[1] DBSAW 86/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (WRIT) NO. 86/2010 IN S.B. CIVIL WRIT PETITION NO. 13042/2009 SHRI KRISHNA Vs. STATE OF RAJASTHAN & ORS. Date: 15.03.2010 HON'BLE MR. JUSTICE K.S. RATHORE HON'BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Hemant Nahta, Advocate for the appellant. Mr. N.A. Naqvi ) Mr. Dinesh Yadav ), Additional Advocate General for the respondent No.1- State. Mr. Alok Sharma, Advocate for the respondent No.4. Mr. S.M. Mehta, Sr. Advocate with Mr. Anil Mehta, Advocate for the respondent No.5. Mr. A.K. Bhandari, Sr. Advocate with Mr. Kinshuk Jain, Advocate for the respondent No.6. Mr. R.N. Mathur, Advocate for the respondent No.7. Mr. A.K. Sharma with Mr. Vishnukant Sharma, Advocates for the respondent No.8. Mr. Kamlakar Sharma, Advocate for the respondent No.9. ***** REPORTABLE The present special appeal is directed against the order dated 18.12.2009 passed by the learned Single Judge in S.B. Civil Writ Petition No. 13042/2009, whereby the writ petition has been dismissed. 2. Brief facts giving rise to the present appeal are that six members (respondent Nos. 4 to 9 herein) of the 13th [2] DBSAW 86/2010 House of Rajasthan Assembly who were elected on the ticket and symbol of Bahujan Samaj Party (for short 'the BSP), passed a resolution on 04.04.2009 stating that they have merged the BSP into Indian National Congress (In Rajasthan Legislative Assembly) in terms of sub paragraph (1)(a) and 2 of paragraph (4) of Schedule X of the Constitution of India. Thereafter the aforesaid six MLAs filed an application dated 04.04.2009 before the Hon'ble Speaker, Rajasthan Vidhansabha along with said resolution claiming merger of the BSP into Indian National Congress (In Rajasthan Legislative Assembly) supported by their individual affidavits. 3. Hon'ble the Speaker passed an order dated 09.04.2009 exercising his jurisdiction in terms of Schedule X and thereby accepted the aforesaid claim of the six BSP MLAs and allowed them to merge into Indian National Congress (In Rajasthan Legislative Assembly) with the stipulation that they may now be treated as members of Indian National Congress. 4. Being aggrieved and dissatisfied with the order passed by the Hon'ble Speaker dated 09.04.2009, the appellant/petitioner preferred a writ petition before this Court which was registered as S.B. Civil Writ Petition No. 13042/2009 titled as Shri Krishna Vs. State of Rajasthan & Ors. . The said writ petition was listed before this Court on [3] DBSAW 86/2010 09.11.2009 and following submissions were made on behalf of the petitioner before the learned Single Judge:- “It is submitted by the learned counsel for the petitioner that the impugned order dated 09.04.2009 passed by the Hon'ble Speaker, Rajasthan Legislative Assembly, Jaipur is illegal and without jurisdiction. He has contended that the proceedings under Schedule X of the Constitution of India gets started before the Hon'ble Speaker only on a complaint being made before him that certain persons belonging to political party had incurred disqualification on the grounds of defection. Further, he has submitted that even Rule 6 of Rajasthan Assembly Members (Disqualification on the grounds of defection) Rules 1989 contemplates the making of an application to the Hon'ble Speaker when there is a complaint that some Member has voluntarily given up his Membership in the party. It is only then that in terms of schedule X, the Hon'ble Speaker is called upon to decide the question of disqualification raised before him in the context of Schedule X para 6 of the Constitution of India. In support of his submissions the learned counsel for the petitioner has placed reliance on the case of Rajendra Singh Rana versus Swami Prasad Maurya (2007) 4 SCC 270. It has also been contended that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under paragraph 6 (1) is not the decision of the House, nor is it subject to the approval by the House. Such decision by the Hon'ble Speaker operates independently of the House. Therefore, it has been submitted that the Speaker while exercising powers and discharging functions under the Xth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and his decision in that capacity is amenable to judicial review. In support [4] DBSAW 86/2010 of his submissions, the learned counsel for the petitioner has relied on the cases of Kihoto Hollohan versus Zachillhu, 1992 Supp. (2) SCC 651; Kashinath G. Jalmi (Dr.) versus The Speaker, (1993) 2 SCC 703; I. Manilal Singh versus H. Borobabu Singh (Dr.), 1994 Suppl.(1) SCC 718 and Raja Ram Pal versus Hon'ble Speaker Lok Sabha, (2007) 3 SCC 184.” 5. The learned Single Judge considering the submissions made on behalf of the petitioner and having gone through the judgments referred by the learned counsel for the petitioner, was of the opinion that the matter requires consideration and while admitting the petition, issued notices to the respondents. 