Case: Kashinath G. Jalmi &amp; Anr. Etc Vs. Speaker,Legislative Assembly Of Goa &amp;Ors

3. Ravi S. Naik, Ratnakar M. Chopdekar and Sanjay Bandekar were duly elected Members of the Goa Legislative Assembly in the elections held in November, 1989. On 25-1-1991, Ravi S. Naik assumed the office of the Chief Minister of the State of Goa and he formed his Council of Ministers, which included Chopdekar and Bandekar as Ministers. On the same day, i.e. on 25-1-1991, Dr. Kashinath Jalmi, also a Member of the Legislative Assembly, presented a petition to the Speaker, Surendra V. Sirsat seeking disqualification of Ravi S. Naik as a Member of the Legislative Assembly on the ground that he had voluntarily given up the Membership of his political party. On 15-2-1991, the Speaker, Surendra V. Sirsat passed an order under para 6 of the Tenth Schedule to the Constitution, disqualifying Ravi Naik on the ground of defection. On 16-2-1991, Ravi Naik filed writ petition No. 48 of 1991 at the Goa Bench of the Bombay High Court challenging the order of his disqualification, made by the Speaker under the Tenth Schedule to the Constitution. On 18-2-1991, the High Court passed an interim order in that writ petition staying operation of the order of disqualification made by the Speaker. During the pendency of this writ petition, on 27-2-1991, Simon Peter DSouza was elected Deputy Speaker of the Goa Legislative Assembly; on 4-3-1991 Surendra V. Sirsat was removed from the office of Speaker and the Deputy Speaker, Simon Peter DSouza began functioning as the Speaker in place of Surendra V. Sirsat. The same day, i.e. on 4-3-1991, Ravi S. Naik made an application to Simon Peter DSouza, the Deputy Speaker functioning as the Speaker of the Goa Legislative Assembly, for review of the order dated 15-2-1991 of his disqualification made by the Speaker, Surendra V. Sirsat under the Tenth Schedule. On 8-3-1991, the Acting Speaker, Simon Peter DSouza made an order, in purported exercise of the power of review under the Tenth Schedule, setting aside the order dated 15-2-1991 made by the Speaker, Surendra V. Sirsat disqualifying Ravi S. Naik as a Member of the Goa Legislative Assembly. Thereafter, Writ Petition No. 48 of 1991 filed by Ravi Naik challenging the order of his disqualification made by the Speaker on 15-2-1991 was dismissed as not pressed by him, on 22-4-1991.4. On 8-1-1992, Writ Petition No. 11 of 1992 was filed by Dr. Kashinath Jalmi and Ramakant Khalap challenging the order of review dated 8-3-1991 passed by the Acting Speaker, inter alia on the ground that the Speaker did not have any power to review the earlier order of disqualification made under the Tenth Schedule to the Constitution of India. High Court by the order dated 4-2-1992 upheld the preliminary objection of Ravi S. Naik that the writ petition filed ten months after the date of the impugned order was liable to be dismissed at the admission stage on the ground of laches. This order dismissing the writ petition for this reason alone, is challenged in Civil Appeal No. 1094 of 1992.5. After the dismissal of writ petition No. 11 of 1992, another Member of the Goa Assembly, Churchill Alemao filed writ petition No. 70 of 1992, also challenging the order of review dated 8-3-1991 made by the Acting Speaker setting aside the earlier order dated 15-2-1991 made by the Speaker disqualifying Ravi Naik, on similar grounds. The High Court dismissed writ petition No. 70 of 1992 also at the admission stage, for the same reason, on the ground of laches. Civil Appeal No. 1096 of 1992 by Churchill Alemao is against the order dated 24-2-1992 dismissing writ petition No. 70 of 1992.6. On 10-12-1990, Ramakant D. Khalap applied to the Speaker, Surendra V. Sirsat seeking disqualification of Sanjay Bandekar and Ratnakar Chopdekar as Members of the Goa Legislative Assembly, for defection under the Tenth Schedule. On 11-12-1990, the Speaker served notices on these Members. On 13-12-1990 Bandekar and Chopdekar filed writ petition No. 321 of 1990 at the Goa Bench of the Bombay High Court challenging the show cause notices issued to them by the Speaker. On the same day i.e. on 13-12-1990, the Speaker, Surendra V. Sirsat made the orders disqualifying Bandekar and Chopdekar as Members of the Assembly, under the Tenth Schedule. On 14-12-1990, Writ Petition No. 321 of 1990 was amended to challenge the orders of disqualification dated 13-12-1990 made by the Speaker against Bandekar and Chopdekar. The writ petition was admitted by the High Court, and an interim order staying the orders of disqualification dated 13-12-1990 made by the Speaker. Unlike the writ petition No. 48 of 1991 by Ravi Naik which was dismissed as not pressed on 22-4-1991 after the order of review made by the Deputy Speaker, writ petition No. 321 of 1990 by Bandekar and Chopdekar is still pending in the High Court with the interim order made therein subsisting.7. In the meantime, in a manner similar to that in the case of Ravi Naik, the Deputy Speaker functioning as the Speaker, on applications made to him for the purpose, passed orders on 