Topic: Ravi S. Naik vs Union of India

Ravi S. Naik vs Union Of India
Equivalent citations: 1994 AIR 1558, 1994 SCR (1) 754 - Bench: Agrawal, S.C. (J), Venkatachalliah, M.N.(Cj) - Citation: 1994 AIR 1558 1994 SCR (1) 754, 1994 SCC Supl. (2) 641 JT 1994 (1) 551, 1994 SCALE (1)487 - 9 February, 1994

Judgment:

The Judgment of the Court was delivered by S.C. AGRAWAL,    J.-These appeals are directed    against the judgment of the High Court of Bombay, Panaji Bench dated May 14, 1993 in Writ Petition Nos. 48 of 1991 and 321 of 1990. They raise questions    relating to disqualification of a Member    of the State Legislature under Article    191(2)    read with Tenth Schedule to the Constitution.

2. Elections for the Goa Legislative Assembly were held in November 1989.     The Assembly is composed of    40 members. After the elections the position of the parties was as under:


Congress (1)-     20

Maharashtrawadi Gomantak Party (MGP)-    18

Independents-     2

3.With    the support of one independent member, the Congress (1) formed the Government. After a short    time seven members    left the Congress (1) and formed the    Goan People's Party     (GPP).     GPP and MGP    formed    a coalition Government under the banner of Progressive Democratic Front (PDF). At first Churchill Alemao became the Chief Minister but later on Dr Luis Proto Barbosa was sworn in as the Chief Minister. On December 4, 1990, MGP withdrew its support to the PDF Government and thereupon on December    6, 1990, a notification was issued summoning the Assembly on December 10, 1990 and the Chief Minister Dr Barbosa, was required to seek a vote of confidence. Before the Assembly could    meet Dr Barbosa tendered his resignation as the Chief Minister on December 10, 1990 and the same was accepted.    On December 10, 1990, Dr Wilford D'Souza, leader of the Congress     (1) Legislature Party staked his claim to form the     Government. He claimed the support of 20     members consisting of 13 members of the Congress (1), 4 members of GPP and 2 members of MGP, who would form a common front known as the Congress Democratic Front (CDF). Two members     of MGP, who    were included in the CDF, were Sanjay Bandekar and Ratnakar Chopdekar, appellants    in CA No. 3309    of 1993. Ramakant Khalap, who was the leader of the PDF claimed support of 16 members of MGP and three members who were formerly with GPP. The Governor submitted his report dated December 11,    1990 and taking into consideration the said report as well as other information received by him, the President of India issued a Proclamation dated December 14, 1990 under Article 356 of     the Constitution whereby the President's rule     was imposed     in the State and the Legislative Assembly     was suspended.

4.In the meanwhile, on December 10, 1990, Ramakant Khalap filed two separate petitions under Article 191(2) of     the Constitution before the Speaker of the State     Legislative Assembly whereby he sought that both Bandekar and Chopdekar be disqualified as members of the State Legislature on the ground of defection under Article 191(2) read with paragraph 2(1)(a)     and    2(1)(b)     of the Tenth Schedule to     the Constitution. By order dated December 13, 1990, the Speaker Shri Surendra Vir Sirsat, declared both these appellants as disqualified from being members of the Goa     Legislative Assembly under     Article 191(2) of the Constitution on     the ground    of defection as set out in paragraph    2(1)(a)     and 2(1)(b)     of the Tenth Schedule to the    Constitution.    Both these members filed a writ petition (Writ Petition No.     321 of 1990) in the High Court on December 13, 1990. The    said writ petition     was amended on December 14, 1990     to incorporate a challenge to the order dated December 13, 1990 passed    by the Speaker. In the said petition     an interim order was passed by the High Court staying the operation of the order dated December 13, 1990 with     regard     to disqualification of the said members.

5.On January 25, 1991, the Proclamation with regard to the President's rule was revoked and Ravi S. Naik, appellant in CA No. 2904 of 1993, was sworn in as the Chief Minister. On January 25, 1991 one Dr Kashinath G. Jhalmi belonging to the MGP filed a petition    before     the Speaker     for disqualification of Naik on the ground of defection under Article 191(2) read with para 2(1)(a) of

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the Tenth Schedule to the Constitution. On the    said petition the Speaker, Shri Sirsat, passed an order dated February 15, 1991 declaring Naik as disqualified from being a member of the Goa Legislative Assembly under Article 191(2) of the Constitution on the ground of defection as set out in     paragraph 2(1)(a) of the Tenth Schedule to     the Constitution. Naik filed a writ petition (Writ Petition No. 48 of    1991) in the Bombay High Court, Panaji Bench to challenge the said order of disqualification dated February 15, 1991.

6.While the aforesaid writ petitions were pending in the High Court Shri Sirsat was removed from the office of Speaker     and the Dy.    Speaker     began    functioning as     the Speaker     in his place. Bandekar and Chopdekar filed applications for review of the order dated December 13, 1990 with regard to their disqualification and the    said review applications were allowed by the Dy. Speaker functioning as Speaker     by his order dated March 7, 1991 and    order dated December 13, 1990 disqualifying Bandekar and Chopdekar     was set aside. Ramakant D. Khalap filed a writ petition (Writ Petition No. 8 of 1992) before the High Court     of Bombay, Panaji Bench, Goa challenging the said order of review dated March 7, 1991.    The said writ petition was dismissed on     the ground of leaches by the High Court on February 4, 1992. CA No. 1095 of 1991 was filed in this Court against the    said judgment of the High     Court.     Similarly Naik filed an application for review of the order dated February 15,    1991 which was allowed by the Dy. Speaker functioning as Speaker by order dated March 8, 1991. Writ Petition No. 11 of    1992 was filed by Dr Jhalmi and Ramakant Khalap in the High Court challenging the said order of review dated March 8,    1991 passed by the Acting Speaker and the said writ petition     was dismissed by the High Court on the ground of laches by order dated February 4, 1992. CA No. 1094 of 1992 was filed in this Court against the said order of the    High Court. Another     writ petition     (No. 70 of 1992) was filed by Churchill Alemao against the said order of     the Acting Speaker dated March 8, 1991 which was also dismissed by     the High Court by order dated February 15, 1991 on the ground of laches and CA No. 1096 of 1992 was filed by Churchill Alemao in this Court against the said order of the High Court.     All the three appeals (CA No. 1094-96 of 1992) were allowed by this Court by judgment dated March 31, 1993 (Dr Kashinath G. Jhalmi    v. Speaker] ). By the said judgment, this Court     set aside the impugned orders of the High Court dated February 4, 1992, dismissing Writ Petition Nos.    11 and 8 of 1992 and the order of    the High Court     dated    February 24, 1992, dismissing Writ Petition No. 70 of 1992 and allowing     the said writ petitions this Court has declared    that orders dated March 7, 1992 and March 8, 1992 made by     the Acting Speaker     in purported exercise of the power of     review     are nullity     and liable to be ignored. It was held that     the orders    dated December     13, 1990 passed by    the Speaker disqualifying Chopdekar and Bandekar and the    order dated February 15, 1991 passed by the Speaker disqualifying    Naik continue to operate and that Writ Petition No. 321 of    1990 filed by Bandekar and Chopdekar and Writ Petition No. 48 of 1991 filed by Naik would stand revived and the same would be disposed of by the High Court on merits. Thereafter     the High Court heard the two writ petitions on merits and by judgment dated May 14, 1993 both the writ petitions    have been dismissed.     Hence these appeals.