6. Learned counsel Mr. Nahta, appearing on behalf of the appellant submits that despite the fact that notices have been issued by this Court giving 'dasti' to the learned counsel for the petitioner and made returnable within two weeks, the notices were not accepted by the Hon'ble Speaker, on the contrary, Hon'ble the Speaker instructed the officials of the Legislative Assembly not to issue gate pass to anybody who comes for serving the notices of the Hon'ble Court. 7. Upon perusal of the letter issued by the Secretary, Rajasthan Assembly, it appears that notices duly served upon the Hon'ble Speaker as the Secretary, Rajasthan Assembly [5] DBSAW 86/2010 informed the appellant that copy of the petition has not been attached to the notices served. All the parties are duly represented through their respective Counsel. 8. The learned Single Judge considering the relief claimed by the petitioner, which has been reproduced in the order impugned dated 18.12.2009 also, and having heard learned counsel for the petitioner Mr. Hemant Nahta, learned Advocate General Mr. G.S. Bapna and after going through the judgments and the relevant provisions of law referred by the respective parties thoroughly and precisely, considering para 6 of Schedule X to the Constitution of India and after carefully scanning the judgment rendered by the Hon'ble Supreme Court in the case of Rajendra Singh Rana Vs. Swami Prasad Maurya, reported in (2007) 4 SCC 270, more particularly paras 25 and 29, referred by the learned counsel for the petitioner, and other material available on the record, vide its order impugned dated 18.12.2009 observed as under:- “First of all, upon perusal of para 6 of the Tenth Schedule to the Constitution of India, I am of the opinion that as per the said para, only and only the Speaker is having jurisdiction to decide the question of disqualification and matter with regard to disqualification is required to be referred to the Speaker of the Assembly only. Here, in this case, it appears that in the order impugned the question with regard to disqualification is not in existence nor order impugned has been passed by the Speaker [6] DBSAW 86/2010 of the Assembly upon any complaint that six members of the BSP are disqualified. By the impugned order the Speaker has only accepted the decision of the members of the BSP who were elected as Members of the Legislative Assembly of Rajasthan and decided to merge their party with the Indian National Congress. Therefore, nothing has been adjudicated by the Speaker. It is only acceptance of a prayer by the Speaker and that order cannot be treated to a quasi judicial order which comes within the purview of judicial scrutiny. In this view of the matter, the facts of Rajendra Singh Rana's case are not applicable to this case. Moreover, the judgment cited by the applicant in its application reported in (2006) 11 SCC 1, Jagjit Singh Vs. State of Haryana is applicable in the present matter, in which, the apex Court has held that Speaker of the Assembly enjoys a very high status and position of great respect and esteem in the parliamentary traditions. He being the very embodiment of propriety and impartiality, has been assigned the function to decide whether a Member has incurred disqualification or not under Schedule X. Para 84 and 86 of the said judgment in Jagjit Singh's case (supra) run as under: “84. Before parting, another aspect urged before us deserves to be considered. However, at the outset, we do wish to state that the Speaker enjoys a very high status and position of great respect and esteem in the parliamentary traditions. He, being the very embodiment of propriety and impartiality, has been assigned the function to decide whether a Member has incurred disqualification or not. In Kihoto Hollohan judgment various great Parliamentarians have been noticed pointing out the confidence in the impartiality of the Speaker and he being above all parties or political consideration. The high office of the Speaker has been considered [7] DBSAW 86/2010 as one of the grounds for upholding the constitutional validity of the Tenth Schedule in Kihoto Hollohan case. 86. Whether to vest such power in the Speaker or Election Commission or any other institution is not for us to decide. It is only for Parliament to decide. We have noted this aspect so that Parliament, if deemed appropriate, may examine it, bestow its wise consideration to the aforesaid views expressed also having regard to the experience of last number of years and thereafter take such recourse as it may deem necessary under the circumstances.” Meaning thereby, for the purpose of disqualification, if the petitioner is aggrieved, then , he is required to approach the Speaker of the Assembly in view of para 6 of the Tenth Schedule. The petitioner cannot invoke jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Admittedly, two