C.W.P No. 14194 of 2010 (O&M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 14194 of 2010 (O&M) Date of decision : December 20, 2010 Kuldeep Bishnoi ...... Petitioner v. Speaker, Haryana Vidhan Sabha and others, ...... Respondents *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. S.P.Jain, Sr. Advocate with Mr. Dheeraj Jain, Advocate for the petitioner. Mr. Mohan Jain, Addl. Solicitor General of India with Mr. Kamal Nehra, Advocate for respondents No.1, 2 and 8. Mr. Harbhagwan Walia, Sr. Advocate with Mr. Arun Walia, Advocate for respondents No.3 to 7. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J By this writ petition, the petitioner has challenged the orders dated 9.11.2009 and 10.11.2009 (Annexures P-4 and P-7 respectively), as well as sought the issuance of a direction to respondent No.1 to decide five disqualification petitions, filed by him, against respondents No.3 to 7 within C.W.P No. 14194 of 2010 (O&M) ::2:: a period of three months. The petitioner asserts that private respondents No.3 to 7 had contested elections under the banner of Haryana Janhit Congress (BL) of which the petitioner was the President as well as the Leader. It has further been averred that elections to the Haryana Vidhan Sabha took place in September-October 2009. On 9.11.2009, initially respondents No.3 to 6 moved an application to respondent No.1 claiming that they had taken a decision to merge Haryana Janhit Congress (BL) party with the Indian National Congress Party in terms of the provisions of Paragraph 4 of the Tenth Schedule of the Constitution of India, and prayed for acceptence of the merger. On that very date, a similar application was moved by respondent No.7 wherein he stated that he was also a party to the said decision but could not reach Chandigarh due to unavoidable circumstances and hence had moved a separate application. By the impugned orders, Annexures P-4 and P-7, respondent No.1 accepted the merger. The petitioner further asserts that he moved applications and reminder to respondent No.1 requesting him to provide copies of the applications moved by the private respondents, as also the copies of the orders passed thereon. However, the same were not provided. Thereafter, on 9.12.2009, the petitioner moved petitions under Article 191 read with Tenth Schedule of the Constitution of India and the Haryana Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 (for short “the Rules”) praying for disqualification of respondents No.3 to 7 as Members of the Haryana Legislative Assembly. It is further averred in the petition that in response to his application for supplying him the documents, C.W.P No. 14194 of 2010 (O&M) ::3:: as aforesaid, the petitioner was asked, vide letter dated 9.12.2009, to intimate the provision under which the said application was maintainable. The petitioner submitted a detailed reply on 17.12.2009. Thereafter, on 1.1.2010 the petitioner was supplied the aforementioned documents. It is further the case of the petitioner that during the period December 2009 to March 2010, he did not receive any notice, intimation or document from respondent No.1 regarding the fate of the said five petitions filed by him. The petitioner thereafter on 20.4.2010 inspected the files of the disqualification petitions wherein, the following facts were revealed :- “ i) Though the petitions were filed on 9.12.2009, respondent No.1 issued notices to the respondent-MLAs (respondents No.3 to 7) only on 22.12.2009, granting them three weeks time to file their replies; ii) All the registered letters sent to respondents No.3 to 7 were said to have been received back undelivered on 12.1.2010. iii) On 14.1.2010, respondent No.1 again issued notices to respondents No.3 to 7 for their comments within one week. iv) Notices sent on 14.1.2010 were again received back undelivered on 3.2.2010. v) Respondent No.1 again on 9.2.2010 issued similar order as before in all the petitions. vi) It also came to notice that respondents No.3 to 7 moved applications dated 4.3.2010 praying for adjournment of the cases till service in the other disqualification petitions filed against them is complete. vii) On 5.3.2010, respondent No.1, without issuing any notice of the applications, allowed the applications and granted respondents No.3 to 7 six weeks time to file replies. viii) Thereafter, on 31.3.2010, respondent No.1 as a last opportunity granted two weeks' more time to file replies by respondents No.3 to 7. However, no reply was filed by any of the said respondents. ix) On 7.4.2010, respondents No.3 to 7 filed applications before respondent No.1 praying twelve weeks' time to file their replies. Respondent No.1, C.W.P No. 14194 of 2010 (O&M) ::4:: ignoring the earlier order of last opportunity, allowed the application and granted eight weeks' further time to file replies and adjourned the matter to 18.6.2010. x) Respondent No.1 neither issued any notice of the applications to the petitioner nor did he intimate him about the same before passing of the orders.” It is further averred that on 21.4.2010, the instant writ petition was filed and this fact was widely reported in the