1 (1993) 2 SCC 703

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7. We propose to deal with the appeals separately because the questions involved are not identical, but before we do so, we     will briefly refer to the provisions of the Tenth Schedule to the Constitution and the decision of this Court in Kihoto Hollohan v. Zachillhu2. The Tenth Schedule     was introduced in the Constitution by the Constitution (Fifty- second Amendment) Act, 1985. As stated in the Statement of Objects     and Reasons, the said amendment was introduced to combat    the evil of political     defections. It has    been stated:

"The evil of political defections has been a matter of national concern. If     it is     not combated,     it is likely to undermine the    very foundations of     our democracy and     the principles which sustain it.     With this object, an assurance was given in the Address by the President to Parliament that     the Government intended to     introduce in     the current    session     of Parliament     an anti- defection     Bill.     This Bill is     meant     for outlawing     defection and fulfilling the above assurance."

8.The provisions of the Tenth Schedule apply to members of either House of Parliament or the State     Legislative Assembly or, as the    case may be, either House of     the Legislature of a State. Paragraph 2 of the Tenth Schedule makes provision for disqualification     on the ground of defection. Sub-paragraph (1) deals with a member belonging to a political party.    It provides for disqualification in two situations, viz., (i) if he has voluntarily given up his membership of such political party; and (ii) 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. Paragraph 3 removes the bar of disqualification in case of split in     a political party provided the group representing a faction which has arisen as a result of split consists of not less than one-third of the members of such legislature party.    Paragraph 4 removes the bar of disqualification on the ground of defection in a case of merger of a political party with another political party.    In sub-paragraph (1) of paragraph 6 the question as to whether a    member    of a House has     become     subject to disqualification under     the Schedule    is required to 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.     Under     sub-paragraph    (2) of     paragraph 6,     all proceedings under sub-paragraph (1)    of paragraph 6 in relation to any question as to disqualification of a member of a House under the Schedule are to 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. Paragraph 7    bars the jurisdiction of all courts in respect of     any matter connected with the disqualification of a member of a House under the Schedule. Paragraph 8 empowers the    Chairman or the Speaker of a House to make rules for giving effect to the provisions of the Schedule and such rules    may provide for matters specified in clauses (a) to (d) of    subparagraph (1).

9.The constitutional validity of the provisions contained in the     Tenth Schedule came up for consideration before a Constitution Bench of this Court in

2 1992 Supp (2) SCC 651

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Kihoto    Hollohan v. Zachillhu2.     The Court was unanimous in holding that paragraph 7 completely excludes jurisdiction of all courts including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 in respect of     any matter connected with the disqualification of the member of a House and the Bill introducing the said amendment required ratification by the State Legislatures under the proviso to Article     368(2)     of the Constitution    and that no    such ratification was obtained for the Bill.     There was, however, difference of opinion on the effect of such non-ratification of the Bill. The majority view was that paragraph 7 alone attracts the proviso to Article 368 and the rest of     the provisions of the Bill do not require such ratification     and since paragraph 7 is severable from the rest of     the provisions, paragraph 7 only was unconstitutional and    that the rest of the provisions of the Tenth Schedule cannot be struck down as unconstitutional on the ground that the    Bill had not been ratified by one-half of the State    Legislatures before    it was presented to the President for    his assent. The minority view, however,    was that the    entire    Bill required prior ratification by State Legislatures without which the assent of the President became non est and    that the question of severability of paragraph 7 from the rest of the provisions does not arise and further that paragraph 7 was not severable from the rest of the provisions of     the Bill.    Since the validity of the rest of the     provisions, excluding paragraph 7, have been upheld by the majority, the provisions of    paragraph 6 have been construed in     the majority judgment and it has been held: (SCC pp. 711-712, para 111)

"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-justiciable constitutional    area.     The power to resolve such disputes vested in     the Speaker or Chairman is 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 provision 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 understood     and explained in Keshav Singh case3 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. The Speakers/Chairmen while exercising powers and discharging    functions under the Tenth Schedule    act as Tribunal adjudicating rights and obligations under the Tenth Schedule     and their decisions in that capacity are amenable to judicial review.

However,    having regard to the Constitutional Schedule    in the     Tenth    Schedule, judicial- review should not cover any stage prior to the making of

3     Special Reference No. 1 of 1964, (1965) 1 SCR 413: AIR 1965 SC 745

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a decision by the Speakers/Chairmen. Having regard to the constitutional intendment    `and the status of    the repository of    th e

adjudicatory power, no quit times actions     are permissible, the only    exception for     any interlocutory interference being cases     of interlocutory disqualifications or suspensions which may have grave, immediate     and irreversible repercussions and consequence."

10.We would now proceed to deal with the appeals. CA No. 3309 of 1993:

11.This     appeal has been filed by Bandekar and     Chopdekar who were elected to the Goa Legislative Assembly under     the ticket of MGP.    They have been disqualified from membership of the Assembly under order of the Speaker dated December 13, 1992 on the ground of defection under paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the judgment of the High Court it appears that disqualification on the ground of paragraph 2(1)(b) was not pressed    on behalf of     the contesting respondent and disqualification was sought on the ground    of paragraph 2(1)(a)    only.    The said paragraph provides for disqualification     of a    member    of a House belonging to a political party "if he has voluntarily given up his     membership of such political    party".     The words voluntarily given up his membership" are not synonymous with "resignation and have a wider connotation. A     person     may voluntarily give up his membership of a political party even though    he has     not tendered    his resignation from     the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn    from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.

12.The petitions that were filed by Ramakant D. Khalap for disqualification of both these appellants are identical. The following     averments were made     with     regard     to disqualification on ground of defection under paragraph 2(1)(a)     of the Tenth Schedule as contained in paragraph 11 of the said petitions:

"The petitioner    says and submits that    both before the Assembly session and also after the Assembly     session, the respondent     has voluntarily accompanied Dr Luis Proto Barbosa to the Governor and has told the Governor that he does not support the MGP any    longer.     He had also made it known to the public that he has voluntarily resigned from the membership of the MGP. The respondent has thereby voluntarily given up the membership of     the MGP. He     has in the circumstances for    that reason also incurred disqualification under Article 191(2) read with para 2(1)(a) of     the Tenth Schedule of the Constitution of India."