petitions are pending before the Speaker, one filed by the BSP and, second, by a citizen and out of these two petitions, in one, counsel for the petitioner himself is represented. Therefore, if the petitioner is aggrieved, then, he can also file petition before the Speaker for the purpose of declaring those Assembly members disqualified to be members of the Assembly. Though neither of the parties drew attention of the Court towards specific bar upon the Courts to exercise jurisdiction in respect of any matter connected with the disqualification of a member; but, there is specific bar in para 7 of the Tenth Schedule to the Constitution. Para 7 of the Tenth Schedule explicitly bars jurisdiction of the Court which reads as under: “7. Bar of jurisdiction.- Notwithstanding anything in this Constitution, no court [8] DBSAW 86/2010 shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.” In this view of the matter, while following the adjudication made by the Supreme Court in Jagjit Singh's case (supra) and provisions made by the framers of the Constitution under the Tenth Schedule to the Constitution of India, the application filed by respondent No.1 deserves to be allowed. Consequently, while allowing the application filed by respondent No.1, this writ petition is hereby dismissed with liberty to the petitioner to avail remedy before the Speaker of the Assembly who enjoys the jurisdiction for deciding question of disqualification of a Member of the Assembly.” 9. The said order dated 18.12.2009 passed by the learned Single Judge has been challenged by the appellant/ petitioner by way of present appeal on the ground that the Hon'ble Speaker was having no jurisdiction to pass the impugned order dated 09.04.2009 as per para 6(1) of Schedule X to the Constitution of India, which gives exclusive jurisdiction to the Speaker to decide the question of disqualification of a Member on the grounds of defection, more particularly, whether the Member has voluntarily given up the membership of his original political party, as provided in Para 2(1) of Schedule X to the Constitution of India and thereby incurred disqualification or not. [9] DBSAW 86/2010 10. It is contended on behalf of the appellant that the law of the land in respect of exercise of jurisdiction vesting in Speaker stand settled by the Hon'ble Supreme Court in the case of Rajendra Singh Rana (supra). 11. Again much emphasize has been given by the learned counsel for the appellant on paras 25 to 29 of the aforesaid judgment and after referring the aforesaid paras, learned counsel for the appellant further submits that in view of the ratio decided by the Hon'ble Supreme Court it is established that the Hon'ble Speaker has passed the order dated 09.04.2009 without jurisdiction because as on 09.04.2009 it is clear from the order itself that there was no petition before him seeking disqualification of respondent Nos. 4 to 9. Further, the order was also violative of the constitutional provisions and as any order passed without jurisdiction is to be held illegal, void ab-initio. 12. Learned counsel for the respective parties have referred para 2 of Schedule X to the Constitution of India, which speaks about Disqualification on ground of defection and the same reads as under:- “2. Disqualification on ground of defection.- (1) Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House- [10] DBSAW 86/2010 (a) if he has voluntarily gives up his membership of such political party; or (b) If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.- For the purposes of this sub- paragraph,- (a) an elected member 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; (b) a nominated member of a House shall,- (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. (3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his [11] DBSAW 86/2010 seat after complying with the requirements of article 99 or, as the case may be, article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,- (i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party; (ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, deemed to be a nominated member of the House for the purposes of sub- paragraph (3) of this paragraph. 13. Further para 4 of Schedule X to the Constitution of India provides for Disqualification on ground of defection not to apply in case of merger, which reads in the following terms:- “4. Disqualification on ground of defection not to apply in case of merger.- (1) A member of a 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 [12] DBSAW 86/2010 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 or 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.” 14. Learned counsel appearing for the respondents also referred paras 6 and 7 of Schedule X to the Constitution of India, which read as follows:- “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 [13] DBSAW 86/2010 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 within the meaning of article 212. 