Balchandra L Jarkiholi & Ors vs B.S.Yeddiyurappa & Ors

3. On 6th October, 2010, all the above-mentioned 13 members of the Karnataka Legislative Assembly, belonging to the Bharatiya Janata Party, hereinafter referred to as the "MLAs", wrote identical letters to the Governor of the State indicating that they had been elected as MLAs on Bharatiya Janata Party tickets, but had become disillusioned with the functioning of the Government headed by Shri B.S. Yeddyurappa and were convinced that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution and that Shri Yeddyurappa had forfeited the confidence of the people as the Chief Minister of the State. Accordingly, in the interest of the State and the people of Karnataka, the legislators expressed their lack of confidence in the 4 Government headed by Shri B.S. Yeddyurappa and withdrew their support to the said Government. The contents of one of the aforesaid letters dated 6th October, 2010, are reproduced hereinbelow :

Five independent MLAs also expressed lack of confidence and withdrew support to the Government led by Shri B.S. Yeddyurappa.

4. On the basis of the aforesaid letters addressed to him, the Governor addressed a letter to the Chief Minister, Shri B.S. Yeddyurappa, on the same day (6.10.2010) informing him that letters had been received from 13 BJP MLAs and 5 independent MLAs, withdrawing their support to the Government. A 6 doubt having arisen about the majority support enjoyed by the Government in the Legislative Assembly, the Governor requested Shri Yeddyurappa to prove that he still continued to command the support of the majority of the Members of the House by introducing and getting passed a suitable motion expressing confidence in his Government in the Legislative Assembly on or before 12th October, 2010 by 5 p.m. In his letter he indicated that the Speaker had also been requested accordingly. On the very same day, Shri B.S. Yeddyurappa, as the leader of the BJP Legislature Party in the Karnataka Legislative Assembly, filed an application before the Speaker under Rule 6 of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, being Disqualification Application No.1 of 2010, praying to declare that all the said thirteen MLAs elected on BJP tickets had incurred disqualification in view of the Tenth Schedule to the Constitution.

6. It also appears that replies were submitted by the Appellants to the Speaker on 9th October, 2010 indicating that having come to learn from the media that a Show-Cause notice had been issued as per the orders of the Speaker and had been pasted on the doors of the MLA quarters in the MLA hostels at Bangalore, which were locked and used by the legislators only when the House was in session, they had the contents of the notices read out to them on the basis whereof interim replies to the Show-Cause notices were being submitted. In the interim replies filed by the Appellants on 9th October, 2010, it was categorically indicated that the interim reply was being submitted, without prejudice and by way of abundant caution, as none of the documents seeking disqualification had either been pasted on the doors of the MLA quarters 9 or forwarded to the Appellants along with the Show-

Cause notice. Similarly, a copy of the Governor's letter, which was made an enclosure to the Show-

Cause notice, was also not pasted on the doors of the residential quarters of the Appellants or otherwise served on them personally. A categorical request was made to the Speaker to supply the said documents and the Appellants reserved their right to give exhaustive replies after going through the aforesaid enclosures to the Show-Cause notice as and when supplied.

7. Having said this, the Appellants submitted that the notice was in clear violation of the Disqualification Rules, 1986, and especially Rules 6 and 7 thereof. It was mentioned that Rule 7(3) requires copies of the petition and annexures thereto to be forwarded with the Show-Cause notice.

It was the categorical case of the Appellants that the minimum notice period of 7 days was a requirement of the basic principles of natural justice in order to enable a MLA to effectively reply to the Show-Cause notice issued to him seeking his disqualification from the Legislative Assembly. It was mentioned in the reply to the Show-Cause notice that issuance of such Show-Cause notice within a truncated period was an abuse and 11 misuse of the Constitutional provisions for the purpose of achieving the unconstitutional object of disqualifying sufficient number of Members of the Assembly from the membership of the House in order to prevent them from participating in the Vote of Trust scheduled to be taken by Shri B.S. Yeddyurappa on the Floor of the House at 11 a.m. on 11th October, 2010. It was contended that the Show-

Cause notices was ex-facie unconstitutional and illegal, besides being motivated and mala fide and devoid of jurisdiction.

11. The Speaker took up the Disqualification Application No.1 of 2010 filed by Shri B.S. Yeddyurappa, the Respondent No.1 herein, along with the replies to the Show-Cause notices issued to the thirteen MLAs, who had submitted individual letters to the Governor indicating their withdrawal of support to the Government led by Shri Yeddyurappa.

Except for Shri M.P. Renukacharya and Shri Narasimha Nayak, all the other MLAs were represented by their learned advocates before the Speaker. It was noticed during the hearing that 15 Shri Renukacharya had subsequently filed a petition stating that he continued to support the Government and also prayed for withdrawal of any action proposed against him. He reiterated his confidence in the Government headed by Shri Yeddyurappa and alleged that a fraud had been perpetrated at the time when the individual letters were submitted to the Governor and that he had no intention of withdrawing support to the Government in which he had full confidence. A similar stand was taken on behalf of Shri Narasimha Nayak also. In addition to the above, an affidavit along with supporting documents, affirmed by one Shri K.S. Eswarappa, State President of the Bharatiya Janata Party (B.J.P.) was filed and it was taken into consideration by the Speaker. On the basis of the above, the following two issues were framed by the Speaker :

