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1998 Supreme(Gau) 44
GAUHATI HIGH COURT
B.N.Singh Neelam, J.
Sephu Haokip : T.Gouzadou and Ors. -Appellant
Versus
Speaker, Manipur Legislative Assembly and Ors. -Respondent
Civil Rule Nos. 54 and 45 of 1998
Decided On : 19-02-1998
S.K.Medhi, P.C.Deka, P.Bora, N.K.Singh, L.Nanda Kumar Singh, B.P.Sahu, A.K.Goswami, T.C.Chutia, A.Rashid
The judicial review of the Speaker's disqualification order was not possible in light of the provisions of the 10th Schedule of the Constitution and the Apex Court's decision in Kihotahollohon vs. Zachilhu, which declared para 7 of the 10th Schedule as unconstitutional.
Headnote:
CONSTITUTIONAL LAW - 10TH SCHEDULE - DISQUALIFICATION OF MLAS - JUDICIAL REVIEW - ARTICLE 329(B) - ELECTION COMMISSION NOTIFICATION - BY-ELECTIONS - FORGED SPEAKER'S ORDER - CIVIL SUIT DECREE - JURISDICTION OF COURTS - ARTICLE 226 - WRIT PETITION - LIMITATION - WITHDRAWAL OF CLAIMS - MISC PETITION - LIBERTY TO FILE FRESH PETITION - SPEAKER'S INABILITY TO REVIEW DISQUALIFICATION ORDER - LEGALITY OF NOTIFICATION OR ELECTION PROCESS - ELECTION PETITION - ARTICLE 136 - SLP - REVIEW PETITION - FINALITY OF ORDERS - RES JUDICATA - ESTOPPEL - FRAUD - FORGERY - SIGNATURE - CIVIL COURT DECREE - INDIAN BANK VS. SATYAM FIBRES INDIA LTD. - KIHOTAHOLLOHON VS. ZACHILHU - MOHINDER SINGH VS. CHIEF ELECTION COMMISSIONER - ELECTION COMMISSION OF INDIA VS. SHIVAJI & OTHERS.
Fact of the Case:
Disqualified MLAs of Manipur Legislative Assembly challenged the Speaker's order of disqualification dated 29.7.95, claiming that the Speaker was misled by forged signatures and that the order was passed without giving them a chance to show cause. They also relied on a civil court decree in their favor, declaring the signature as forged. The Speaker filed a miscellaneous petition alleging that the order of 6.11.97, giving liberty to approach the Supreme Court or Gauhati High Court, was forged.
Finding of the Court:
The Court held that the petitioners' claims were barred by res judicata and estoppel, as they had previously withdrawn their claims in a civil rule and the Court had not granted them liberty to file a fresh petition. The Court also held that the judicial review of the Speaker's order was not possible in light of the provisions of the 10th Schedule of the Constitution and the Apex Court's decision in Kihotahollohon vs. Zachilhu, which declared para 7 of the 10th Schedule as unconstitutional. The Court further held that the Election Commission's notification for by-elections barred legal proceedings under Article 226 of the Constitution, as per Article 329(b) of the Constitution. The Court dismissed the writ petitions and the miscellaneous petition filed by the Speaker.
Issues: 1. Whether the petitioners' claims were barred by res judicata and estoppel due to their previous withdrawal of claims and the Court's refusal to grant liberty to file a fresh petition? 2. Whether judicial review of the Speaker's disqualification order was possible in light of the provisions of the 10th Schedule of the Constitution and the Apex Court's decision in Kihotahollohon vs. Zachilhu? 3. Whether the Election Commission's notification for by-elections barred legal proceedings under Article 226 of the Constitution, as per Article 329(b) of the Constitution?
