SCA/16631/2007 1/61 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16631 of 2007 WITH CIVIL APPLICATION NO.9248 OF 2007 IN SPECIAL CIVIL APPLICATION No. 16631 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE DN PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JAGDISHBHAI THAKORE & 1 - Petitioners Versus CHANDRIKABEN CHUDASMA & 3 - Respondents ========================================================= Appearance : MR N.D.NANAVATI, SENIOR COUNSEL WITH MR HARIN P RAVAL FOR THE PETITIONERS. MR S.N.SHELAT, SENIOR COUNSEL WITH Mr.P.S.CHAMPANERI FOR RESPONDENT NOS.1 - 2. NONE FOR RESPONDENT NO.3. MR SUNIT SHAH, LEARNED GOVERNMENT PLEADER WITH MR MAULIK NANAVATI, AGP for Respondent No.4. MR KAMAL TRIVEDI, LEARNED ADVOCATE GENERAL WITH MS SANGEETA VISHEN, AGP FOR RESPONDENT NO.5. ========================================================= CORAM : HONOURABLE MR.JUSTICE DN PATEL Date : 25/07/2007 SCA/16631/2007 2/61 JUDGMENT ORAL JUDGMENT The present petition has been preferred for a writ of mandamus or any other appropriate writ, order or direction against the Speaker of State Legislative Assembly of State of Gujarat for the reason that the Speaker of the House has not allowed the presentation of the report given by Public Accounts Committee on the table of the House of Legislature. 2. An important question has been raised for the adjudication of this Court to the effect that : Whether the Speaker of the House of Legislature can be directed by this Court to allow presentation of report of the Public Accounts Committee on the table of the House, in pursuance of Gujarat Legislative Assembly Rules, enacted by the State under Article 208 of the Constitution of India, to be read with directions issued by the Speaker under Gujarat Legislative Assembly Rules, especially under Rule No.56 read with Rule No.183? 3. Facts of the Case: Public Accounts Committee passed a resolution on 24th March,2006 to the effect that a draft of the report has been prepared and the same is sent to the Speaker of the House for his approval. Similar is a resolution dated 28th March,2006 to the effect that the draft report is ready and is yet to be finalized. On 19th June,2006, the SCA/16631/2007 3/61 JUDGMENT Speaker of the House returned the draft report given by Public Accounts Committee and pointed out that the same is not in consonance with the Gujarat Legislative Assembly Rules enacted under Article 208 of the Constitution of India. It was suggested that Public Accounts Committee cannot consider the accounts upon which no report is given by Comptroller and Auditor General. The report of Public Accounts Committee cannot travel beyond Rule No.197 of Gujarat Legislative Assembly Rules, enacted under Article 208 of the Constitution of India. Nothing happened thereafter for considerably longer period after 19th June,2006. On 14th March,2007, issue was raised in the proceedings of the Legislature of the State. Point of order was raised by the members of Legislative Assembly and ruling thereupon has been given by the Speaker to the effect that the report given by the Public Accounts Committee is dehors the report of the Comptroller and Auditor General of India. Ruling has been given by the Speaker of the House. Minutes of the proceedings dated 14th March,2007 have been presented before this Court along with an affidavit-in reply filed by Mr.D.M. Patel, Secretary, Gujarat State Legislative Assembly, Gandhinagar. After a period of approximately 4 months i.e. on 10th July,2007, this petition has been filed before this Court seeking a writ of mandamus or SCA/16631/2007 4/61 JUDGMENT any other appropriate writ, order or direction upon Speaker. On 16th July,2007, the same unsigned draft report of the Public Accounts Committee was sent by the new Chairman (respondent No.2) to the Speaker of the House. The said draft unsigned and undated report was returned by the Speaker of the House to the Chairman of the Public Accounts Committee by pointing out that the suggestions made by the Speaker dated 19th June,2006 have not been carried out by the Public Accounts Committee. Thus, what was sent before one year, the same was the position even in the month of July,2007, so far as the nature of the report of the Public Accounts Committee is concerned. The notice was already issued on 6th July,2007 by this Court in this writ petition. Thus, sending of draft report on 16th July,2007 was during the course of hearing of this petition. On 18th July,2007 again report was sent. It is submitted by Learned Advocate General of the State that on this report also, the Speaker has made the same endorsement and it has been returned to Public Accounts Committee for complying with the provisions of Rule 197 