7-3-1991, purporting to exercise the power of review, whereby the orders dated 13-12-1990 made by the Speaker disqualifying Bandekar and Chopdekar under the Tenth Schedule have been set aside. This led to the filing of writ petition No. 8 of 1992 by Ramakant D. Khalap on 7-1-1992 at the Goa Bench of the Bombay High Court, challenging the orders of review dated 7-3-1991 passed by the Acting Speaker. This writ petition also, has been similarly dismissed merely on the ground of laches on 4-2-1992. Civil Appeal No. 1095 of 1992 has, therefore, been filed against dismissal of writ petition No. 8 of 1992.8. This is how the same questions relating to laches justifying dismissal of these writ petitions, and the power of review, if any, of the Speaker under the Tenth Schedule, arise for decision in these appeals.

Reasoning:
11. Both sides attempted to refer to the facts leading to the making of the orders of disqualification of the Members, and the merits thereof. However, we do not propose to advert to them, as we had indicated to the learned counsel at the hearing, since those aspects will have to be gone into, in the first instance by the High Court, on the view we are taking in these appeals and, therefore, we would like to avoid the likelihood of any possible prejudice to either side resulting from any reference made by us to the same. Accordingly, we are confining ourselves only to the facts and the arguments relating to the aforesaid two questions, which alone arise before us. We may add, that for the purpose of these appeals, it has been assumed by both sides that the Deputy Speaker functioning as the Speaker would have the powers of the Speaker under the Tenth Schedule including that of review, if any. The further question whether the Deputy Speaker, while discharging the functions of the Speaker, has all powers of the Speaker under the Tenth Schedule is, therefore, undisputed for the present purpose.12. We shall now consider the aforesaid two main questions which arise for decision in the present case. Any further question arising for decision, in case both these questions are answered in favour of the appellants will be considered thereafter.LACHESThe High Court has taken the view that the impugned orders of review having been made by the Acting Speaker on 7th and 8th March, 1991, the writ petitions challenging them filed on 7-1-1992, 8-1-1992 and 10-2-1992 were highly belated and, therefore, liable to be dismissed merely on the ground of laches. It is for this reason that they were dismissed at the admission stage itself, sustaining the preliminary objection taken on this ground by Ravi S. Naik, Chopdekar and Bandekar, in whose favour the orders of review had been made. The High Court has referred to certain decisions of this Court for applying the doctrine of laches, and declined to consider the merits of the main point raised in the writ petitions, that the Speaker does not have any power of review acting under the Tenth Schedule. The High Court has also held as untenable, the explanation given by the writ petitioners that uncertainty of the law settled only by the decision of this Court in Kihoto Hollohan (1992 (1) SCC 309 : 1992 AIR SCW 3497) (supra) rendered on 12th November, 1991 was the reason for not filing those writ petitions earlier. Learned counsel for the appellants have assailed application of the doctrine of laches in the present situation, and also contended that if any explanation was needed for the intervening period, pendency of the question of constitutional validity of Tenth Schedule itself in this Court was sufficient to explain the period up to the date of that decision, and the writ petitions were filed soon thereafter. It was also submitted by learned counsel for the appellants, that the continuance in office of disqualified persons, even now, provides recurring cause of action, since the continuance in office without lawful authority of these persons, one of whom is the Chief Minister of the State of Goa, is against public policy and good administration. It was submitted, the Court cannot decline to examine the validity of the authority under which they continue to hold office. On this basis it was urged that the mere delay, if any, in challenging the legality of the authority under which these three persons continue to hold office, after being disqualified as Members of the Assembly could not be a valid justification for the High Court to refuse to examine the main question of existence of power of review of the Speaker acting under the Tenth Schedule, since the discretion of the High Court under Art.226 of the Constitution must be exercised judicially, so as not to permit perpetuation of an illegality. Shri Jethmalani also submitted that the doctrine of laches does not apply where declaration sought is of nullity, in order to prevent its continuing operation, and laches is not relevant in the domain of public law relating to public office, where the purpose is to prevent an usurper from continuing to hold a public office.In our opinion, the position remains the same. Emphasis in these decisions