12. Answering the aforesaid issues, the Speaker arrived at the finding that after having been elected from a political party and having consented and supported the formation of a Government by the leader of the said party, the respondents, who are the Appellants herein, other than Shri M.P. Renukacharya and Shri Narasimha Nayak, had voluntarily given up their membership of the party by withdrawing support to the said Government. In arriving at such a conclusion, the Speaker took into consideration the allegations made by Shri Yeddyurappa that after submitting their respective 17 letters to the Governor withdrawing support to the Government, the said respondents had gone from Karnataka to Goa and other places and had declared that they were a separate group and that they were together and that they had withdrawn their support to the Government. The Speaker also took personal notice of statements alleged to have been made by the Appellants and observed that they had not denied the allegations made by Shri Yeddyurappa that they had negotiated with the State Janata Dal, its members and leader, Shri H.D. Kumaraswamy, regarding formation of another Government. In support of the same, the Speaker relied on media reports and the affidavit filed by Shri Eswarappa.

17. The Speaker then took note of the retraction by Shri M.P. Renukacharya and Shri Narasimha Nayak, indicating that they had no intention of 22 withdrawing support to the Government led by Shri Yeddyurappa and that they extended support to the party and the Government and their elected leader.

The Speaker also relied on the affidavit filed by Shri K.S. Eswarappa and on considering the same, arrived at the decision that the said two MLAs were not disqualified under the Tenth Schedule of the Constitution. As far as the Appellants are concerned, the Speaker held that in view of the reasons stated and the factual background, he was convinced that they were disqualified from their respective posts of MLAs under paragraph 2(1)(a) of the Tenth Schedule of the Constitution.

23. The Chief Justice also rejected the allegations of mala fide on account of the speed with which the Speaker had conducted the disqualification 29 proceedings within five days i.e. one day ahead of the Trust Vote which was to be taken by Shri Yeddyurappa on the Floor of the Assembly. The Chief Justice, accordingly, found no merit in any of the contentions raised on behalf of the Appellants and holding that the order of the Speaker did not suffer from any infirmity, dismissed the Writ Petitions filed by the Appellants.

32. On the basis of the said reference, the matter was referred to the Hon'ble Mr. Justice V.G. Sabhahit, who by his judgment and order dated 29th October, 2010, concurred with the decision rendered by the Chief Justice upholding the order passed by the Speaker. As a result, the majority view in the writ petitions was that the Hon'ble Speaker was justified in holding that the Appellants herein had voluntarily resigned from their membership of the Bharatiya Janata Party by their conduct, which attracted the provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution and were 43 rightly disqualified from the membership of the House.

82. On 25th January, 1991, President's Rule was revoked and Shri Ravi S. Naik was sworn in as Chief Minister of Goa. On the same day, one Dr. Kashinath G. Jhalmi, belonging to the Maharashtrawadi Gomantak Party, filed a petition before the Speaker for Shri Naik's disqualification on the ground of defection. Simultaneously with the above, the Speaker, Shri Sirsat, was removed from the Office and was replaced by the Deputy Speaker who began to function as Speaker in his place. Shri Bandekar and Shri Chopdekar filed an application before the Deputy Speaker for review of the order dated 13th December, 1990, by which they had been disqualified from the membership of the House. The same was allowed by the Deputy Speaker by his order dated 7th 106 March, 1991, and the earlier order dated 13th December, 1990, was set aside. Similarly, Shri Ravi Naik also filed an application for review of the order dated 15th February, 1991, which was allowed by the Deputy Speaker by his order of 8th March, 1991. The said two orders passed by the Deputy Speaker were challenged by way of Writ Petitions which were allowed and the orders passed by the Deputy Speaker on 7th and 8th March, 1991, were held to be void. Consequently, the Writ Petitions filed by Shri Bandekar and Shri Chopdekar and by Shri Ravi S. Naik stood revived with a direction for disposal of the same on merits. The Writ Petitions were ultimately dismissed against which two appeals were filed.

(iii) Whether the Speaker's order impugned herein is mala fide?

compliance with the principles of natural justice?

What is commonly known and referred to as Ravi S. Naik's case is, in fact, a decision in respect of the two Civil Appeals, namely, Civil Appeal No.2904 of 1993 filed by Ravi S. Naik and Civil Appeal No.3309 of 1993 filed by Shri Sanjay Bandekar and Shri Ratnakar Chopdekar. There is a certain degree of similarity between the facts of the latter appeal and this case. At the relevant time, the Congress (I) initially formed the Government with 104 the support of one independent member.

The said question was answered in Shri Ravi Naik's favour and his appeal was allowed and the order of his disqualification from the House was set aside.

The Speaker ignored the claim of the Appellants to be given reasonable time to respond to the Show-

Extraneous considerations are writ large on the face of the order of the Speaker and the same has to be set aside.

94. The Appeals are, therefore, allowed. The order of the Speaker dated 10th October, 2010, disqualifying the Appellants from the membership of the House under paragraph 2(1)(a) of the Tenth Schedule to the Constitution is set aside along 124 with the majority judgment delivered in Writ Petition (Civil) No.32660-32670 of 2010, and the portions of the judgment delivered by Justice N. Kumar concurring with the views expressed by the Hon'ble Chief Justice, upholding the decision of the Speaker on the Disqualification Application No.1 of 2010 filed by Shri B.S. Yeddyurappa.

Consequently, the Disqualification Application filed by Shri B.S. Yeddyurappa is dismissed.

95. There will be no order as to costs.