of Gujarat Legislative Assembly Rules enacted for the proceedings in the House under Article 208 of the Constitution of India. The controversy appears regarding placing the report before the House, given by Public Accounts Committee which covers certain points, on which, SCA/16631/2007 5/61 JUDGMENT no report of the Comptroller and Auditor General of India has been given, especially on “Sujlam-Suflam Yojna”. “Sujlam-Suflam Yojna” is pertaining to broadly for : (a) Khet talavadi; (b) Check dam; (c) to supply water of river Narmada to dams of North Gujarat; (d) to construct canals from Kadana dam. 3.1 The report was given by the Comptroller and Auditor General of India for the years 1993-94, 1994-95 but there was no report of the Comptroller and Auditor General for the year 2005-06 and, therefore, Public Accounts Committee cannot give any report of accounts for the year, for which no report was given by Comptroller and Auditor General of India. This controversy has given birth to the present petition. The issue involved in this petition is basically pertaining to powers, privileges and immunities of the House of the Legislature of the State under Article 194 of the Constitution of India to be read with Articles 208 and 212 of the Constitution of India. These articles are referred hereinafter at length along with judicial interpretations. This Court has issued notice only to the respondent Nos.4 and 5. Respondent No.5 is a Secretary, SCA/16631/2007 6/61 JUDGMENT Gujarat State Legislative Assembly. In fact, voluntarily respondent Nos.1 and 2 appeared through a Learned Senior Advocate, after the hearing of the petition has been started. Though Notices were not issued to respondent Nos.1 and 2, this Court has heard the Learned Advocate appearing for respondent Nos.1 and 2 and his submissions on the constitutional provisions have been referred hereinafter. 4. Public Accounts Committee - Constitution, Function and its control : As per Rule 196, Public Accounts Committee is constituted. It shall consist of not more than 15 members who will be elected by the Assembly. Minister cannot be a member. Functions of the Committee is given under Rule 197. So far as control upon the Committee is concern, it is govern by Rule 2(c), 183, 186 of Gujarat Legislative Assembly Rules to be read with direction No.23 issued by the Speaker in exercise of powers given by Rule 183 of Gujarat Legislative Assembly Rules enacted under Article 208 of the Constitution of India. Under the Constitution of India, separate are the powers, privileges and immunities of the legislature, Judiciary and Executives. One of such Articles is Article 194 of the Constitution of India, which is akin to the fundamental rights of the SCA/16631/2007 7/61 JUDGMENT State Legislatures. Every House of the legislature and the members of the Committees thereof have their own powers, privileges and immunities for the smooth functioning of the House of the Legislature. House has power to enact Rules for its own procedure. These Rules of procedure are Rules for governing its business in the House and by the House. Article 208 of the Constitution of India, empowers House of Legislature of the State to make Rules for regulating, its procedure and conduct of its business. 4.1 In pursuance of this Article 208 of Constitution of India, the State Legislative Assembly of the Gujarat has enacted Rules and they are known as “Gujarat Legislative Assembly Rules”. They came into force from 1st of January,1966. These Rules prescribe detailed procedure and conduct of the business of the State legislature. Under Part-XV, there are general Rules pertaining to different types of Committees. As per these general Rules, especially under Rule 183 read with Rule 186, a Committee shall function under the general control and supervision of the Speaker and the Speaker may from the time to time issue such direction as he may consider necessary for efficient working of the Committee or for regulating its procedure and for organization of its SCA/16631/2007 8/61 JUDGMENT work. 4.2 In pursuance of this Rule 183 to be read with Rule 186 of the Gujarat Legislative Assembly Rules, the Speaker of the House has issued several directions and as per direction No.22, the report to be presented to the House must be approved by the Committee and must be signed by its Chairman or any other authorized members of the Committee and as per direction No.23 issued by the Speaker of the House for the efficient working of the Committee or for regulating its procedure or for organization of its work to the effect that before the report is presented to the House, it shall be submitted to the Speaker for its information and for such orders as he may deem fit to give thereon. 