is on public interest and good administration, and the jurisdiction of the Court to extend time in suitable cases for making such an application. In Caswell, the House of Lords took into account the larger public interest for the view that the interest of good administration required non interference with the decision which was challenged after a lapse of a considerable time, since any interference at that stage, when third party interests had also arisen would be detrimental to good administration.33. In our opinion the exercise of discretion by the Court even where the application is delayed is to be governed by the objective of promoting public interest and good administration; and on that basis it cannot be said that discretion would not be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality.34. We may also advert to a related aspect. Learned counsel for the respondents were unable to dispute that any other member of the public, to whom the oblique motives and conduct alleged against the appellants in the present case could not be attributed could file such a writ petition even now for the same relief, since the alleged usurpation of the office is continuing, and this, disability on the ground of oblique motives and conduct would not attach to him. This being so, the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without seeking any relief personal to them, should not have been dismissed merely on the ground of laches. The motive or conduct of the appellants, as alleged by the respondents, in such a situation can be relevant only for denying them the costs even if their claim succeeds, but it cannot be a justification to refuse to examine the merits of the question raised therein, since that is a matter of public concern and relates to the good governance of the State itself.The further question now is of the availability of power of review in the Speaker under the Tenth Schedule.37. POWER OF REVIEWThe challenge to the orders dated 7th and 8th March, 1991 made by the Acting Speaker under the purported exercise of power of review, setting aside the earlier order of the Speaker disqualifying Ravi S. Naik, Chopdekar and Bandekar under the Tenth Schedule, is made by the appellants on the ground that the Speaker does not have any power of review under the Tenth Schedule. It was stated in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 thus (para 4)is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.This position is not disputed before us. Admittedly, there is no express provision conferring the power of review on the Speaker in the Tenth Schedule. The only question, therefore, is whether the Speaker acting as the authority under the Tenth Schedule has the power of review by necessary implication, empowering him to set aside the earlier order of disqualification made by him on merits.In Kihoto Hollohan there was no difference between the majority and minority opinions on the nature of finality attaching to the Speakers order of disqualification made under para 6 of the Tenth Schedule, and also that para 7 therein was unconstitutional in view of the non compliance of the proviso to clause 2 of Art.368 of the Constitution, by which judicial review was sought to be excluded. The main difference in the two opinions was that according to the majority opinion this defect resulted in the Constitution standing amended from the inception with insertion of the Tenth Schedule minus para 7 therein, while according to the minority the entire exercise of Constitutional amendment was futile and an abortive attempt to amend the Constitution, since Para 7 was not severable. According to the minority view, all decisions rendered by the several Speakers under the Tenth Schedule were, therefore, nullity and liable to be ignored. According to the majority view, para 7 of the Tenth Schedule being unconstitutional and severable, the Tenth Schedule minus para 7 was validly enacted and, therefore, the orders made by the Speaker under the Tenth Schedule were not nullity but subject to judicial review. On the basis of the majority opinion, this Court has exercised the power of judicial review over the orders of disqualification made by the speakers from the very inception of the Tenth Schedule, and the exercise of judicial review has not been confined merely to the orders of disqualification made after 12th November, 1991 when the judgment in Kihoto Hollohan (1992 (1) SCC 309 : 1992 AIR SCW 3497) was rendered. Venkatachaliah, J. (as he then was) wrote the majority opinion and, thereafter, on this premise, exercised the power of judicial review over orders of disqualification made prior to 12-11-1991. The basic fallacy in the submission made on behalf of the respondents that para 7 must be treated as existing till 12th November, 1991 is that on that view there would be no power of judicial review against an order of disqualification made by the Speaker prior to 12th November, 1991 since para 7 in express terms totally excludes judicial review.44. Accepting the submission of learned counsel for the respondents that para 7 must