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2011 Supreme(Bom) 980
2011(5) ALL MR 790
IN THE HiGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
S. A. BOBDE & F. M. REIS, JJ.
Matanhy Saldanha
Vs.
Jitendar Deshprabhu & Anr.
Writ Petition No. 329/2005
Decided on: 12th August, 2011.
Mr. V P. THALI, Advocate for petitioner.
Mr. S. G BHOBE hobe, Adv. for respondent no. 1
Mr. S. G DESSAI, Mr. V. PARSEKAR, Mr. A.V. PAVITHRAN, Advocates for respondent no.2.
Headnote:Constitution of India - Schedule X-Membership of a party-Intention to disassociate from party-Conduct of a member-Membership of a party may be said to given up voluntarily without any registration from said party if conduct of a member clearly pointed out to such an act-Members must have clearly done some act which exhibit his intention to disassociate from his party as different from having a contrary view to it or joining any other party.
Constitution of India - Schedule X-The Member of Goa Legislature Assembly (Disqualification on Ground of Defection) Rules, 1986- Service of Whip-On Members of Legislative Assembly-No method for service prescribed by Rules-Publication by substituted service-Cannot be considered as valid-Expression of confidence by house in Council of Ministers cannot be described as a Government measure or business.-The expression of confidence by the House in the Council of Ministers cannot be described as a Government measure or business. Neither the Tenth Schedule of the Constitution of India nor The Members of the Goa Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 (for short "the Rules") prescribe any form in which a whip should be couched. However, a specific direction to the members to vote or abstain from voting in a particular manner on a particular issue must be considered as essential. Indeed, a member cannot be disqualified for not voting contrary to a Motion of Confidence when a direction to him is to vote against all Government measures and business. Nothing has been shown to us, which would suggest that the expression of confidence by the House in the Council of Ministers is known as "Government measure’ or "Government business, "The finding that the petitioner has voted contrary to a whip is, therefore, unsustainable. The stand taken by the petitioner that he has issued the whip to himself and, therefore, he acted properly, is also unsustainable, arbitrary and mischievous as on plain reading of the Tenth Schedule (supra) the whip has to be issued by the political party.
The Rules do not prescribe any method of serving a direction or a whip on Members of the Legislative Assembly. In the present case, the whip was not served on the petitioner, who was not only a Member of Legislative Assembly but also a Minister at the relevant time. The whip reproduced earlier was published in the newspaper "The Nav Hind Times" as a form of substituted service, without any attempt to paste or send its copy by Registered Post Acknowledgment Due or by Telegram at the residence or office of the petitioner, who was a Cabinet Minister. Merely because no Rules for service of a whip have been enacted, the publication by substituted service, which is the least desirable form of service, cannot be considered as valid. It would have been entirely different if attempts had been made assuming his refusal to paste notice of the whip at his residence or at his office along with a telegram or registered post acknowledgment due in addition to the publication of the whip in the newspaper. In a given case, a members would be entitled to look upon with suspicion and doubt the authenticity of a notice published in the newspaper and hence the disqualification based on such a notice cannot be upheld. There seems to be serious lacuna in the Rules about ensuring that the members have authentic notice of whips issued by their parties. There is no procedure for registration of whips with the Speaker and it is consequently not possible for members of a party or opponents to verify, whether a whip is said to have been issued by the Party even for the purposes of filing disqualification petition.
S. A. BOBDE, J. :- Heard learned counsel for the parties.
2. The petitioner has challenged order dated 09.08.2005 passed by respondent no.2-Speaker of the Goa Legislative Assembly, disqualifying the petitioner being a Member of the Goa Legislative assembly under Rule 2 (1) (a) and 2(1) (b) of the Tenth Schedule of the Constitution of India. At the relevant time, the petitioner was a Member of Legislative Assembly of Go a from Cortalim. As a result of political manoeuvre, the then Government headed by Mr. Manohar Parrikar as Chief Minister belonging to the Bhartiya Janata Party (BJP) was said to have lost majority in the House after resignation of a Minister and four Members of Legislative Assembly of the United Goan Democratic Party (UGDP), the Governor of Goa summoned the House on 02.02.2005, to cnable the Chief Minister Mr. Parrikar to take a Vote of Confidence in the House. At that time, the petitioner was the lone Member of Legislative Assembly of the UGDP in the House and was said to have acted contrary to the dccision of the party by supporting the Parrikar Government as claimed by him in his letter dated 31.01.2005 addressed to the Governor of Goa. A disqualification petition No. 3/2005 was moved by the respondent- Jeetendra Deshprabhu seeking disqualification of the petitioner from the membership of the House on the ground that he voluntarily given up the membership of the party and that he has voted contrary to the party whip.
3. The petitioner filed a reply to the petition. Respondent no. 1-Deshprabhu did not lead any evidence or examine any witness. On 04.08.2005, the petitioner filed about six applications, which included; (a) application to the Speaker that he himself recuse on the ground of bias; (b) for production of documents; (c) for summons to one Radharao Gracias for cross-examination since his affidavit was relied on by Mr. Deshprabhu; (d) application for time to lead evidence; (e) application for examining witnesses, who were present on the date and (f) application for filing the affidavit of Smt. Auda Viegas, one of the witnesses and member of the UGDP. The Speaker dismissed in all five applications of the petitioner without giving any reasons. However, took the affidavit of Smt. Auda Viegas on record where she stated that she had attended each and every meeting of the UGDP and in none of the meetings of the Presidium, any whip was ever discussed nor that the Secretary General Mr. Anacleto Viegas was authorized to issue the whip. Eventually, after arguments, on 09.08.2005, the impugned order was passed and the petitioner was restrained from exercising his rights as Member of Legislative Assembly in the House. The petitioner has questioned the said order by way of present petition.
4. At the hearing of this petition, Mr. Surendra Dessai, the learned counsel for the respondent no.2-Speaker submitted that the term of Assembly from which the petitioner was disqualified is itself over and the petition be treated as infructuous.
However, the learned counsel for the petitioner submitted that the petitioner was deprived of the membership of the House without being allowed to complete his term due to the impugned order of disqualification. Consequently, he was not paid any honourarium and allowances which would have been received by him
In the circumstances, we find that the petition merits consideration though the term of the House from which the petitioner was disqualified is over.
5. According to respondent no.1-Deshprabhu, who filed the petition before the Speaker, Mr. Saldanha-the petitioner, voluntarily gave up the membership of his party, the UGDP by his conduct. That by a letter dated 29.01.2005, the UGDP as well as the Maharashtrawadi Gomantak Party (MGP), which had earlier committed their support to the Government headed by Mr. Manohar Parrikar, had withdrawn the support to the Government. In spite of that, the petitioner, on 29.01.2005, communicated his personal decision to support the Government hea