media. On 21.4.2010 i.e after inspecting the files by the petitioner, respondent No.1 sent letters to the petitioner informing him that the petitions are fixed for hearing on 18.6.2010. The petitioner along with his counsel appeared before respondent No.1 on the said date but as respondent No.1 had to go out of station, the matter was adjourned to 16.7.2010. On the said date, the petitioner appeared before respondent No.1. Respondents No.3 to 7 filed applications praying for eight weeks' more time to file replies, which were opposed by counsel for the petitioner. However, respondent No.1 allowed the applications and granted four weeks' more time, as a last opportunity, to respondents No. 3 to 7 to file replies and adjourned the matter to 16.8.2010. It is, thus, averred that respondent No.1 was repeatedly granting adjournments to the private respondents to file their replies and that this action of respondent No.1 was a perversion of the judicial role conferred upon him. In the written statements, the impugned orders, Annexures P-4 and P-7 have been defended as is the action of respondent No.1 in granting time to respondents No.3 to 7 to file replies. Apart from this, a preliminary objection has been raised that it is imperssible for this Court to intervene in a procedural aspect of this nature. Before proceeding to adjudicate the matter, it would be C.W.P No. 14194 of 2010 (O&M) ::5:: profitable to re-produce Paragraphs 4 and 6 of Tenth Schedule as well as Articles 122 and 212 of the Constitution of India, which read as follows :- “4. Disqualification on ground of defence not to apply in case of merger.-(1) A member of House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party __ (a) have become members of such other political party or as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger,such other political party 0or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub- paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. 6. Decision on questions as to disqualification on ground of defection.-(1) If any question arises as to whether a member of a house has become subject to disqualification under this Schedule,the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the house may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a house under this Schedule shall be deemed to be proceedings in parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State C.W.P No. 14194 of 2010 (O&M) ::6:: within the meaning of article 212. 122. Courts not to inquire into proceedings of Parliament.- (1) The validity of any proceedings in parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or Member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. 212. Courts not to inquire into proceedings of the Legislature.- (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.” With regard to the challenge to Annexures P-4 and P-7, learned counsel for the petitioner has argued that these orders clearly reveal that respondent No.1 has pre-decided the issue. He has relied upon Parkash Singh Badal and others v. Union of India and others, AIR 1987 Punjab and Haryana 263, wherein a Full Bench of this Court held as follows :- “40. Even if it may be accepted for the sake of argument that the filing of the application, Annexure P-1, before the Speaker gave rise to a question as to the disqualification of the petitioners and the Speaker was seized of the matter, the order, Annexure P-3, passed by him would be non est and ineffective so far as respondent No.7 is concerned. The principle of law is well established that an order passed in a given proceedings would not bind any person affected thereby who was neither party to those proceedings nor given an opportunity of being heard before passing the same. It was on the same principle that a Five Judges Bench of this Court in State of Haryana v Vinod Kumar, 1986(1) 89 Pun L.R 222 held an order of the Collector Agrarian to be ineffective and non est against the persons who were affected thereby but were neither party to the proceedings nor afforded any opportunity of being heard. C.W.P No. 14194 of 2010 (O&M) ::7:: The Fifty-Second Amendment has been enacted to prevent defections which necessarily means that it has been enacted primarily for the benefit of the political parties whose members constitute the House, though broadly speaking any citizen can invoke its provisions. The voluntary giving up of the membership of any political party would affect such a party and so would any order passed under para 6. Consequently an order passed under para 6 affecting adversely any political party would be ineffective and non est against it if no notice is iussued to it for opportunity of being heard afforded. By making a claim under para 3, the petitioners are deemed to have voluntarily given up the membership of the Shiromani Akali Dal on whose tickets they were elected. So, they were liable to be declared as disqualified from being members of the House. If their defence was to be accepted under para 3 and decision, as envisaged under para 6, to be made, the principles of natural justice would require a notice to be served on the