4.3 It appears from this direction No.23 read with Rules 183 and 186 of the Gujarat Legislative Assembly Rules, a direction was given on 19th June,2006 by the Speaker of the House to the Public Accounts Committee that its report is dehors the provisions of Gujarat Legislative Assembly Rules, especially in breach of Rule No.197(1) of Gujarat Legislative Assembly Rules and, therefore, draft report of Public Accounts Committee was sent back. Rule 197(1) of Gujarat Legislative Assembly SCA/16631/2007 9/61 JUDGMENT Rules, reads as under: “197(1) The committee shall consider the Appropriation Accounts and the Finance Accounts of the State and the report of the Comptroller and Auditor General of India thereon. The Committee may also consider- (i) such other Accounts laid before the House as the committee may think fit; (ii)such matter as is specially referred to it by the House or the Speaker.” (Emphasis supplied) 4.4 A contention has been raised by the learned counsel for the petitioner as well as learned counsel for respondent Nos.1 and 2 that the Speaker cannot sit in appeal against the report given by the Public Accounts Committee and a Chairman of the Committee can present the report before the House, as per Rule 177 of the Gujarat Legislative Assembly Rules as well as under direction No.22 issued by the Speaker of the House as well as under Rules of procedure (internal working) of the Public Accounts Committee, especially Rule No.24 thereof. In other words, it was their contention that Public Accounts Committee is not working under Speaker. This attractive contention raised by the learned counsel for the petitioners and by learned counsel for respondent Nos.1 and 2, is not accepted by this Court, mainly for the SCA/16631/2007 10/61 JUDGMENT reason that looking to the definition of word “Committee” given under Rule 2(c) of the Gujarat Legislative Assembly Rules, the Speaker has direct control upon the Committee. Rule 2(c) of the Gujarat Legislative Assembly Rules, reads as under: “2(c) “Committee” means a committee of the members of the House appointed or elected by the House or nominated by the Speaker and which works under the directions of the Speaker.” (Emphasis supplied) 4.5 Rule 56 of Gujarat Legislative Assembly Rules defines General Powers of the Speaker, it reads as under: “Rule 56. General Powers of Speaker. - All matters not specifically provided for in these rules and all questions relating to the detailed working of these rules shall be regulated in such manner as the Speaker may, from time to time direct. (Emphasis supplied) Thus, even if the members of the Committee have been appointed by the House or elected by the House or nominated by the Speaker, there is a control of the Speaker upon the Committee and the Committee is working under the direction of the Speaker. Looking to the provisions of Part-XV, which are general provisions for all the Committees, Rules 183 and 186 thereof, read as under: SCA/16631/2007 11/61 JUDGMENT “183. Power of Speaker to give directions. - (1) A committee shall function under the general control and supervision of the Speaker and subject to these rules the Speaker may, from time to time issue such directions as he may be consider necessary, for the efficient working of the committee or for regulating its procedure and organization of its work. (2) If any doubt arises on any point of procedure or otherwise, the Chairman may refer the point to the Speaker whose decision shall be final. 186. Applicability of general rules to all committees.- Subject to the special provisions made in these rules in respect of any committee the general rules in this part shall apply to all committees.” (Emphasis supplied) Thus, as per Rule 183 to be read with Rule 186, the Speaker of the House can issue directions to the Committee - (i) for its efficient working; (ii) for regulating its procedure; and (iii)for organization of its work. This is also a rule of procedure fixed by the House for its own smooth working under Article 208 of the Constitution of India read with Article 212 of the Constitution of India. The aforesaid Rule 183 has been enacted to carry out functions in the House. What should SCA/16631/2007 12/61 JUDGMENT be the procedure to conduct the business of the House, is left to the House itself. There may be some deviation or departure in following procedure in the House. Generally, there is no scope for judicial review for irregularities alleged in the proceedings in the House. The contention has also been raised by the learned counsel for the petitioners as well as learned counsel for respondent Nos.1 and 2 that the decision has been taken by Speaker not in the House but in the chamber of