13.The replies that were filed by both the appellants were also identical.     In the saidreplies it was stated: "Factually I have not given up the membership of the MGP voluntarily or otherwise. I still continue to be a member of the said party     and in fact no document has been produced by     the complainant and nothing has been disclosed to show that I have resigned from the membership of the party." The reply to para II is as follows:

"...the mere fact that I am accompanying Mr Barbosa does not entail my disqualification, which I    do not     accept     that I told     His Excellency the Governor that I do not support the Maharashtrawadi Gomantak Party and

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perhaps much more devoted than Mr Khalap. I also deny emphatically that I made it known to anybody that I had voluntarily resigned    from the membership of the Maharashtrawadi Gomantak Party. You know very well Sir, that I    have been allotted a meeting as a member of     the Maharashtrawadi Gomantak Party and I have     not asked any change in the seating on account of the fact that I have resigned from the party. In fact the complainant has not produced as he could not produce any documents to establish the facts that I have resigned,     resignation from the membership could only be evidenced by a written document. The burden is on the part of the complainant to establish this fact. In the absence of it the complaint should be summarily     dismissed. Contents    of para II which are not    specifically admitted     are denied."

14. The Speaker, in his order dated December 13, 1990, has observed:

"Dr Jhalmi produced before me     copies     of several newspapers showing photos of the     two MLAs with Congress (1) MLA and Dr Barbosa etc. when they had met the     Governor, with Dr Wilfred D'Souza who had taken them to    show that he had the support of 20 MLAs. This fact is well known in Goa and the Governor himself has admitted it.    Dr Jhalmi said that both the MLAs have given up the membership of their political party and have said so openly to him and others.

The reply filed by the two MLAs does not    deny the fact     that they went to the Governor against the Maharashtrawadi Gomantak Party. The Advocate appearing for the MLAs said    that he wanted to lead evidence. But, although both the MLAs were present before me, their Advocate    did not make them give evidence. They did     not deny that     they supported Dr Wilfred D'Souza in his effort to form Congress (1) Govt. and went with him to the Governor as part of    the 20 MLAs. They could not do so because it is a fact of common knowledge     all over Goa that these two MLAs have left their political party.

I am satisfied that by their conduct, actions and speech they have voluntarily given up     the membership of the MGP."

15.The    High Court was of the view that in view     of their conduct     the appellants were not entitled to invoke     the discretionary remedy of writ of certiorari. In this regard the High Court has pointed out that the assertion by     the appellants in the writ petition that they were in Bombay on December 9, 1990 is a brazen lie since the report of     the Governor dated December 11, 1990 made to the President of India (which has been placed on record by Khalap with     his affidavit) refers to     the formation     of the Congress Democratic Front by resolution adopted at Panaji on December 9, 1990 and the said resolution which was Annexure 1 to     the said report contained the signatures of the appellants.     The High Court has also observed that the statement in     the petition that the appellants are still members of the parent party is false and suppression of truth inasmuch as    they allowed this assertion to continue when, in effect, as    from January     1991,    they joined the faction of Naik     and became Ministers in his Cabinet and they continue     to be     the Ministers.

16.The    High Court has also examined the matter on merits and has found that the order dated December 13, 1990 passed by the Speaker does not suffer from any infirmity which     may justify limited judicial review in accordance with     the decision in Kihoto Hollohan case2. The High Court     has rejected the

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contention that the said order was passed in breach of     the constitutional    mandate     for the reason that     there     was contravention     of the Goa Legislative Assembly (Disqualification on Grounds of Defection) Rules, 1986, hereinafter referred to as 'the Disqualification Rules', made by the Speaker under paragraph 8 of the Tenth Schedule. The High Court was also    of the view     that     the Disqualification Rules made by the Speaker could not be held to be part of constitutional mandate and that they are    only to regulate the procedure and that the substantive power or authority is given in paragraph 6 of the Tenth Schedule. According to the High Court violation    of Disqualification Rules would only constitute an irregularity in procedure which is protected by paragraph 6(2) of the Tenth Schedule. The High Court also rejected the contention that there     was violation of the principles of natural justice on account of extraneous materials     or circumstances, namely,     the newspapers showing photographs of the appellants    with Congress (1) MLAs and Dr Barbosa when they had met     the Governor with Dr Wilfred D'Souza who had taken them to    show that he had the support of 20 MLAs and the observation in the order passed by the Speaker that the Governor had told the Speaker that the appellants belonging to the MGP     had approached him under the leadership of Dr Wilfred D'Souza for staking claim to form Government on December 10, 1990, being considered by the Speaker in the impugned order.     The High Court has observed that the Speaker has    only relied upon the photos of the MLAs published in the newspaper reports which fact was undeniable inasmuch as the appellants have nowhere in their replies and even in the writ petition denied    that they had met the Governor in the company of 18 other MLAs under the leadership of    Dr Wilfred D'Souza representing the Congress (1) and splinter group of GPP     led by Dr Barbosa. According to the High Court,    when, as a fact, the appellants have admitted of having gone to     the Governor to stake the claim in the afternoon of December 10, 1990, it was impossible to hold that the order be held as suffering from     the vice of the order being     based    upon extraneous material and circumstances. Dealing with     the grievance of the appellants that no opportunity was given to them to lead evidence, the High Court has held that the said submission was baseless since the Speaker in his order     had recorded that    although both the appellants were present before    him their advocate did not make them give evidence. The High Court has observed that nothing prevented the appellants from leading their own evidence when it was their case that they wanted to lead evidence.     In this context the High Court also pointed out that neither in their reply     nor in the arguments before the Speaker    the appellants     had indicated whose evidence they wanted to lead and record or what sort of evidence they wanted to bring. The High Court has also mentioned that when Dr Jhalmi made    a statement before    the Speaker that the appellants had given up their membership of their political party and had said so openly to him     and to others, neither the appellants nor their advocate sought to cross-examine Dr Jhalmi on    this statement.

17.Shri A.K. Sen, the learned Senior Counsel appearing for the appellants in support of the appeal, has assailed     the order of the Speaker dated December 13, 1990 on the    same grounds which were urged on behalf of the appellants before the High Court. He has invited our attention to sub-rules (5) and (6) of Rule 6 and sub-rules (2) and (3) of Rule 7 of the Disqualification Rules which provide as under: 652

"6. Reference to be by petitions.-

(5) Every petition,-

(a) shall contain a concise statement of the material facts on which the petitioner relies; and

(b) shall be accompanied by copies of     the documentary evidence, if any, on which     the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and addresses of such persons and the list of such information     as furnished by each    such person.

(6)Every    petition shall be signed by the petitioner and verified in the    manner    laid down in    the Code of Civil Procedure,    1908 (Central Act 5 of 1908), for the    verification of pleadings.