President of the political party concerned. It has already been discussed above in detail that the Speaker would be a Tribunal while acting under para 6 and the proceedings before him of quasi-judicial nature. Any order passed by him under that paragraph without issuing notice or affording any opportunity of hearing to the interested party, therefore, would be non est and ineffective against such a party. As before passing the order, Annexure P-3, neither the political party nor any other person interested in the matter was heard, it would bind none and in that sense it can be said to be an order void ab initio. On both the grounds, therefore, the Speaker was justified in ignoring the order, Annexure P-3. However, the order dated July 4, 1986, Annexure P-8, has to be quashed because the claim of Shri Amrinder Singh that he has been elected leader of the splinter group could be disposed of only after the question of disqualification of the members of that group has been settled and their defence under para 3 upheld.” Learned counsel for the petitioner has also relied upon Jagjit Singh v. State of Haryana, AIR 2007 SC 590(1), particulary the following portions of paras 70 and 72, which read thus :- “70. xx xx xx xx. We think the Speaker is right. Such a split, if held to be valid for the purposes of paragraph 3, would defeat the very purpose of the law. The requirement is not the split of the local or State wing of original political party but is of original political party C.W.P No. 14194 of 2010 (O&M) ::8:: as defined in paragraph 1(c) of the Tenth Schedule read with the explanation in paragraph 2(1) to the effect that `an elected members of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.' 72. xx xx xx. Paragraph 1(c) defining original political party and explanation as given in paragraph 2(1) have already been noticed herein before. It is clear from a bare reading thereof that the elected member belongs to the political party by which he is set up as a candidate for election as such member. From the plain language of these provisions, it cannot be held that for the purposes of the split, it is the State Legislature party in which split is to be seen. If a member is set up by a National Party, it would be no answer to say that events at National level have no concern to decide whether there is a split or not. In case a member is put up by a National Political party, it is split in that party which is relevant consideration and not a split of that political party at the State level.” Learned counsel for the petitioner has further relied upon clause (b)(3) of rule 7 of the Rules, which is to the following effect :- “7(3)(b). Where such member belongs to any legislature party and such petition has not been made by the leader thereof, also to such leader and such member or leader shall, within seven days of the receipt of such copies, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the Speaker.” In my opinion, while passing an order under Paragraph 4, the Speaker is not enjoined to act as purely a judicial officer and to this extent the observations of the Hon'ble Supreme Court in the para extracted above, which laid down that an order of recognizing split/merger is not binding on a person who is not a party to it, would mitilate against the arguments of learned counsel for the petitioner. It must be noticed that both these cases arose from petitions under Article 191 and Paragraph 6 of the Schedule (supra). Thus, in my considered opinion, it can be safely held that an order under Paragraph 4 would necessarily be subject to an adjudication under C.W.P No. 14194 of 2010 (O&M) ::9:: Paragraph 6. The challenge to the orders, Annexures P-4 and P-7, is, thus, rejected. With regard to the second prayer, learned counsel for the petitioner has relied upon Mayawati v. Markandeya Chand, AIR 1998(7) SCC 517, and particularly paragraph 103 thereof, which is to the following effect :- “ 103. But I wish to add that it is absolutely necessary for every Speaker to fix a time schedule in the relevant rules for disposal of the proceedings for disqualification of MLAs or Mps. In my opinion, all such proceedings shall be concluded and orders should be passed within a period of three weeks from the date on which the petitions are taken on file.” Learned counsel has further placed reliance on Ram Bilas Sharma v. The Speaker, Haryana Vidhan Sabha, Chandigarh and another, 1997(3) PLR 318 and particularly paras 3, 4, 5 which are to the following effect :- “3. It is an admited case that the petitioner and the second respondent were elected to HaryanaVidhanSabha having beenset up by the original political partyBJP. On 17.7.1991, the second respondent has written to the Speaker of the Legislative Assembly tht as a result of the split in the Legislature party of the political party (BJP) another Legislature party in the name BJP(K) has come into being. He further averred that on account of ideological differences he has decided to form new Legislature party in the name and style of BJP(K). The letter written by the second respondent to the Speaker was reproduced in the impugned order Annexure P.7. It is nowhere statedtherein that there was any split in the original political party either at the national level or in the Haryana State unit of BJP. A reading of the letter clerly shows that because of the ideological differences he (second respondent) has decided to form a new legislature party in the name and style of BJP (K). In our view such a contentioncannot be accepted in view of the clear provisions contained in paragraph 3 of the 10th Schedule to the Constitution of India. 