the Speaker and, therefore, no immunities can be claimed as per Article 212 of the Constitution of India. This contention is also not accepted by this Court. Looking to the definition given as per Section 2(n) of precincts of the House, which reads as under: 2(n) “Precincts of the House” means and includes the Chamber, the Lobbies, the Galleries and such other places as the Speaker may from time to time specify.” (Emphasis supplied) Thus, as per the aforesaid definition, the “precincts of the House” includes the chamber, the lobbies, the galleries and such other places as the Speaker may from time to time specify. Thus, the decision is taken by the Speaker in the chamber and, therefore, is not immuned under Article 212 of the Constitution of India. This attractive argument is devoid of any merits. SCA/16631/2007 13/61 JUDGMENT The decision has been taken by the Speaker as stated hereinabove upon a draft report given by Public Accounts Committee, which is unsigned and undated in pursuance of the powers vested in the Speaker for regulating the procedure of the Committee under Rule 183 to be read with Rule 186 to be read with direction No.23 issued by the Speaker. Direction No.23 issued by the Speaker in pursuance of Rules 183 read with 186 of Gujarat Legislative Assembly Rules, reads as under: “23. Before a report is presented to the House it shall be submitted to the Speaker for his information and for such orders as he may deem fit to give thereon.” (Emphasis supplied) 4.6 The Speaker of the House is regulating the business of the House. Speaker holds an important and ceremonial office. Speaker/Chairman holds pivotal position in the scheme of Parliamentary democracy and is the guardian of rights and privileges of the House. Speaker's office is undoubtly very high and has considerable aura with the attribute of impartiality. Primary function of Speaker is to regulate the conduct of business and procedure of the Assembly. Looking to the powers given to the Speaker under the Gujarat Legislative Assembly Rules, I am clearly of the opinion that the Public Accounts Committee is working directly under the SCA/16631/2007 14/61 JUDGMENT supervision and control of the Speaker of the House and the Speaker of the House has all powers and privileges to issue directions from time to time for the efficient working of the Committee, for regulating its procedure and organization of its work. Rule 177 or direction No.22 or rule of procedure No.24 for the internal working of the Public Accounts Committee cannot be given over-riding effect upon general power of the Speaker given under Rule 183 to be read with Rule 56 and Rule 2(c). Right from the definition of word “Committee”, it is clear that “Committee” means a committee of members appointed or elected by the House or nominated by the Speaker AND which works under the direction of the Speaker. Thus, the argument, which is canvassed before this Court that the Chairman of the Public Accounts Committee can present the report before the House without getting any direction from the Speaker, is running counter to and in contradiction with the Rules enacted by the House for conducting its own business. What is contended before this Court is that the Speaker of the House cannot give a direction for pruning the report. This contention, for the reasons stated hereinabove is running counter to and in contradiction with the Gujarat Legislative Assembly Rules, especially Rule 183 to be read with Rule 186 to be read with limited sphere of work assigned to the Public SCA/16631/2007 15/61 JUDGMENT Accounts Committee under sub-rule (1) of Rule 197 to be read with direction no.23 issued by the Speaker. Pruning of report of any Committee is permissible by the direction of Speaker of the House, especially when Speaker is acting as per direction no.23, issued under Rule 183 of Gujarat Legislative Assembly Rules. Apart from the fine nicety of the aforesaid Rules, even prima facie, these Rules and directions are governing the proceedings in the Legislature as per Article 208 of the Constitution of India and, therefore, as per Article 212 of the Constitution of India, validity of any proceedings in the legislature of the State cannot be called in question on the ground of alleged irregularities. 