Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Cal) 294

IN THE HIGH COURT OF CALCUTTA
RAJESH BINDAL, RAJARSHI BHARADWAJ, JJ.
Ambika Roy - Petitioner
Versus
The Hon’ble Speaker, West Bengal Legislative Assembly and Ors. - Respondents
WPA(P) No. 213 of 2021
Decided On : 28-09-2021

Advocates Appeared:
For the Petitioner:Mr. C.S. Vaidyanathan, Senior Advocate (Through VC), Mr. Billwadal Bhattacharyya, Mr. Kabir Shankar Bose, Mr. Amit Mishra, Mr. Sarthak Raizada, Mr. Akshay Nagranjan, Advocate (Through VC), Ms. Kanika Singhal, Mr. Nitish Raj, Mr. Thajaswani C.B., Mr. Rishav Thakur, Mr. Anish Mukar Mukherjee and Mr. Saket Sharma.
For the Respondents:Mr. Anindya Kumar Mitra, Senior Advocate (Through VC), Mr. Arif Ali, Mr. Prabhat, Srivastava and Mr. Sayantak Das, Mr. Kishore Datta, learned Advocate General, Mr. T.M. Sidiqui and Mr. Debashish Ghosh, Advocates (Through VC).

Point of Law: Election - Nomination - PIL - Maintainability of PIL in the present case will not be an issue as constitutional issues have been raised by the petitioner.

Headnote:
Constitution of India, 1950 - Article 208, 212, 194(3) and 361 - PIL - Nomination of Chairman of Committee on Public Accounts - Challenged - Petitioner who is a sitting member of State Legislative Assembly and also advocate by profession has filed present petition praying for issuance of a writ of quo-warranto challenging nomination of respondent No.2 as Chairman of Committee on Public Accounts - Further prayer has been made for quashing of order dated passed by respondent No.3 vide which objection petition filed by petitioner to returning officer regarding acceptance of nomination form of respondent No.2 was rejected - Whether it is limited, and if so what are limits and whether any action of that branch transgresses such limits.
Finding of the Court: disqualification is from date when act of defection took place - Court find that issue pertaining to disqualification of the respondent No. 2 as Member of Legislative Assembly is co-related with him being Chairman of Committee on Public Accounts - A petition filed for his disqualification is pending before Speaker for last more than three months, maximum period fixed in Keisham Meghachandra Singh’s case (supra) for decision thereof - Before Court proceed further in matter let respondent No. 1 place before Court order passed in petition filed for disqualification of respondent No. 2 as Member of Legislative Assembly.

ORDER :

CONTENTS

Sr. No.	Particulars	Para Nos.	Page No.
1.	Duty of the Court	1-4	2
2.	Arguments on Behalf of the Petitioner	5-9	6
3.	Arguments on Behalf of the Respondent Nos. 1 & 3	10-16	9
4.	Arguments on Behalf of the Respondent No. 2	17-19	13
5.	Reply to the Arguments of the Respondents by the Petitioner	20-24	15
6.	Analysis
	I - Regarding Disqualification Petition	25-28	19
	II - Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly, Constitution of Committees and Importance Thereof	29-39	23
	III - Constitutional Convention	40-49	33
	IV - Judicial Review	50-67	41
	V - Quo-Warranto	68-78	60
	VI - Maintainability of PIL	79	69
7.	Directions	80-81	69

DUTY OF THE COURT

1. The duty of a Judge has been well-defined in Smriti Chandrika in the following terms:

;Fkk 'kY;a fe"kd~ dk;knq)jsn ;a=;qfDr%A

izkfïokdLrFkk 'kY;eq)jsnq O;ogkjr%AA

As an experienced surgeon extracts a dart from the body of a person by means of surgical instruments, even so the Chief Justice must extract the dart of inequity from a law suit.”

(Narada vide Smriti Chandrika P. 30).

Asahaya explains this provision thus:

“As a skilful surgeon, conversant with the art of extracting a dart, takes it out by the application of surgical instruments and other manifold artful practices, even though it may be difficult to get at, it being invisible, even so a judge shall extract the dart of inequity which has entered a law suit, by employing the artful expedients of judicial investigation.

[Narada Smriti SBE Series P. 39 footnote].

(Source: A compilation by Justice Dr. M. Rama Jois published by Department of Post Graduate Studies and Research in Law, Gulbarga University at the time of introduction of new LLM Course in Bharateeya Nyaya Darshan and Raja Dharma).

2. In State of Rajasthan v. Union of India, (1977) 3 SCC 592, Hon’ble the Supreme Court opined that merely because a question has a political complication, it is no ground for the Court to shirk from performing its duty under the Constitution. So long as a question arises whether an authority under the Constitution has acted within limits of its power or exceeded it, can certainly be decided by the Court. It would be its constitutional obligation to do so. Relevant Para 149 thereof is extracted below:

“149. ...It will, therefore, be seen that merely because a question has a political colour, the Court cannot fold its hands in despair and declare “Judicial hands off”. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert in the clearest terms, particularly in the context of recent history, that the Constitution is supreme lex, the paramount law of the land, and there is no department or branch of Government above or beyond it. Every organ of Government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task of determining what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. To quote th

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2021 Supreme(Cal) 294

IN THE HIGH COURT OF CALCUTTARAJESH BINDAL, RAJARSHI BHARADWAJ, JJ.Ambika Roy - PetitionerVersusThe Hon’ble Speaker, West Bengal Legislative Assembly and Ors. - RespondentsWPA(P) No. 213 of 2021Decided On : 28-09-2021

Point of Law: Election - Nomination - PIL - Maintainability of PIL in the present case will not be an issue as constitutional issues have been raised by the petitioner.

Cases Referred (23)

IN THE HIGH COURT OF CALCUTTA
RAJESH BINDAL, RAJARSHI BHARADWAJ, JJ.
Ambika Roy - Petitioner
Versus
The Hon’ble Speaker, West Bengal Legislative Assembly and Ors. - Respondents
WPA(P) No. 213 of 2021
Decided On : 28-09-2021