4. Paragraph 1(b) defines Legislature party as a group C.W.P No. 14194 of 2010 (O&M) ::10:: consisting of the members of the House for the time being belonging to that political party in accordance with the provisions of Paragraph 2, 3 and 4. According to paragraph 1(c) original political party in relation to a member of a House is the political party to which he belongs for the purpose of Sub paragraph 1 of paragraph 2. Paragraph 2(a) makes a member of the House disqualified if he has voluntarily given up his membership of such political party. Paragraph 3 is in the nature of exception to paragraph 3. It reads as follows:- ` Where a member of a House makes a claim that he and any other members of his Legislature party constitute the group representing a faction which has arisen as a result of the split in his original political party and such group consists of not less than one-third of the members of such Legislature party,- a) he shall not be disqualified under sub- paragraph (1) of paragraph 2'. Thus, in order to attract paragraph 3 there should be a split in the original political party and one-third members of the Legislature party of that political party constitutes the group representing the faction which splits away from the original political party, then only those members of that faction do not incur disqualification under sub- paragraph 1 of paragraph 2 of the 10th Schedule. In the case on hand it is not the claim of the second respondent that there was a split of his original political party either at the national level or at the state level. In the letter written by him to the Speaker on 17.7.1991 he only made a claim that due to ideological differences he wanted to form a separate legislature party. The main and essential ingredient for attracting paragraph 3 namely split in the original political party has not been pleaded or claimed in his letter written by the second respondent to the Speaker. In the absence of a split in the original political party, no member of that political party can claim to form a separate Legislature party. A legislature party is not a separate entity. It is only a wing within the original political party. We are, therefore, of the opinion that the second respondent cannot claim that he formed a separate Legislature party and that he did not incur disqualification because he alone consists more than one- third of the Legislature party of the original political party BJP. We are, therefore, of the opinion that paragraph 3 of the 10th Schedule is not attracted to the case of the second respondent and, therefore, the second respondent has given up his membership of the original political party namely BJP which set him up as a C.W.P No. 14194 of 2010 (O&M) ::11:: candidate to contest the election to the Legislative Assembly. We are, therefore, of the opinion that the order of the Speaker dated 10th April, 1992 cannot be sustained and the second respondent incurred disqualification from being a member of the Assembly. We accordingly quash the order of the Speaker of the Haryana Legislative Assembly and declare the second respondent as disqualified for being a member of Haryana Legislative Assembly. The disqualification of the second respondent will come into effect from the date of the order of the Speaker i.e 10th April, 1992. 5. The writ petition is accordingly allowed and the second respondent is declared disqualfied to be a member of Haryana Vidhan Sabha with effect from 10th April, 1992 and the necessary consequences will follow. However, there will be no order as to costs.” Both sides have also placed reliance on Kihoto Hollohan v. Zachillhu and others, 1992 Supp (2) SCC 651, wherein a Constitution Bench of the Hon'ble Supreme Court held as follows :- “ 111. In the result, we hold on contentions (E) and (F): That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justifiable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman as a judicial power. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non- compliance with Rules of Natural Justice and perversity, are concerned. That the deeming proviion in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as enderstood and explained in Keshav Singh case to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words `be deemed to be proceedings in Parliament' or `proceedings in the legislature of a State' confines the scope of the fiction accordingly. C.W.P No. 14194 of 2010 (O&M) ::12:: The Speakers/Chairmen while exercising powers and discharing functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions is that capacity are amenable to judicial review. However, having