5. Which report is to be tabled before legislature: It is strenuously argued by learned counsel for the petitioners as well as learned counsel for respondent Nos.1 and 2 that whatever report is given by the Chairman of the Committee, ought to be tabled before the House. Looking to the provisions of the Rules i.e Gujarat Legislative Assembly Rules, a report must be signed by the Chairman or by any authorized member of the Committee, as per Rule 175(3) as stated hereinabove. As per Rule 2(c) of Gujarat Legislative Assembly Rules, Committee is always working under the supervision and SCA/16631/2007 16/61 JUDGMENT control of the Speaker. Such powers have been given under Rule 183 of the Gujarat Legislative Assembly Rules, to the Speaker of the House and even he has a power to issue direction. Direction No.22 issued by the Speaker, reads as under: 22. The report to be presented to the House shall be as approved by the Committee and signed by its Chairman or any other member of the Committee authorised by it to sign it on its behalf.” (Emphasis supplied) Thus, a report to be presented to the House, must be approved by the Committee and must be signed by the Chairman of the Committee or must be signed by any authorized member of the Committee. As per direction No.23, before any report is presented before the House, the Speaker being a navigator of the proceedings in the House must be informed about this report. As per direction No.23, it has been accepted by the State Legislature as proceeding in the House that the report of the Committees shall be submitted to the Speaker for his information and for such orders as he may deem fit to give thereon. This is also a nature of proceedings adopted by the House itself, whether members of the Public Accounts Committee like or not. It is not the wish and will of the members of the Public Accounts Committee to be considered, but, the Court is concerned SCA/16631/2007 17/61 JUDGMENT with the procedure adopted by the House for conducting its business in the House. Every House as stated hereinabove, has it own powers, privileges and immunities. Article 194(3) of the Constitution of India is like a fundamental right of the State Legislature. To fortify these powers, privileges and immunities, further powers have been given to the House under Article 208 of the Constitution of India so that they can frame their own Rules to conduct business in the House (these are the rules known as Gujarat Legislative Assembly Rules). Constitution has given further immunities to strengthen the efficient work in the House, that even if there are irregularities in following the procedure for conducting business in the House, as per sub-article (1) of Article 212 of the Constitution of India, the validity of the proceedings in the House shall not be called in question on the ground of alleged irregularities of the procedure. In the facts of the present case, I see no irregularity in the proceedings. Looking to the facts of the present case, there is no deviation or departure in the proceedings, by the Speaker of the House. The Speaker of the House has meticulously followed the procedure adopted by the legislature, especially direction No.23 read with Rule 183 read with Rule 186 of the Gujarat Legislative Assembly Rules, but as stated hereinabove, as SCA/16631/2007 18/61 JUDGMENT per Article 212(1), even if there is an irregularity, in my opinion, there is no scope for judicial review for testing the proceedings in the House. For the proceedings in the four walls of the House, the best Judge is the House itself, except where the Speaker of the House is acting as a Tribunal. At length, learned counsel for the petitioners as well as learned counsel for respondent Nos.1 and 2 and Advocate General with Government Pleader of the State have taken this Court, to the fine niceties of powers to be exercised in the judicial review for the proceedings taken in the House. As a general rule, even if there is an irregularity, in any proceedings in the legislature, no writ is tenable under Article 226 of the Constitution of India. Every rule has its own exceptions. The aforesaid general rule, is no exception, to this. But exceptions are exceptions and general rule is to be followed in normal situations. Exceptions i.e. cases in which judicial review of decision of Speaker is permissible, have been discussed hereinafter. In the facts of the present case, Learned Advocate General of the State has presented original file and the resolutions of the Public Accounts Committee, which reveal the fact that on 24th March and 28th March,2007, the report of the Public Accounts Committee was in draft format and was not finally approved by the Committee. Looking to the SCA/16631/2007 19/61 JUDGMENT original file, in which, the Speaker has made endorsement and given direction on 19th June,2006, the report was returned by the Speaker to Public Accounts Committee. It appears that again the same report was submitted by Public Accounts Committee to the Speaker in a draft format, it was unsigned and it was undated. It was received by Speaker on 16th July,2007. It was returned by the Speaker on the same day. In the