7. Procedure.-

(2) If the petition does not comply with the requirements of    Rule 6,     the Speaker shall dismiss    the petition    and intimate     the petitioner accordingly.

(3)If the petition complies with the requirements of    Rule 6,     the Speaker shall cause copies of     the petition    and of     the annexures thereto to be forwarded,-

(a) to    the member in. relation to whom     the petition has been made; and

(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."

18.The    submission of Shri Sen is that the petitions that were filed by Khalap before the Speaker did not fulfill     the requirements of clause (a) of subrule (5) of Rule 6 inasmuch as the said petition did not contain a concise statement of the material facts on which the petitioner (Khalap)     was relying and further that the provisions of clause (b) of sub-rule (5) of Rule 6 were also not complied with inasmuch as the     petitions were not accompanied by copies of     the documentary evidence on which the petitioner was relying and the names and addresses of the persons and the list of    such information as furnished by each such person.    It was    also submitted that the petitions were also not verified in     the manner    laid down in the Code of Civil     Procedure for     the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the    said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Shri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the     Speaker for exercising the power conferred on     him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the     Constitution.     The Disqualification Rules    are, therefore, procedural    in nature and any violation of     the same would amount to an irregularity in procedure which is immune    from judicial scrutiny in view of sub-paragraph     (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case2.    Moreover,

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the field of     judicial review in respect of     the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto     Hollohan case2 is confined to breaches of the constitutional mandates,    mala fides,    noncompliance with Rules of Natural    Justice     and perversity. We are unable to uphold the contention of    Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the     Constitution which is     impermissible.     Since     the Disqualification Rules have been framed by the     Speaker in exercise of the power conferred under paragraph 8 of     the Tenth Schedule     they have a    status    subordinate to     the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be    regarded as constitutional     mandates and any    violation of     the Disqualification Rules does not afford a ground for judicial review    of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of     the Tenth Schedule as construed by this Court in Kihoto Hollohan case2.

19.Shri     Sen has next     contended that there     has been violation of principles of natural justice inasmuch as in disregard of    the provisions     of Rule 7(3)(b) of     the Disqualification Rules which provides for the comments being forwarded by the member concerned to the Speaker within a period    of seven days of the receipt of the copy of     the petition and annexures thereto; the appellants were given only two days' time to file their reply to the petition. Shri Sen has urged that there has been violation of     the principles of natural justice also for the reason that in the impugned order the Speaker has referred     to certain extraneous materials and circumstances, namely, the copies of the newspapers that were produced by Dr Jhalmi at     the time of hearing and the talks which the Speaker had with the Governor. Another grievance raised by Shri Sen was that the appellants were denied the opportunity to adduce their evidence before the Speaker passed the impugned order.

20.Principles of natural justice have an important place in modern Administrative Law.     They have been     defined to mean "fair play in action". (See:Maneka Gandhi v. Union of India4, Bhagwati, J.) As laid down by this Court:"They constitute the     basic elements of a fair hearing, having their roots in the innate sense of man for fair play     and justice which is not the preserve of any particular race or country but is shared in common by all men" (Union of India v. Tulsiram Patel5 ). An order of an authority exercising judicial or quasijudicial functions passed in violation of the principles     of natural justice is     procedurally ultra vires and, therefore, suffers from a jurisdictional error. That is the reason why in spite of the finality imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject    to judicial review on the ground of non-compliance with rules of natural justice. But    while applying the principles     of natural justice, it must be    borne in mind that "they are     not immutable but    flexible" and they are not cast in a rigid mould and they cannot be put in a legal strait-jacket. Whether     the requirements of    natural     justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case. 4 (1978) 1 SCC 248, 286: (1978) 2 SCR 621, 676 5 (1985) 3 SCC 398, 470: 1985 SCC (L&S) 672: 1985    Supp (2) SCR 131, 225

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21. The approach of the English courts has been thus summed up by Prof. Wade:

"The judges, anxious as always    to preserve some freedom of manoeuvre, emphasise that     'it is not possible to lay down rigid rules as to when the principles of natural justice are to apply :    nor as to their     scope    and extent. Everything depends on the subject-matter'. 'The so-called rules of natural justice     are not engraved on tablets     of stone'. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject- matter of the case. 'In the application of the concept of fair play there must be    real flexibility'. There must also have been    some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice."

(H.W.R. Wade: Administrative Law, 6th Edn., p. 5 30)

Similarly Clive Lewis has stated:

"The fact that the applicant has suffered no prejudice as a result of the error complained of may be a reason for refusing    him relief. It is necessary to keep in mind the purpose of the public law principle that has     technically been violated, and ask whether that underlying purpose has in any event been achieved in     the circumstances of the case. If so, the courts may decide that     the breach has caused no injustice or prejudice and there is no need to grant relief.

The courts may, for example, refuse relief if there has been a breach of natural justice but where the breach has in fact not prevented the individual from having a fair hearing."

[Clive Lewis: Judicial Remedies in Public     Law (1992) p. 290]

In the words of Lord Wilberforce:

"A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts,    unless behind it there is something of substance which has been lost by the failure. The court does not act in vain." [Malloch    v. Aberdeen Corpn.6 All ER at p. 1294]

22.The    approach of the courts in India is no    different. In A.M. Allison v. B.L Sen7, it has been laid down    that while exercising the jurisdiction under Article 226 of     the Constitution the High Court has the power to     refuse     the writs if it was satisfied that there has been no failure of justice.

23.The grievance of the appellants regarding violation    of the principles of natural justice has to be considered in this light.

24.It is no doubt true that under Rule 7(3)(b) of the Disqualification Rules, it has been     provided that     the members     concerned can forward their comments in writing on the petitions within seven days of the receipt of the copies of the petition and the annexures thereto and in the instant case the appellants were given only two days' time     for submitting their replies. The appellants, however, did submit their replies to the petitions within the said period and the said replies were quite detailed. Having regard to the fact that there was no denial by the appellants of     the allegation in paragraph 11 of the petitions    about their having

6 (1971) 2 All ER 1278

7 1957 SCR 359: AIR 1957 SC 227: (1957) 1 LLJ 472 655

met the Governor on December 10, 1990 in the company of Dr Barbosa     and Dr Wilfred D'Souza and other Congress (1)    MLAs and the only dispute was whether from the said     conduct of the appellants an inference    could be drawn that     the appellants had voluntarily given up their leadership    (sic membership) of     the MGP, it    cannot    be said that     the insufficient time given for    submitting the     reply has resulted in denial of adequate opportunity to the appellants to controvert    the allegations contained in the petitions seeking disqualification of the appellants.