be read in the Tenth Schedule till 12th November, 1991 when the judgment in Kihoto Hollohan (1992 (1) SCC 309 : 1992 AIR SCW 3497) was rendered, for which submission they place reliance on the majority opinion in Kihoto Hollohan would amount to taking a view contrary to the decision in Kihoto Hollohan itself as indicated.The power of review which, it is suggested by counsel for the respondents, inheres in the Speaker by necessary implication has to be found in the provisions made in the Tenth Schedule alone, and not elsewhere. Para 7 has to be treated as non existent in the Tenth Schedule from the very inception, as earlier indicated. As held by the majority in Kihoto Hollohan (1992 AIR SCW 3497), judicial review is available against an order of disqualification made by the Speaker under para 6 of the Tenth Schedule, notwithstanding the finality mentioned therein. It is on account of the nature of finality attaching by virtue of para 6, that the judicial review available against the Speakers order has been labelled as limited in para 110 (at page 711 of SCC) of the decision in Kihoto Hollohan (1992 Supp (2) SCC 651) : (para 41 at 3551 of 1992 AIR SCW 3497), and the expression has to be understood in that sense distinguished from the wide power in an appeal and no more. As held in Kihoto Hollohan, the Speakers order is final being subject only to judicial review, according to the settled parameters of the exercise of power of judicial review in such cases, which it is not necessary to elaborate in the present context. The existence of judicial review against the Speakers order of disqualification made under para 6 is itself a strong indication to the contrary that there can be no inherent power of review in the Speaker, read in the Tenth Schedule by necessary implication. The need for correction of errors in the Speakers order made under the Tenth Schedule is met by the availability of judicial review against the same, as held in Kihoto Hollohan.49. In our opinion there is no merit in the submission that the power of review inheres in the Speaker under the Tenth Schedule as a necessary incident of his jurisdiction to decide the question of disqualification; or that such a power existed till 12th November, 1991 when the decision in Kihoto Hollohan was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable. error outside the scope of judicial review.50. CONSEQUENCEOn the above view taken by us, the orders dated 7th and 8th March, 1991 made by the Acting Speaker in purported exercise of the power of review are liable to be declared nullity and to be ignored, with the result that the orders dated 13th December, 1990 disqualifying Chopdekar and Bandekar and dated 15th February, 1991 disqualifying Ravi S. Naik as Members of Goa Legislative Assembly would continue to operate.51. Writ petition No. 321 of 1990 filed by Chopdekar and Bandekar challenging the orders of their disqualification is pending in the High Court wherein an interim order staying the operation of their orders of disqualification is subsisting. Chopdekar and Bandekar can pursue that remedy to challenge their disqualification and no further order is required to be made by this Court for that purpose.52. However, writ petition No. 48 of 1991 which was filed in the High Court by Ravi S. Naik challenging his disqualification, wherein also. an interim order was made staying the operation of the order of his disqualification was not pressed by Ravi S. Naik after the order in purported exercise of power of review was made in his favour on 8th March, 1991 and, therefore, that writ petition was dismissed as not pressed on 22-4-1991. The question is of the order, if any, required to be made by this Court in this situation.Having given our anxious consideration to the matter we have no doubt that the fact of Ravi S. Naik being the Chief Minister of the State of Goa is a wholly irrelevant circumstance for this purpose. All the same an order which would be just and proper to make in the circumstances of this case has to be made, taking into account also the fact that the law was declared and came to be settled only by the decision of this Court in Kihoto Hollohan (1992 AIR SCW 3497), after the making of the orders of review by the Acting Speaker in the present case, whereafter writ petition No. 48 of 1991 was dismissed as not pressed. We have no doubt that Art. 142 of the Constitution enables us, if necessary, to enlarge the powers of this Court for making an order which would be just in the facts and circumstances of this case.55. In our opinion, it would be appropriate to revive writ petition No. 48 of 1991 for hearing on merits by the High Court as suggested even by Shri Ram Jethmalani, and so also order interim stay of the operation of the order of disqualification dated 15-2-1991 made by the Speaker, which was the situation prevailing till that writ petition was dismissed as not pressed. It is, however, necessary that writ petition No. 48 of 1991 and also writ petition No. 321 of 1990 should be heard and disposed of at the earliest, on account of their expediency.