2002 Supreme(Bom) 762

IN THE HIGH COURT OF BOMBAY
A.P. Shah Smt. Ranjana Desai, JJ.
Narsingrao Gurunath Patil others .... Petitioners.
Versus
Arun Gujarathi, Speaker others.... Respondents.
Writ Petition Nos. 3310, 3311, 3312, 3313, 3616 1637(O.S.) of 2002, decided on 29/30-7-
2002.
Advocates appeared :
V.A. Bobde, Sr.A. i/b. G.S. Godbole A.B. Borkar, in W.P. No. 3310/2002, for petitioner.
Ashok Desai, Sr.A. with S.C. Dharmadhikari, S.C. Naidu, Rui Rodriques, Harsh Desai, B.V. Phadnis Darpan Wadhwa i/b. Prashant Naik, in W.P. No. 3310/2002, for respondent No. 2.
Mrs. J.S. Pawar, A.G.P., in W.P. Nos. 3310, 3311, 3312, 3313, 3616/2002, for State.
A.S. Oka i/b. Rajesh Datar, in W.P. No. 3311/2002, for petitioner.
R.A. Dada, Sr.A. with Nitin Jamdar, Rui Rodriques, S.C. Naidu, M.M. Gujar i/b. Prashant Naik, in W.P. No. 3311/2002, for respondent No. 2.
Virendra Tulzapurkar, Sr.A. i/b. P.S. Dani, in W.P. No. 3312/2002, for petitioner.
V.R. Manohar, Sr.A. with Sunil Manohar, Vineet Naik, Y.C. Naidu, Ms. C.A. Salgaonkar i/b. Prashant Naik, in W.P. Nos. 3312, 3313/2002, for respondent No. 2.
V.A. Thorat, Sr.A. with Rajesh Datar, in W.P. No. 3313/2002, for petitioner.
Y.S. Jahagirdar, Sr.A. i/b. Atul Karad A.M. Kanade, Abhinandan Vagyani, in W.P. No. 3616/2002, for petitioner.
Aspi Chinoy, Sr.A. with S.C. Dharmadhikari, S.C. Naidu, Rui Rodriques, A.L. Gore, A.V. Chatuphale i/b. Prashant Naik, in W.P. No. 3616/2002, for respondent No. 2.
B.P. Apte, Sr.A. with Yatin Shah, in W.P. No. 1637/2002(O.S.), for petitioner.
S.G. Aney, Sr.A. with Rui Rodriques, L.M. Acharya, B.V. Phadnis A.V. Chatuphale, i/b. Prashant Naik, in W.P. No. 1637/2002(O.S.), for respondent No. 2.

Headnote:Constitution of India - Articles 191(2) and 212, Section X, Para 2(1)(a) - Defection causing disqualification - Effect of illusory notice of hearing - Insufficient opportunity afforded for filing documents - Speaker has to ensure that such complaints are dealt with property - Speaker s decision of fixing time limit for reply cannot be objected to - It does not violate any types of natural justice nor does cause any prejudice to petitioner. - The primary duty of the Speaker is to ensure that the House should function at all time in the interest of the country/State. He is the custodian of the House and has constitutional responsibility to protect interest of the democracy. Whatever powers have been conferred by the rules on the Speaker are intended to serve one purpose i.e. the House should to enabled to function at all times in the interest of the country and the power conferred on the Speaker should be used by him in the interest of the House. The Speaker when he sits as a Tribunal to hear petition under the Tenth Schedule cannot be unmindful of his active role and duty under the Constitution. The object of entrusting the responsibility of determining disqualification etc. under the Tenth Schedule were the need for (i) expedition in determination of defection cases; (ii) ensuring impartial, objective and non-partisan decision. In Brundaban Nayak v. Election Commission of India and others, AIR 1965 SC 1892, the Supreme Court observed that it is of utmost importance that complaints under Article 192 (1) must be disposed of as expeditiously as possible. Kashyap in his book on "Parliamentary Procedure" has noted (at page 2187) that some of the cases in the Courts of the Speaker have taken "too long" and the objective of getting quick decisions have been defeated. It is, therefore, difficult to accept the submission that the Speaker was not right in setting out the deadline for deciding the cases. Granting of any requests to postpone the hearing beyond 13th June would have amounted to allowing petitioners to delay and protract the matter beyond Assembly Session. This would have frustrated the very object and purpose of the Tenth Schedule. In fact, the Speaker would be failing in his duty if he had not decided the matter with promptitude. However, this does not mean that the Speaker is not obliged to follow the rules of natural justice. Whether he has complied with the rules of natural justice is a question which will be adverted hereinafter.

