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2018 Supreme(Kar) 230
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAGHVENDRA S. CHAUHAN, J.
Sri C.N. Balakrishna S/o Nanjappa & Anr. - Petitioners
Vs.
The State of Karnataka Represented By Its Chief Secretary & Ors. - Respondents
Writ Petition Nos. 12338-12339 of 2018 (GM-RES)
Decided On : 24-04-2018
Advocate Appeared:
For the Petitioners: Sri Udaya Holla, Sri Usman P.
For the Respondents: Sri Madhusudhan R. Naik, Sri A.S. Ponnanna, Sri Ashok N. Nayak, Sri Jayakumar S. Patil, Sri Ashok N. Nayak, Sri K.G. Raghavan, Sri M.R. Rajagopal, Sri Dhyan Chinnappa, Sri K.A. Chandrashekar, Sri Ravi Verma Kumar, Sri S. Raju, Sri Shashikiran Shetty, Ms. Farah Fathima
Headnote:CONSTITUTION OF INDIA - Article 226 - Writ petition - Maintainability - Delay and laches - Petitioners seeking direction to Speaker to decide legitimacy of defaulting MLAs in holding public office despite disqualification - Petitioners having bona fide belief that Speaker would discharge his constitutional duty of deciding disqualification petition in reasonable time - Petitioners approached Court only after inaction of Speaker in not deciding disqualification petitioner and fresh election of Rajya Sabha approaching soon - Writ petition is not hit by delay and laches and is maintainable.
CONSTITUTION OF INDIA - Articles 226, 329(b) - Writ petition - Maintainability - Petitioners, MLAs seeking writ of Mandamus against Speaker to decide disqualification petition filed against defaulting MLAs, not adhering to whip issued by President of party - Failure of Speaker in deciding disqualification petition for more than one and half years - Defiance of whip entails disqualification of MLA - Petitioners seeking direction to Speaker to decide legitimacy of defaulting MLAs in holding public office despite disqualification and not interfering with election process - Writ petitions not barred by Article 329(b) of Constitution - Writ petition, held, maintainable.
CONSTITUTION OF INDIA - Articles 226, 191(2) & Schedule X Para 2(1)(a) & Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, Rule 6(2) - Judicial review - Disqualification of Member of House of Legislature - Despite whip issued by President of J.D. party to vote for candidate of JD party, defaulting MLAs voted for official candidate of opposition party - Petitioner, MLAs sought for disqualification of defaulting MLAs, however Speaker did not decide matter for more than one and half years - Constitutional duty imposed on Speaker to decide disqualification petition as expeditiously as possible - Till Speaker does not decide issue regarding disqualification, MLA cannot be deemed to be disqualified - High Court not empowered to declare MLA to be disqualified, during pendency of disqualification petition - Only empowered to direct speaker to decide disqualification petition.
The petitioners have prayed for the following reliefs from this Court:
A. Issue a writ in the nature of Quo Warranto to respondent Nos. 4 to 10 to demit their office as the Members of the 14th Karnataka Legislative Assembly, forthwith.
B. Issue a writ in the nature of mandamus directing the 3rd respondent to disqualify the respondents 4 to 10 as Members of Karnataka Legislative Assembly with immediate effect.
or in the alternative
C. Issue a writ in the nature of mandamus directing the 3rd respondent to dispose of the disqualification petition No.1 of 2016 pending on the file of the 3rd respondent on or before 23.03.2018.
2. They have also prayed for the following interim relief from this Court:
For the reasons stated in Paragraph 24 supra, the petitioners most respectfully pray that this Hon'ble Court may be pleased to direct the 2nd respondent, the returning office not to permit the respondents 4 to 10 either in participating or casting their votes in the ensuing election for Rajya Sabha as per the calendar of events published on 05.03.2018 and scheduled to be held on 23.03.2018, in the interest of justice.
3. The factual matrix of the case is that the petitioners were elected on tickets issued by the Janata Dal (Secular) ("the J. D. (S)", for short) in the elections held in 2013; they are the Members of the Legislative Assembly ('MLA', for short). Similarly, in the election of 2013, the respondent Nos.4 to 10 were also elected as MLAs from the JD (S) party.
4. As four members of the Rajya Sabha were retiring on 30.06.2016, on 12.05.2016, the Election Commission of India issued a calendar of events for elections for the Rajya Sabha. On 06.06.2016, Mr. H.D. Kumaraswamy, the President of the Karnataka State J.D.(S) issued a whip to all the members of the Legislative Assembly belonging to the party. He directed them to vote for the official candidate of the J.D.(S) Party, namely Mr. B. M. Farooq. The said whip was also pasted on the rooms of the respondent Nos.4 to 10. And sufficient notice was given to them about the said whip.
5. Unlike the public elections, where secret ballot is practiced, the proceedings to the Rajya Sabha elections are designed in such a manner that the voter must disclose in whose favour he has cast his vote to the party agent/representative. This procedure is adopted in order to ensure that the whip issued by the party is not violated by a party member.
6. According to the petitioners, despite the whip issued by the President of the J.D. (S) to the respondent Nos.4 to 10, they did not vote for Mr. Farooq, who was the official candidate of J.D. (S) party. Instead, on 11-06-2016, they voted for Mr. K.C. Ramamurthy, the official candidate of the Indian National Congress. Thus, they clearly violated the whip issued by the President of the J. D. (S).
7. Consequently, on 20.06.2016, the petitioners submitted a disqualification petition, under Rule 6 (2) of the Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 ("the Rules, for short), before the Hon'ble Speaker of the Karnataka Legislative Assembly, the respondent No.3. In the petition, the petitioners prayed that respondent Nos. 4 to 10 should be declared as disqualified in terms of Article 191 (2) and Paragraph 2 (1) (a) of the Tenth Schedule of the Constitution of India. The respondent Nos. 4 to 10 filed their statements of objection. The petitioners, in turn, filed their rejoinder. But, despite the pleadings being complete, in spite the lapse of more than one and a half years, the respondent No.3 has yet to decide the disqualification petition.
8. Again four members of the Rajya Sabha were scheduled to retire on 20.04.2018. Therefore, by Notification dated 05.03.2018, the Election Commission of India has published the calendar of events for election of the Members of Rajya Sabha. According to the calendar, the election for the Rajya Sabha were scheduled for 23.03.2018.
9. According to the petitioners, in case the res
