2019 Supreme(Guj) 517

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.R.BRAHMBHATT, A. P. THAKER, JJ.
ASHWIN LAXMANBHAI KOTWAL - Appellant
Versus
HON BLE SPEAKER, GUJARAT STATE LEGISLATIVE ASSEMBLY - Respondent
SPECIAL CIVIL APPLICATION NO. 10776 of 2019
Decided On : 02-07-2019

Headnote:

Constitution of India -Article 226 -Petitioner has sought for following reliefs: (A) Your Lordships may be pleased to admit and allow this petition; (B) Your Lordships may be pleased to direct the Speaker to decide the disqualification application preferred by the petitioner (Annexure – B) within a period of 3 days from the date of receipt of the order in accordance with the provisions of the Constitution; Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to restrain respondent no. 2 from acting as a Member of the Legislative Assembly form 16 Constituency; (D) Be pleased to grant any other relief/s which deems fit and proper in the interest of justice.” short facts of the petition are as under: It is contended by the petitioner that the respondent no.2 has voluntarily given up his membership of the Indian National Congress Party upon his resignation and accordingly in view of the provisions contained in paragraph 2(1)(a) of the Tenth Schedule to the Constitution, he is disqualified. It is contended that in view of these facts, the petitioner has moved an application before the Honble Speaker In spite of that no action has been taken for a period of almost one and half months. It is also contended that the respondent no.2 is elected member of legislative assembly as a candidate setup by Indian National Congress party for Constituency. That after filing of the application before the Hon’ble Speaker, nothing was heard from the office of the Hon’ble Speaker for several days, hence a representation was made to the Hon’ble Speaker personally by senior leader of the I.N.C. and on the same day in-charge Deputy Secretary of the Gujarat Legislative Assembly sent a communication to the petitioner by R.P.A.D. pointing out as many as 6 defects in the application preferred by the petitioner. It is contended that such a communication has never been received by the petitioner but however, he got a copy of the same on inquiring personally and thereafter he has filed Further Affidavit with a request to enable the petitioner to remove the defects pointed out in the aforesaid communication. It is the further case of the petitioner that he has pointed out in detail that the defects are technical in nature and same can be cured and he has accordingly submitted Affidavit to that effect. It is also contended that he was not allowed to cure the defects and instead it was informed that the Affidavit shall be placed before the Hon’ble Speaker for its order. It is also contended that thereafter he compelled to wait and thereafter petitioner removed all the defect on and he was informed that notice will be issued to the respondent no.2 and necessary date of hearing would be intimated to the petitioner –Held At this juncture, it is required to be observed that these Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the powers conferred on him under sub-paragraph 1 of paragraph 6 of the Tenth Schedule of the Constitution and these Rules are procedural in nature and violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny. Admittedly, in this case, the Speaker has yet not adjudicated upon the application and it is in primary stage. These facts suggests that the adjudication process is already started and it is submitted that defects is already removed. At this stage, no direction as sought for by the petitioner to decide his application within the period of three days, need to be issued to the Speaker. In view of the aforesaid facts and circumstances and reasoning, we are of the view that as no exception, case or circumstances are made out calling for any interference and/or issuance of direction especially so when the learned counsel for the respondent no.1 has clearly submitted that the respondent no.1 is alive to the situation and he is being responsible constitutional authority would take all the care and precaution to see to it that no grievances are thereafter survive and the matter will be decided strictly in accordance with law. Resultantly, this Court is of the considered view that the present petition is devoid of merits and the same is required to be dismissed and is accordingly dismissed. Notice discharged. However, there shall be no order as to costs –Petition is Dismissed.