       The decisions cited make one thing clear that the principles of natural justice cannot be reduced in hard and fast formulae. These principles cannot be put in straight jacket. Their applicability depends upon the context and the facts and circumstances of each case. The objective is to ensure fair hearing and fair deal to the person whose rights are going to be affected. Except cases failing under no notice, no opportunity and no hearing categories, the compliant of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the party in defending himself properly and effectively.

       The principles of natural justice will depend upon the facts and circumstances of each particular case. Court has set out actual facts and circumstances of the case. The fact that the petitioners had submitted letters to the Governor withdrawing support to D.F. Government led by Mr. Vilasrao Deshmukh is not denied or disputed. They sought to give their explanation in respect of letters but they did not dispute that the letters were duly recorded. The petitioners had not alleged that their version has been improperly recorded. In short they had accepted the factual basis of allegations made in the disqualification petitions. Though examination in chief of the petitioners was not formally recorded the Speaker gave them opportunity to explain their stand with regard to the letters addressed to the Governor. The request for calling the leader of opposition Narayan Rane and Gopinath Munde and the Secretary of the Governor was rightly declined as the testimony of these witnesses have no bearing on the real controversy before the Speaker. The Counsel for the petitioners have no doubt contended that it has prejudiced the petitioner s case but except merely mentioning the same, they were unable to specify in what manner and in what sense were the petitioners prejudiced in their defence. Court is satisfied that on account of the alleged violation it cannot be said that the petitioners did not have a fair hearing or that the enquiry conducted by the Speaker was not a fair enquiry. Court has set out hereinbefore in extenso the findings recorded by the Speaker. The issue involved before the Speaker was a narrow one i.e. interpretation of the contents of the letter. It being admitted fact that the letter of withdrawal of support was written, signed and received by the Governor, the Speaker has given more than sufficient opportunity to consider the narrow issue involved for deciding the question whether the petitioner have incurred disqualification under para 2(1)(a) of the Tenth Schedule. Therefore, the manner in which the proceedings were conducted, as a result of which action has been taken against the petitioners cannot be condemned as bad for any violation of principles of natural justice.

       Constitution of India - Articles 191(2) and 212, Section X, Para 2(1)(a) - Scope of judicial review - Defection causing disqualification - Not sufficient opportunity given - Defection challenged - In cases involving in house matters of houses there is very rare scope for review - Speaker s decision can not ordinarily be interfered with.

       Constitution of India - Articles 191(2), 212 and 19(1), Section X, Para 2(1)(a) - Interpretation of statute - Disqualification due to defection - If freedom of speech is violated in following whip - Freedom of speech is not absolute in case where party commands its members to speak favouring a topic an issue Abstaining from performing voting right suggests a degree of unrelibility and conspiracy to some extent - Law should be interperated to avoid such mischieves. - It is clear that the freedom of speech of a member is not an absolute freedom. The electorate essentially votes for a party and legislature mainly consists of parties. It is the party which decides whether they sit on the Government side or opposition side. It is because of the party that the members are in the House. To abstain from voting when required by the party is to suggest degree of unreliability. To vote against the party is disloyalty. To join with others in abstaining or voting for other side smacks of conspiracy. For legislator whose party is in the Government, to vote against the Government is to vote against the party; to rebel against the Government is to leave the party.