25.As regards    the reference to the newspapers in the impugned order     passed by the Speaker it appears that     the Speaker, in his order, has only referred to the     photographs as printed in the newspapers showing the appellants    with Congress (1) MLAs and Dr Barbosa, etc. when they had met the Governor with Dr Wilfred D'Souza who had taken them to    show that he had the support of 20 MLAs. The High Court     has rightly     pointed out that the Speaker, in referring to     the photographs was drawing an inference about a fact which     had not been denied by the appellants themselves,     viz., that they had met the Governor along with Dr Wilfred D'Souza     and Dr Barbosa on December 10, 1990 in the company of Congress (1) MLAs, etc. The    talk between the Speaker and     the Governor also    refers    to the same fact. In view of     the absence     of a denial by the appellants of the averment that they had met the Governor on December 10, 1990     accompanied by Dr Barbosa and Dr Wilfred D'Souza and Congress MLAs     the controversy was confined to the question whether from     the said conduct of the appellants an inference could be drawn that they had voluntarily given up the membership of     the MGP. The reference to the newspaper reports and to the talk which Speaker had with the Governor, in the impugned order of disqualification does not, in these circumstances, introduce an infirmity which would vitiate the said order as being passed in violation of the principles     of natural justice.

26.The grievance that the appellants have been denied the opportunity to adduce the evidence     is also without substance. The appellants were the best persons who could refute    the allegations made in the    petitions. In     the impugned order the Speaker has mentioned that the appellants were present before him but they did not come     forward to give evidence.    Moreover, they could have sought permission to cross-examine Dr Jhalmi in respect of the statement    made by him before the Speaker that the appellants had given up their membership of their political party and had said so openly    to him     and to others, in order to     refute     the correctness of the said statement. They, however, failed to do so.

27.In the light of the aforesaid facts and circumstances we are unable to hold that the impugned order     of disqualification was passed by the Speaker in violation of the principles of natural justice. Since we are of the view that the appellants have failed to make out    a case     for interference with order dated December 13, 1990 passed by the Speaker disqualifying the appellants, we do not consider it necessary to go into the question about the appellants having disentitled themselves from invoking the jurisdiction of the     High Court under Article 226 of the Constitution. The judgment of the High Court dismissing the writ petition of the     appellants must be upheld and CA No. 3309 of    1993 filed by the said appellants must be dismissed. 656

CA No. 2904 of 1993

28.This     appeal     relates to the disqualification of Ravi Naik under order of the Speaker dated February 15, 1991. As mentioned earlier, Naik was sworn in as Chief    Minister of Goa on     January 25, 1991. On the same day Dr Kashinath Jhalmi    filed a petition before the Speaker    of the     Goa Legislative Assembly under Article 191(2) read with    para 2(a) of the Tenth Schedule to the Constitution     wherein it was stated that Naik was elected to the Goa     Legislative Assembly on the ticket and symbol of MGP at the    last assembly election and he had also given a declaration in accordance with the Disqualification Rules that he belongs to MGP. In the said petition, it was further    stated    that Naik had sworn himself as Chief Minister    of Goa     by voluntarily giving up the membership of MGP and that he     has claimed     that he has given up membership of his original party, the MGP, and    that by his said action Naik     has incurred disqualification for being a member of the House under the provision of Article 191(2) of the Constitution of India read with paragraph 2(a) of the Tenth Schedule of     the Constitution.    After receipt    of the    said petition,     the Speaker     issued     a notice on January 29, 1991, which     was received by Naik on the same day, whereby Naik was required to submit his reply to the said petition by    February 5, 1991.    After receipt of the said notice Naik submitted an application dated February 5, 1991 whereby he sought time of one month to file his reply to the petition on     the ground that he has been advised bedrest in hospital    for fifteen days and he    was unable to     apply    his mind to    give instructions to his lawyers. In the said application    Naik further indicated that his case was going to be that he     and several others members of Legislative Assembly belonging to MGP along with him constitute a group which has arisen on account     of the split in the original political party.     The Speaker, by his letter dated February 6, 1991, granted extension of time till February 11, 1991 for Naik to forward his comments.     On February II, 199 1, Naik sent another letter requesting for further time of three weeks to forward his comments.    The said request of Naik was refused by     the Speaker and on February II, 1991 he sent a letter informing Naik to appear before him for personal hearing on February 13, 1991 at 4.00 p.m. On February 13, 1991, Naik did     not appear but an advocate appeared on his behalf and submitted his reply in writing. In the said reply Naik stated: "(i)On the 24th of December, 1990, in the meeting held at Ponda, Goa, there was a split in the    original Maharashtrawadi Gomantak Party.    The meeting was attended, among others, by office-bearers namely Executive President, Shri Gurudas Malik, Joint Secretary, Shri     Avinash Bhonsla, various executive     members and workers     of Maharashtrawadi    Gomantak Party. It     was decided that MGP (Ravi Naik Group) under my leadership be constituted. A resolution to that effect was passed.

(ii)Consequent upon the split, the following members of the Legislative Assembly of     the original    MG Party have     joined     the group representing the     MGP (Ravi Naik     Group)     and constitute the group representing the faction which has arisen as a result of the said split in the original. MG Party and there     are signatures to the declaration to that effect:

1. Shri Ravi S. Naik

657

2. Shri Ashok T.N. Salgaonkar

3. Shri Shankar Salagaonkar

4. Shri Pandurang Raut

5. Shri Vinaykumar Usagaonkar

6. Shri Ratnakar Chopdekar

7. Shri Sanjoy Bendekar

8. Shri Dharma Chodankar"

29.Along with the said reply Naik submitted Xerox copies of the     resolution referred to above as well as     the declaration bearing signatures of eight MLAs.    In the    said reply Naik stated that given time he     would    procure     the necessary evidence to     be adduced to substantiate     the averments contained in the reply. He prayed    for fifteen days' time to produce his affidavit and witnesses. In     the writ petition filed in the High Court, it has been stated by Naik that the original resolution as well as the declaration bearing     signatures of eight MLAs were shown to the Speaker at the time of hearing by the advocate for Naik on February 13, 1991.

30.The Speaker, in his order dated February 15, 1991, has posed two questions    (1) Whether the alleged split is proved;     and (2) Whether the     group    of MLAs who    have disassociated from the party constitute one-third of MLAs of original party. Both the questions were answered in     the negative. The Speaker has observed that if there was really a split in the party and a separate group of MLAs of old MGP was formed, it was incumbent upon the leader of the group to give information of the split to the Speaker as required by Rule 3 of the Disqualification Rules in Form 1 but no    such information had been furnished till the date of the order and that under Rule 4 of the Disqualification Rules each of the members of the group had to give a certificate to    that effect    by filling Form III and this also had not been    done till date of the order.     The Speaker, in his order, has also mentioned that     two MLAs of the alleged group    had already been disqualified by him. Referring to the contention urged by the advocate appearing for Naik that there was a stay by the High Court against the disqualification of these     two MLAs, the Speaker has observed:

"This argument cannot help the    disqualified MLAs as    stay from the court came after     the order of disqualification was issued by     me. Besides recently Parliament has held that     the Speaker's order cannot be a subject-matter of court proceedings and his decision is final as far as Tenth Schedule of Constitution of India is concerned."

