself, the Acting Speaker issued orders which were published in the bulletin dated 18th February, 1997. In response to the representation of Shri Dilipbhbai Parikh made on 16th Sept. 1996, it was declared therein that the order of the Speaker declaring the earlier order dated 3.9.1996 recognising the group as null and void, was to be treated as inoperative and the earlier order dated 3.9.1996 was to be treated as operative and that separate sitting arrangement should be made for the group by the Secretary of the Assembly. It appears that on 10.9.1996, 7 MLAs of the BJP had filed FIR in the Gandhinagar Police Station, alleging that their signatures which appeared on the memorandum submitted on 18.8.1996 to His Excellency the Governor, were forged. On 18th September, 1996 the confidence motion moved by the then Chief Minister was passed by 92 votes as per the letter of the Secretary to the Assembly dated 18.9.1996 at Annexure "M/1" to the petition. On 18.2.1997, a letter was addressed by the BJP to the Speaker for making sitting arrangement for 77 MLAs of the BJP. On that day itself, another letter was sent to the Secretary of the Assembly asking him to make arrangements for allotting 77 seats for the BJP, alleging that confusion was being created in the question of allotment of seats so that MLAs are frightened and can be pressurised to change their loyalty. It was also alleged that the action was taken by Hon'ble the Speaker with a view to affect adversely the BJP and to protect his own interest in the disqualification petition which was filed against him. The petitioners had also written a letter to the Speaker regarding sitting arrangement on 20.2.1997 in response to which the impugned communication dated 24th Feb. 1997 was sent to the petitioners by the Secretary of the Assembly on instructions from Hon'ble the Speaker, informing them that as per the orders of the Hon'ble the Speaker, they were members of the MJP and the names of the members were published and further that the stand taken up by the petitioners that they had never joined the MJP, was not consonant with the record of the Assembly Secretariat and therefore, until the claim of the petitioners was proved, the Hon'ble the Speaker did not find it proper to make any change in the existing sitting arrangement. 4. The contention of the petitioners is that the impugned decision of the present Speaker to allot seats to the seven petitioners with the MJP on the assumption and basis that they are members of the MJP and not of the BJP, is virtually a decision under paragraph 6 of the Tenth Schedule. It is their case that they have never been with the MJP and have all along continued to be with the BJP. Five of the petitioners have denied their signatures and have alleged forgery and two of the petitioners have while not denying their signatures, disputed the voluntariness by pleading duress. The alleged verification of signatures by the then Speaker as reflected in the letter of the Secretary of the House addressed to the Private Secretary to the Governor, confirmed that all the signatures except at Sr.No.40 which could not be verified, were similar to the admitted signatures on the record of the Assembly. It is submitted by the petitioners that they have been elected as the members of the Legislative Assembly as BJP candidates and until it is finally proved that they have voluntarily given up the membership of their original party BJP, they have to be treated as BJP members and they cannot be treated as members of the MJP. Treating them as the members of the MJP would be virtually deciding and accepting the defence of "split" in the disqualification proceedings, according to the petitioners. It is further submitted on their behalf that since the Speaker himself (who is the Tribunal under the Tenth Schedule) has taken this decision, it should be treated as a decision under the Tenth Schedule. Since the said decision is taken without any hearing and without recording any evidence, it is wholly and utterly illegal. It is also submitted that such decision is void because of violation of principles of natural justice and is biased and malafide which makes it subject to judicial review in view of the ratio of the decision of the Supreme Court in Kihota's case. The learned Counsel appearing for these petitioners have contended that the impugned action of the Speaker of branding these petitioners as members of the MJP and part of the group led by Dilipbhai Parikh was an action relatable to the provisions of Schedule X of the Constitution. It was submitted that the said action was motivated and aimed to bringing about a situation where these petitioners could be disqualified as members under Schedule X. It was submitted that the impugned action of the Speaker, was not a simple arrangement of allotment of seats to the petitioners, but it amounted to telling the petitioners that they belonged to the MJP while according to them, they always belonged to the BJP. It was submitted that the impugned orders made by the Deputy Speaker were wholly without jurisdiction, because the Deputy Speaker in the absence of the Speaker could only conduct the routine business of the House and had no authority to discharge functions of the Speaker acting as a Tribunal under Schedule X. It was submitted that the question of split in a political party contemplated in Schedule X could be decided only by the Speaker acting under Schedule X and not by the Deputy Speaker. It was also submitted that on the very day on which the memorandum was submitted to His Excellency the Governor, i.e. on 18.8.1996 itself, as many as 18 members who were said to have crossed over to the MJP had declared that they were with the BJP and had not defected. It was therefore, submitted that when declaration was made on 3.9.1996 by the Deputy Speaker while chairing the House in absence of the Speaker, it was a malafide declaration not borne out by the facts. It was submitted that the Deputy Speaker could not have decided that these petitioners belonged to the MJP. It was also submitted that without deciding the question as to whether the signatures were forged and some of them were obtained under duress, the Deputy Speaker could not have even asked the petitioners to sit with the MJP in the House. The learned Counsel for the petitioners placed reliance on a decision of the Bombay High Court in Pramod Jagtap Vs. State of Maharashtra, reported in AIR 1996 Bombay 429, in which it was held, in context of notice of resignation from Zilla Parishad, that even assuming that the resignation letters were signed by the members, they could change their mind before their delivery and withdraw the resignations and that voluntariness was not sufficient to be expressed only qua signing the resignation letter, but it must be apparent even thereafter till their delivery and acceptance by the competent authority. The learned Counsel for the petitioners also relied upon the decision of the Supreme Court in Kihota Hollohon Vs. Zachilhu reported in AIR 1993 S.C 412, in support of their contention that the power to resolve the question of disqualification due to defection vested in the Speaker and that it was judicial power, the exercise of which was amenable to judicial review under Articles 136, 226 or 227 of the Constitution. It was submitted that there was no immunity from judicial scrutiny available to any order made under Xth Schedule. It was submitted that the impugned order at Annexure "A" was not merely a procedural matter but it substantively affected the petitioners' right by their being grouped with the MJP. It was also argued that the recognition of the MJP group was on the basis of the allegation that there were not less than 1/3rd of the members of the BJP who had constituted the group known as MJP and this was germane to the considerations that would arise in a disqualification petition under the Tenth Schedule of the Constitution. It was further submitted that since the Hon'ble the Speaker did not produce on the record of these petitions the original documents including forms allegedly containing the signatures of the petitioners, an adverse inference should be drawn to the effect that the petitioners had never signed those documents and that they continued to remain with the BJP. Relying upon the decision of the Supreme Court in Ravi Naik Vs. Union of India, reported in AIR 1994 S.C 1558 it was contended by the learned Counsel for the petitioners that judicial review is permissible if an order was passed under paragraph 6(1) of the Xth Schedule in violation of the principles of natural justice. Reliance was also placed on the decision of the Supreme Court in, In re, Under Article 143, Constitution of India, reported in AIR 1965 (S.C) 745 in support of their contention that no privilege could be claimed in respect of the impugned action under the provisions of Article 194(3) of the Constitution and that the Rules made under Article 194(3) must be subject to the fundamental rights of the citizen. 5. On the other side, it is submitted that on the question being raised in the House regarding the sitting arrangement,