Ratio Decidendi: 1. The Court held that the petitioners' claims were barred by res judicata and estoppel because they had previously withdrawn their claims in a civil rule and the Court had not granted them liberty to file a fresh petition. The Court relied on the principle of finality of orders and the need to prevent multiplicity of proceedings. 2. The Court held that judicial review of the Speaker's disqualification order was not possible in light of the provisions of the 10th Schedule of the Constitution and the Apex Court's decision in Kihotahollohon vs. Zachilhu, which declared para 7 of the 10th Schedule as unconstitutional. The Court held that the Speaker's order was a legislative act and not subject to judicial review. 3. The Court held that the Election Commission's notification for by-elections barred legal proceedings under Article 226 of the Constitution, as per Article 329(b) of the Constitution. The Court held that Article 329(b) imposed a complete ban on legal proceedings challenging electoral steps taken by the Election Commission, and that the only remedy was to file an election petition after the election.
Final Decision: The Court dismissed the writ petitions and the miscellaneous petition filed by the Speaker.
2. Civil Rule No.54 of 1998 is preferred by three of the disqualified MLAs of the Manipur Legislative Assembly namely Shri Sephu Haokip, Shri Basant Kumar Wangkhem and Shri D. Lohri - filing this writ petition under Article 226 of the Constitution particularly with a prayer for declaring the order of disqualification dated 29.7.95 to be unlawful, arbitrary malafide and malicious so passed by the Speaker, Manipur Legislative Assembly, the copies of which are filed and marked as Annexure A/7 to A/9. The order disqualifying them being passed in exercise of the powers conferred upon the Speaker under the 10th Schedule of the Constitution of India,1950 in the light of the satisfaction of the Speaker that the petitioners had voluntarily given up their membership from their political party and also from, being a member of the Congress Legislative Party and as such, found liable to be disqualified under the various provisions of the 10th Schedule of the Constitution of India,1950.
3. In this writ petition No.54 of 1998, the Speaker, Manipur Legislative Assembly is impleaded as respondent No. l whereas the Election Commission of India as respondent No.2. The petitioners, in this writ petition are represented by their learned counsel Shri BP Sahu whereas respondent No. l is represented by the learned counsel Dr. NK Singh and respondent No.2 by the learned senior counsel Mr. PC Deka. The cause of action in nut shell giving rise to filing of this writ petition, as submitted by Mr. Sahu, the learned counsel for the petitioners, is the orders passed by the Speaker dated 6.11.97, copies of which are filed and marked as Annexure A/19 to A/21 by virtue of which, as submitted, after dealing with the orders passed by this Court in Civil Rule No.460 of 1995 and 469 of 1995 in which the Bulletin Part II dated 1.7.95 so challenged, the Speaker has shown his inability as to review his previous order of disqualification dated 29.7.95 disqualifying 5 of the sitting MLAs though by the said order dated 6.11.97, a liberty was given by the Speaker to approach the Supreme Court or the Gauhati High Court to seek remedy of their grievances, so, this petition.
Civil Rule No.45 of 1998 ^4. The Civil Rule No.45 of 1998 is being preferred by Shri T. Gouzadou, one of the disqualified MLAs of the Manipur Legislative Assembly, who was also declared disqualified vide Speaker's order dated 29.7.95 detailed above.
5. Mr. L. Nanda Kumar, the learned counsel appeared for the petitioner whereas Dr. NK Singh represented the respondent No.l and Mr. PC Deka, the learned senior counsel for respondent No.2 i.e. the Election Commission of India. Mr. AK Goswami, appeared in this petition representing the respondent No.5 i.e. President, Manipur Congress Committee. Mr. L. Nanda Kumar, the learned counsel for the petitioner, Shri T. Gouzadou submitted that while disqualifying this petitioner along with 4 others vide order dated 29.7.95, the Speaker, Manipur Legislative Assembly rather was misled and would not have relied upon the material so placed before him as the signature said to have been put by the petitioner was a forged one and in this connection, the present petitioner had filed a civil suit before the competent civil Court and the learned civil Court had decreed the suit in favour of the plaintiff. The present petitioner on 13.1.98 which led the petitioner as to file the representation before the present Speaker as to review his order which was not so done and as per the order dated 14.1.98 the present Speaker was pleased to dispose of the said representation showing his inability as to review his case because of the tight position of provisions of Schedule 10 of the Constitution of India,1950 though, as submitted by Mr. Nanda Kumar, the learned counsel, liberty was given to the present petitioner as to move the matter before the Sup