31.The    Speaker has also mentioned that     Dharma     Chodankar had intimated    to him on January 14, 1991 that Naik     and others    had obtained his signatures forcibly    without     his consent     and against his will on a paper and that even on February 13, 1991 he had addressed a letter to the Speaker regarding seating arrangements that he had no connection whatsoever with the Naik group and that he continues to be with the original political     party.     As regards     the resolution and the declaration on which reliance was placed by Naik, the Speaker has observed that on the reverse of the typed sheet of paper which purports to be a resolution passed    on December 24, 1990 there are some signatures     and that in the typed portion there are six names of which    four are of MLAs including Naik and two are disqualified MLAs and that the name of Dharma Chodankar is not

658

there.     The Speaker has also observed that if he had    been shown the notice calling the meeting at Ponda    showing     its exact venue and the time, and the ,signatures of the persons who attended that meeting and minutes of that meeting there could be some evidence to show that such meeting had been actually held and that in the absence of any such proof     the holding of the meeting cannot be accepted. The Speaker     was also of the view that not only the split has to be proved but it has to be proved by conforming to the rules and in the face of the doubtful evidence represented by a typed sheet resolution it could not be accepted     and as no information as prescribed by the rules was given, the split in the party was not proved. In his order the Speaker     has further     stated     that he had suggested that    Naik should produce     the affidavits or the members in person to support his case and he could have brought the six members in person or six affidavits of the erstwhile MGP MLAs who had joined his group after the so-called split but he did not produce a single    affidavit nor    the persons and that out of eight signatures supposed to have been taken by Naik at Ponda on December 24, 1990, two were already disqualified and     one Dharma Chodankar has stated in clear terms that he does     not belong    to the group.    The Speaker, therefore, held    that there was no group of one-third erstwhile MGP MLAs including Naik, and he declared Naik as disqualified from being a member of Goa Legislative Assembly under Article 191(2) read with para 2(a) of the Tenth Schedule to the Constitution.

32.Before the High Court it was urged on behalf of Naik that in view of the stay order passed by the High Court on December 14, 1990 in Writ Petition No. 321 of 1990 filed by Bandekar and Chopdekar whereby the operation of the order dated December     13, 1990 regarding disqualification of Bandekar and Chopdekar had been stayed, the Speaker was     not right in excluding the said two members from the group of Naik on the ground that they were disqualified     members of Goa Legislative Assembly. Rejecting the said contention the High Court has observed:

"It is true that the Speaker in the impugned order held that he is not bound by the    stay order granted by the High Court     as he     had already    made the disqualification orders earlier to the stay order granted by the    High Court. The Speaker indeed further mentioned that recently Parliament has held that     the Speaker's     orders cannot be subject-matter of Court proceedings and his decision is final so far as the Tenth Schedule of the    Constitution of India is concerned. The fact remains    that when the Speaker made the     orders     of disqualification    on 13th December, 1990     the Division    Bench had stayed the same on    14th December,     1990 in the    petition filed     by Bandekar    and Chopdekar.    The conclusions in Kihoto case2 were pronounced by    the Supreme Court in November 1992 whereby para 7 of     the Tenth Schedule ousting the jurisdiction of the courts were held to be invalid and ultra vires the Constitution. The Speaker clearly mentioned     that the decision rendered by     the Speaker under the Tenth Schedule disqualifying a     Member cannot be a subject-matter of Court proceedings. Admittedly on the date on which he made the present impugned order, para 7 of the Tenth Schedule was not held invalid by the Apex Court and the invalidity came much later. On his-interpretation of paras 6 and 7 of     the Tenth Schedule, the Speaker held that the stay order granted by a Division Bench of    this Court is     not binding upon him. In    such circumstances, it cannot be held that the action of the Speaker was perverse or    mala fide. Had it been a fact that the Speaker was to make such order after the pronouncement of the conclusion in Kihoto case2    i.e., after November    1991, the story would have    been different. We do agree with Shri Ashok Desai, learned counsel, that propriety demanded    that the Speaker should have respected the order of the High Court but nothing turns on the    same as by this judgment the    disqualification of Bandekar    and Chopdekar is upheld which takes effect as from November 1990."

Re: Ravi S. Naik vs Union of India

33.Another contention that was urged before the High Court on behalf of Naik was that the Speaker in his    order dated February 15, 1991, has referred to letters dated January 14, 1991 and February 13, 1991 received by him    from Dharma Chodankar and that the said letters were not disclosed to Naik earlier and Naik had no opportunity of producing evidence in rebuttal. The High Court has rejected the    said contention with the observation:

"It must be seen that when for the first    time the Legislative Assembly met on February     13, 1991 Dharma Chodankar admittedly sat in     the Assembly    at the seating arrangement allotted to the original Maharashtrawadi Gomantak Party and Chodankar was not allotted a seat in     the House with the so-called breakaway group under the leadership of Ravi    Naik.    Though    Ravi Naik, at some stage, had informed the Speaker of allotment of seating arrangement for     his group separately from the original Maharashtrawadi Gomantak Party,    the Speaker did not accede to that request insofar as     MLA Dharma Chodankar     is concerned.     Ravi    Naik remained content with such seating arrangement with Dharma Chodankar    sitting     with     the original    party and it is not    possible to accept that Ravi Naik had not noticed it    when the Assembly session had taken place in     the morning of that day. The inference that     can be drawn from this is that Ravi Naik knew that Chodankar     was not with him much     before     the hearing took place before the Speaker. In the circumstances, in our view, even the    non- disclosure of letters of Chodankar cannot be said to have made any difference and in    that way caused any prejudice to the petitioner Ravi. Upon reading the impugned order it also does not give an impression to this Court that the order of disqualification had been based solely upon this so-called     extraneous material.     On the contrary, the order of disqualification is solely and mainly based upon the     failure of Ravi Naik to adduce evidence to prove the    split as required under para 3 of Tenth Schedule."

34. The High Court has laid emphasis on the point that in para 3 of the Tenth Schedule the burden of proof is on     the member    who claims that he and other members of     his Legislature Party constitute a group representing a faction which has arisen as a result of a split in his original political party and such a group consists not less than one- third of the members of such Legislature Party. According to the High Court since Naik had made a claim that there had been a split, the burden of proof to establish     that there was a split was on Naik.