       Constitution of India - Articles 191(2) and 212, Section X, Para 2(1) (a) - Defection - Resulting in disqualification - Very short period given to file reply - Whether Rule-7 of Maharashtra Legislative Assembly Rules, violated - Held - Considering the precedents of Supreme Court, Rules are part of procedure, non-compliance of Rules is only an irregularity - No violation of constitutional provisions - Further under Article 212 the proceedings before Speaker within Parliament are barred from judicial review. - The issue is no more res integra in view of the decision in Ravi Naik s case. In the case of Ravi Naik, petitioners Sanjay Bandekar and Chopdekar were served with show-cause notices on 11th December, 1990 calling upon them to appear before the Speaker on 13th December, 1990. They made a grievance about short notice and not to go by default filed their reply and at the same time prayed for more time to file detailed reply as also to lead evidence. The request for further time was rejected by the Speaker and after hearing an order for disqualification was passed on the same day. Before the Division Bench of this Court it was contended that violation of Rule 7 has rendered the proceedings invalid. The Division Bench relying upon the decision in Kihota Hollohon and the Full Bench decision of the Orissa High Court in Bhajaman Bobera v. Speaker, Orissa Legislative Assembly and others, AIR 1990 Orissa 18, held that the order of disqualification of the Speaker is not vitiated nor rendered illegal for any procedural irregularity or illegality. The judgment of the Division Bench insofar as Bandekar and Chopadekar are concerned was confirmed by the Supreme Court in Ravi Naik s case.

       In the light of the decisions of the Supreme Court in Kihota Hallohan and Ravi Naik we hold that a mere breach of Rules framed by the Speaker cannot constitute a ground for setting aside the order of the Speaker passed under sub-para (1) of para 6 of the Tenth Schedule. It is, therefore, not necessary to consider various judgments cited by the Counsel. The argument based on Rule 7 must stand rejected

       Maharashtra Land Revenue (Change in use of Land and Non- Agricultural Assessment) Rules, 1969 - Rules 6(1), (2) and 7 - Defection causing disqualification - Challenged on ground that no proper opportunity afforded to give reply - In normal course the activities inside House before a Speaker are rarely brought for judicial review, Speaker s action cannot be interfered with. - There is nothing in the language of the Tenth Schedule to suggest that the Parliament intended to exclude the operation of para 2(1)(a) in respect of coalition Government. Coalition Governments are not uncommon in democratic countries. In our country coalition Governments have ruled in the States and Centre. The High level committee report also takes into consideration the multi-party system prevailing in this country. In this context Court may also refer to a passage from JAG Griffith and Ryle (Parliament Functions, Practice and Procedures, 1989 Edn. at pages 69-70). The view taken by the Speaker is a possible view and Court is unable to hold that the said decision is any way unreasonable, irrational or perverse. No interference is, therefore, warranted with the said decision of the Speaker.

       Maharashtra Land Revenue (Change in use of Land and Non- Agricultural Assessment) Rules, 1969 - Rules 6(1), (2) and 7 - Defection causing disqualification - Inter- pretation of statutes - Issue of freedom of speech - Whether it is violated - It is no more absolute where party needs members to remain out of voting - If there is violation of whip it depends upon degree of unreliability - Law comes to rescue - It should be interpreted to eliminate such mischieves. - It is clear that the freedom of speech of a member is not an absolute freedom. The electorate essentially votes for a party and legislature mainly consists of parties. It is the party which decides whether they sit on the Government side or opposition side. It is because of the party that the members are in the House. To abstain from voting when required by the party is to suggest degree of unreliability. To vote against the party is disloyalty. To join with others in abstaining or voting for other side smacks of conspiracy. For legislator whose party is in the Government, to vote against the Government is to vote against the party; to rebel against the Government is to leave the party. The avowed object of the Tenth Schedule is to discourage unprincipled defections which is political and social evil. It is clear that the evil which was sought to be remedied by the Parliament was the one resulting from widespread practice of unprincipled floor crossing by the legislators. This evil was sought to be remedied by inserting the Tenth Schedule in the Constitution. The anti- defection law must be so interpreted as to eliminate the mischief rather than to promote it. If interpretation of para 2(1)(a) of the Tenth Schedule as suggested by the petitioner s counsel is accepted it would virtually defeat the very object of the Tenth Schedule.