7. Bar of jurisdiction of courts.- Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.” 15. It is submitted by the learned counsel for the appellant that the order impugned passed by the Hon'ble Speaker dated 09.04.2009 is without jurisdiction. 16. By bare reading of sub-para (2) of para 4 of Schedule X to the Constitution of India, learned counsel for the appellant submits that 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 and in the present case, the original party BSP has not agreed to such merger into Indian National Congress and, in these circumstances, the aforesaid six MLAs elected on the ticket and symbol of the BSP cannot, at their whims, merge into Indian National Congress. 17. In support of his submissions, the learned counsel for the appellant placed reliance on the following judgments [14] DBSAW 86/2010 delivered by the Hon'ble Supreme Court:- (i) Kihoto Hollohan Vs. Zachillhu And Others, 1992 Supp (2) SCC 651. (ii) Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others (supra). (iii) Dr. Kashinath G. Jalmi And Another Vs. The Speaker And Others, (1993) 2 SCC 703. (iv) I. Manilal Singh Vs. Dr. H. Borobabu Singh And Another, 1994 Supp(1) SCC 718. (v) Jagjit Singh Vs. State of Haryana And Others, (2006) 11 SCC 1. (vi) Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd., (2001) 6 SCC 356. (vii) Powers, Privileges and Immunities of State Legislatures, Re v., (1965) 1 SCR 413: AIR 1965 SC 745. (viii) K. Venkatachalam Vs. A. Swamickan And Another, (1999) 4 SCC 526. (x) Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council And Others, (2004) 8 SCC 747. 18. The respondents have raised preliminary objection regarding maintainability of the writ petition as well as the present special appeal on the ground that the appellant/ petitioner is having no locus standi to challenge the order passed by the Hon'ble Speaker. It is also contended on behalf of the respondents that no averment whatsoever has been made in the writ petition as to how the appellant/petitioner is interested. It is also not averred by the appellant/petitioner that he casted his vote in favour of the BSP having impressed with its Manifesto. [15] DBSAW 86/2010 19. It is not disputed that the petition which has been filed by the petitioner, is not a Public Interest Litigation but a personal litigation without mentioning the fact in the writ petition as to how the order of the Hon'ble Speaker has adversely affect the valuable rights of the appellant/petitioner. Thus, the appellant/petitioner has no locus standi to file the writ petition as well as the present appeal. The BSP was only interested to challenge the order passed by the Hon'ble Speaker and a petition has already been filed by the BSP and the same is pending consideration before the Hon'ble Speaker. 20. It is contended on behalf of the respondents that the impugned order is nothing but the order on the application filed by all the six MLAs belonging to BSP as they opted merger into Indian National Congress party and the application was duly supported by their individual affidavits, therefore, the Hon'ble Speaker was having no option other than to accept the said application and a petition before the Hon'ble Speaker for seeking disqualification of such MLAs has been submitted by the BSP later on and the same is pending consideration, in which the appellant's Counsel Mr. Hemant Nahta himself is the Counsel. 21. The submissions made on behalf of the respondents have been strongly controverted by the learned [16] DBSAW 86/2010 counsel for the appellant Mr. Nahta submitting that he has not preferred the writ petition for seeking disqualification of the six BSP MLAs of the Rajasthan Legislative Assembly but only seeks to quash and set aside the order passed by the Hon'ble Speaker on 09.04.2009, which, in view of the ratio decided by the Hon'ble Supreme Court in the case of Rajendra Singh Rana (supra), is without jurisdiction. 22. He further submits that at the time of admission of writ petition, this Court having considered the ratio decided by the Hon'ble Supreme Court in the case of Rajendra Singh Rana (supra), vide order dated 09.11.2009 not only admitted the writ petition and issued notices to the respondents but also observed that the matter requires consideration, but at the time of decision of the writ petition, the order dated 09.11.2009 has not been considered by the learned Single Judge and has wrongly interpreted the ratio decided by the Hon'ble Supreme Court in the case of Rajendra Singh Rana (supra). 23. The specific submissions advanced by learned counsel Mr. R.N. Mathur, appearing on behalf of the respondent No.7 is that the writ petition was preferred by the petitioner seeking writ of mandamus in the following terms:- “It is therefore, humbly prayed that the Hon'ble Court