35.Shri Soli J. Sorabjee, learned Senior Counsel appearing for Naik, assailing the findings recorded by the High Court, has, in the first place, contended that in view of the    stay order passed by the High Court on December 14, 1990 in    Writ Petition No. 321 of 1990 filed by Bandekar and Chopdekar the Speaker could not have proceeded on the basis that Bandekar and Chopdekar     stood disqualified as members of     the Legislative Assembly on December 24,

660

1990, when there was a split, as claimed by Naik.     As regards letters dated January 14, 1991 and February 13, 1991 received by the Speaker from Dharma Chodankar, Shri Sorabjee has urged that the said letters were never disclosed to Naik earlier and that the said documents could not be relied upon by the Speaker without affording an opportunity to Naik to adduce evidence in rebuttal and, moreover, in these letters Dharma    Chodankar has    not denied his     signatures on     the declaration dated December 24, 1990 which has been produced by the appellant and has only claimed that the signatures had been obtained forcibly which means that he had actually signed    the said declaration. Shri Sorabjee has urged    that the question whether the signatures of Dharma Chodankar     had been obtained    forcibly on the said declaration could be proved    only by evidence produced in the presence of     the parties     and that no evidence was adduced in support of     the said allegation and in that view of the matter the Speaker could not ignore the signatures of Dharma Chodankar on     the declaration dated December 24, 1990 and it could not be held that the members in the group formed by Naik were less    than one-third of the members of the Legislature Party of Naik, namely, MGP.

36.As noticed earlier paragraph 2 of the Tenth Schedule provides for disqualification on the ground of defection if the conditions laid down therein are fulfilled and paragraph 3 of the said Schedule avoids such disqualification in    case of split. Paragraph 3 proceeds on the assumption that     but for the applicability of    the said provision     the disqualification under paragraph 2 would be attracted.     The burden    to prove the requirements of paragraph 2 is on     the person     who claims that a    member    has incurred     the disqualification and the burden to prove the requirements of paragraph 3 is on the member who claims that there has    been a split in his original political party and by virtue of said split the disqualification under paragraph 2 is     not attracted. In the present case Naik has not disputed    that he has     given up his membership of his     original political party but he has claimed that there has been a split in     the said party. The burden, therefore, lay on Naik to prove that the alleged split satisfies the requirements     of paragraph 3. The said requirements are:

(i) The     member     of a House should make a claim that he and other members of     his legislature party constitute     the group representing a faction which has arisen as a result of a split in his original party; and (ii)Such group must consist of not less than one-third     of the members of such     legislature party.

37.In the present case the first requirement was satisfied because     Naik has made such a claim. The only    question is whether     the second requirement was fulfilled.     The total number    of members in the legislature party of the MGP    (the original political party) was eighteen.     In order to fulfill the requirements of paragraph 3 Naik's group should consist of not less than 6 members of the legislature party of     the MGP. Naik has claimed that at the time of split on December 24, 1990 his group consisted of eight members whose signatures are contained in the declaration, a copy of which was filed with the reply dated February 13, 1991.

38.The Speaker has held that the split had not been proved because no intimation about the split has been given to     him in accordance    with Rules 3 and 4 of the Disqualification Rules.    We find it difficult to endorse this view. Rule 3 661

requires the information in respect of matters specified in clauses (a), (b) and (c) of sub-rule (1) to be furnished in the prescribed form (Form 1) to the Speaker by the leader of the legislature party within 30 days after the first sitting of the House or where such legislature is formed after     the first sitting, within 30 days after its formation. Rule 4 relates     to information to be furnished by every member to the Secretary of the Assembly in the prescribed form (Form 111). In respect of a member who has taken his seat in     the House     before     the    date of commencement of     the Disqualification Rules, the information is required to be furnished within 30 days from such date. In respect of a member     who takes his seat    in the     House     after     the commencement of the Disqualification Rules such     information has to be furnished before making and subscribing an oath or affirmation under Article 188 of the Constitution and taking his seat in the House. Rule 4 has no application in     the present     case because the stage for furnishing the required information had passed long back when the members made     and subscribed to oath and affirmation after their election in 1989.    Rule 3 also comes into play after the split and     the failure on the part of the leader of the group that has been constituted as     a result of the split does not mean    that there has been no split. As to whether there was a split or not has to be determined by the Speaker on the basis of     the material placed before him. In the present case the split was sought to be proved by the declaration dated December 24, 1990 whereby eight MLAs belonging to the MGP declared that they had constituted themselves into a group known as Maharashtrawadi     Gomantak Party (Ravi Naik Group). A Xerox copy of the said declaration was submitted along with     the reply filed by Naik on February 13, 1991 and the original declaration bearing the signatures of the eight MLAs     was produced by the advocate for Naik during the course of     the hearing     before     the Speaker on February 13,     1991.     The genuineness of the signatures on the said declaration     was not disputed before the Speaker. One of the signatories of the declaration, namely, Dharma Chodankar, had     written to the Speaker that his signatures were     obtained forcibly. That may have a bearing on the number    of members constituting the group. But the fact that a group     was constituted is established by the said declaration.

39.The question that requires consideration is whether    as a result of the said group being constituted there was a split in the MGP as contemplated by paragraph 3 of the Tenth Schedule. The     Speaker has held that the requirements of paragraph 3 were not fulfilled for the reason that the number    of members of the group was less than one-third of the members of the legislature party of the MGP. For coming to the     conclusion the Speaker has excluded Bandekar     and Chopdekar on the ground that they stood disqualified under order dated December    13, 1990 passed by him and Dharma Chodankar was excluded on the ground that he had disowned his signatures     on the declaration. The said view of     the Speaker has been assailed before us.

40.We will first examine whether Bandekar and     Chopdekar could be excluded from the group on the basis of order dated December 13, 1990 holding that they stood disqualified as members     of the Goa Legislative Assembly. The said     two members     had filed Writ Petition No. 321 of 1990 in     the Bombay    High Court wherein they challenged the    validity of the said order of disqualification and by order dated December 14, 1990 passed in the said writ petition the High 662

Court had stayed the     operation of    the said order of disqualification dated     December 13, 1990 passed by     the Speaker. The    effect of the stay of the operation of     the order of disqualification dated December 13, 1990 was    that with effect from December 14, 1990 the declaration    that Bandekar and Chopdekar were disqualified from being members of Goa Legislative Assembly under order dated December     13, 1991 was not operative and on December 24, 1990, the date of the alleged split, it could not be said that they were     not members     of Goa Legislative Assembly.    One of    the reasons given by the Speaker for not giving effect to the stay order passed by the High Court on December 14, 1990, was that     the said order came after the order of disqualification     was issued    by him. We are unable to appreciate this reason. Since the said order     was passed in a writ petition challenging the validity of the order dated December     13, 1990 passed by the Speaker it, obviously, had to come after the order of disqualification was issued by the Speaker. The other reason given by the Speaker was that Parliament had held that the Speaker's order cannot be a subject-matter of court proceedings and his decision is final as far as Tenth Schedule of the Constitution is concerned. The    said reason    is also unsustainable in law.    As to    whether     the order of the Speaker could be a subject-matter of court proceedings and whether his     decision was    final    were questions involving the interpretation of the provisions contained in Tenth Schedule to the Constitution. On the date of the passing of the stay order dated December     14, 1990, the said questions were pending consideration before this Court.     In the absence of     an authoritative pronouncement by this Court the stay order passed by     the High Court could not be ignored by the Speaker on the    view that his order could not be    a subject-matter of court proceedings and his decision was final. It is settled     law that an order, even though interim in nature,     is binding till it is set aside by a competent court and it cannot be ignored on the ground that the court which passed the order had no     jurisdiction to pass the same.     Moreover the    stay order was passed by the High Court which is a superior Court of Record and "in the case of a superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a     court    of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction." [See : Special Reference No. 1 of 19643. SCR at p. 499]