       Maharashtra Land Revenue (Change in use of Land and Non- Agricultural Assessment) Rules, 1969 - Rules 6(1), (2) and 7 - Disqualification due to defection - Effect of illusory notice of hearing - Not proper opportunity given to submit evidence - Speaker is responsible to ensure smooth running and procee- dings in Parliament/Assembly - Deadline set by him cannot be questioned in Court - Plea of violation of natural justice is also not tenable. - The primary duty of the Speaker is to ensure that the House should function at all time in the interest of the country/State. He is the custodian of the House and has constitutional responsibility to protect interest of the democracy. Whatever powers have been conferred by the rules on the Speaker are intended to serve one purpose i.e. the House should be enabled to function at all times in the interest of the country and the power conferred on the Speaker should be used by him in the interest of the House (See Practice and Procedure in Parliament by Kaul and Shakdhar (at page 123). The Speaker when he sits as a tribunal to hear petitions under the Tenth Schedule cannot be unmindful of his active role and duty under the Constitution. The object of entrusting the responsibility of determining disqualification etc. under the Tenth Schedule were the need for (i) expedition in determination of defection cases; (ii) ensuring impartial, objective and non-partisan decisions. In Brundaban Nayak v. Election Commission of India and others, AIR 1965 SC 1892, the Supreme Court observed that it is of utmost importance that complaints under Article 192(1) must be disposed of as expeditiously as possible. Kashyap in his book on "Parliamentary Procedure" has noted (at page 2187) that some of the cases in the Courts of the Speaker have taken "too long" and the objective of getting quick decisions have been defeated. It is, therefore, difficult to accept the submission that the Speaker was not right in setting out the deadline for deciding the cases. Granting of any requests to postpone the hearing beyond 13th June would have amounted to allowing petitioners to delay and protract the matter beyond Assembly Session. This would have frustrated the very object and purpose of the Tenth Schedule. In fact, the Speaker would be failing in his duty if he had not decided the matter with promptitude. However, this does not mean that the Speaker is not obliged to follow the rules of natural justice. Whether he has complied with the rules of natural justice is a question which will be adverted hereinafter. It is clear that the principles of natural justice cannot be reduced in hard and fast formulae. These principles cannot be put in straight jacket. Their applicability depends upon the context and the facts and circumstances of each case. The objective is to ensure fair hearing and fair deal to the person whose rights are going to be affected. Except cases falling under no notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the party in defending himself properly and effectively. The principles of natural justice will depend upon the facts and circumstances of each particular case. The issue involved before the Speaker was a narrow one i.e. interpretation of the contents of the letter. It being admitted fact that the letter of withdrawal of support was written, signed and received by the Governor, the Speaker has given more than sufficient opportunity to consider the narrow issue involved for deciding the question whether the petitioners have incurred disqualification under para 2(1)(a) of the Tenth Schedule. Therefore, the manner in which the proceedings were conducted, as a result of which action has been taken against the petitioners cannot be condemned as bad for any violation of principles of natural justice.

       Maharashtra Land Revenue (Change in use of Land and Non- Agricultural Assessment) Rules, 1969 - Rules 6(1), (2) and 7 - Defection causing disqualification - Challenged on ground that no proper opportunity afforded to give reply - In normal course the activities inside House before a Speaker are rarely brought for judicial review, Speaker s action cannot be interfered with. - There is nothing in the language of the Tenth Schedule to suggest that the Parliament intended to exclude the operation of para 2(1)(a) in respect of coalition Government. Coalition Governments are not uncommon in democratic countries. In our country coalition Governments have ruled in the States and Centre. The High level committee report also takes into consideration the multi-party system prevailing in this country. In this context Court may also refer to a passage from JAG Griffith and Ryle (Parliament Functions, Practice and Procedures, 1989 Edn. at pages 69-70). The view taken by the Speaker is a possible view and Court is unable to hold that the said decision is any way unreasonable, irrational or perverse. No interference is, therefore, warranted with the said decision of the Speaker.