41.The    said question relating to the jurisdiction of the High Court to entertain the writ petitions challenging     the order of the Speaker now stands concluded by the judgment of this Court in Kihoto Hollohan case2 wherein the provisions of paragraph 7 of the Tenth Schedule have been held to be unconstitutional and paragraph 6 has been construed and it has been held that the Speaker, while passing an order in exercise of his powers under subparagraph (1) of paragraph 6 of the Tenth Schedule functions as a tribunal and the order passed    by him is subject to judicial review under Articles 32, 136, 226 and 227 of the Constitution.

42.In Mulraj v. Murti Raghonathji Maharaj8, this Court has dealt with effect of a stay order passed by a court and     has laid down:

"In effect therefore a stay order is more or less in    the same position as an order of injunction with one difference.    An order of injunction is generally issued to a party     and it is forbidden from doing certain acts.     It is

8 (1967) 3 SCR 84: AIR 1967 SC 1386

663

well-settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further it is equally well-settled    that the injunction order not being addressed to the court, if     the court proceeds     in contravention of     the injunction     order,     the proceedings are not a nullity. In the case of a stay order, as it is addressed to the court and prohibits it from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it acts illegally,    and all proceedings taken after the knowledge of the order would be a nullity.     That in our opinion is the    only difference between an order of injunction to a party and an order of stay to a court."

This would mean that the Speaker was bound by the stay order passed by the High Court on December 14, 1990 and any action taken by him    in disregard of the said stay order was a nullity. In the instant case the Speaker, in    passing     the order dated February 15, 1991 relating to disqualification, treated     Bandekar and Chopdekar as disqualified members. This action of the Speaker was in disregard of the    stay order dated December 14, 1990 passed by the    Bombay    High Court.

43.The    High Court has upheld the order of the Speaker, even though he had disregarded the stay order passed by     the High Court, on the basis that on the date on which     the Speaker     had made the impugned order, paragraph 7 of     the Tenth Schedule had not been held to be invalid by this Court and the invalidity came much later. The High Court     has observed that on his interpretation of paragraphs 6 and 7 of the Tenth Schedule, the Speaker held that the stay order by the Division Bench was binding upon him and in    such circumstances it could not be held that the action taken by the Speaker was perverse or mala fide. According to     the High Court, the position would have been different if     the Speaker     was to make the order after the decision of     the court.     We are unable to agree with this view of the    High Court.    The decision of this Court in Kihoto Hollohan case2 declares the law as it was on the date of the    coming    into force of the Constitution (Fifty-second) Amendment Act, 1985.    The action of Speaker in ignoring the     stay order passed    by the     High Court while passing the    order dated February 15, 1991 cannot be condoned on the view that in the absence     of the decision of this Court it was open for     the Speaker to proceed on his own interpretation of paragraphs 6 and 7    of the Tenth Schedule and ignore the stay order passed by the High Court.

44.Relying upon the decision in State of Orissa v. Madan Gopal Rungta9,     Shri R.K. Garg, learned Senior Counsel appearing for Respondent. 5, has submitted that the interim order could only be issued in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding and     not in derogation of the main relief and that it was open to the High Court, to pass an appropriate order while finally disposing of the writ petition. Shri Garg has contended that the High Court while finally disposing of Writ Petition No. 321 of 1990 filed by Bandekar and Chopdekar upheld     the order dated January 13, 1990 passed by the Speaker regarding disqualification of Bandekar and Chopdekar and in these circumstances it cannot be said that disregard of     the interim order passed by the High Court on December 14,    1990 by the Speaker had the effect of rendering the subsequent order dated February 15, 1991 illegal. We are unable to agree with this

9 1952 SCR 28: AIR 1952 SC 12

664

contention. It is true that an interim order is issued in aid of or ancillary to the main relief and not in derogation of the main relief. The stay order passed by the High Court on December 14, 1990 staying the operation of the order dated December     13, 1990 passed by the Speaker had    been issued in aid of and ancillary to the main relief in    Writ Petition No. 321 of 1990 which was for quashing of the    said order dated December    13, 1990. The fact that the    writ petition was ultimately dismissed and the impugned order dated December 13, 1990 passed by the Speaker was upheld by the High Court does    not mean that the High Court     had committed any error in passing the interim order for stay of operation of the order under challenge in the writ petition on December 14, 1990. The dismissal of the writ petition at the final stage does not, in our view, confer    validity on the action which was taken by the Speaker on February     15, 1991 in passing the order disqualifying Naik in disregard of the stay order passed by the High Court on December     14, 1990. In the circumstances, it must be held that in view of the stay order passed by the High Court on December 14, 1990 in Writ Petition No. 321 of 1990, the Speaker while passing the order dated February 15, 1991, could not have proceeded on the basis that Bandekar and Chopdekar stood    disqualified under his order dated December 13, 1990 and they could     not be included in the group of     Naik for the     purpose of ascertaining whether the said group consisted of one-third members     of the legislature party of MGP, the original political party. If the above two members are included within    the group of Naik then it is not disputed that     the number    of members in the group was more than one-third of the legislature party of MGP.     This would be    so even if Dharma    Chodankar was excluded because the total number of members     in the group of Naik would be seven and the number of members of the legislature party of MGP required for     the purpose     of a split under paragraph 3 of the Tenth Schedule was six. The order dated February 15, 1991, passed by     the Speaker     was, therefore, in violation of the constitutional mandate     contained in paragraph 3 of the Tenth    Schedule to the Constitution and is liable to be quashed on the basis of the law laid down by this Court in Kihoto Hollohan case2.

45.In that view of the matter we do     not consider    it necessary to deal with the submission of Shri Sorabjee    that the action of the Speaker in excluding Dharma Chodankar from the group of Naik was in violation of     the principles of natural justice.

46.In the result, while CA No. 3309 of 1993     filed    by Bandekar and Chopdekar is dismissed, CA No. 2904 of    1993 filed by Naik is allowed. The order dated May 14,    1993 passed by the High Court in Writ Petition No. 48 of 1991 is set aside and the said writ petition is allowed and     the order dated February 15, 1991 passed by the Speaker,     Goa Legislative Assembly declaring Naik as disqualified for being a member of the Goa Legislative Assembly is quashed. There is no order to costs in both the appeals.