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2020 Supreme(Raj) 544
RAJASTHAN HIGH COURT (JAIPUR BENCH)
Mahendar Kumar Goyal, J.
Bahujan Samaj Party - Appellant
Versus
Honble Speaker, Rajasthan Legislative Assembly, Jaipur - Respondent
Civil Writ Petition No. 8056 of 2020, 8004 of 2020
Decided On : 24-08-2020
Satish Chandra Mishra, Advocate, Dinesh Kumar Garg, Advocate, Deepak Kumar Kane, Advocate, Kapil Sibal, Advocate, Prateek Kasliwal, Advocate, Sunil Fernandes, Advocate, Nizam Pasha, Advocate, Supriya Saxena, Advocate, Priyanka Pareek, Advocate, M.S. Singhvi, Advocate, Darsh Pareek, Advocate, Siddhant Jain, Advocate, Rajeev Dhavan, Advocate, Ghanshyam Singh Rathore, Advocate, Alka Bhatnagar, Advocate, Nupur Kumar, Advocate, Prastut Dalvi, Advocate, Sidharth Luthra, Advocate, Rajesh Maharshi, Advocate, Anmol Kheta, Advocate, Sheezan Hashmi, Advocate, Anoopam Prasad, Advocate, Udit Sharma, Advocate, Devadatt Kamat, Advocate, Vibhuti Bhushan Sharma, Advocate, Harshal Tholia, Advocate, Rajesh Inamdar, Advocate, Javed Ur Rehman, Advocate, Aditya Bhatt, Advocate, G.S. Bapna, Advocate, Sanjay Sharma, Advocate, Vivek K Tankha, Advocate, Major R P Singh, Advocate, Shashwat Purohit, Advocate, Varun Chopra, Advocate, Jaivardhan Joshi, Advocate, Gurtej Pal Singh, Advocate, Harish N Salve, Advocate, Satya Pal Jain, Advocate, Ashish Sharma, Advocate, Dheeraj Jain, Advocate, Madhav Mitra, Advocate, Syed Shahid Hasan, Advocate, Veerendra Singh, Advocate, R.B. Mathur, Advocate, Hitesh Mishra, Advocate, Anil Mehta, Advocate, Siddharth Bapna, Advocate, Banwari Singh, Advocate, Jaivardhan Singh, Advocate
Headnote:
The order dated 18.9.2019 passed by the Speaker accepting the claim of merger of BSP with INC is an administrative order passed by the Speaker in exercise of his administrative authority to conduct business of the House and not an order under paragraph 4 of the Tenth Schedule. The order dated 22.7.2020 passed by the Speaker rejecting the disqualification application on the ground of violation of Rule 6(7) of the Rules of 1989, which does not go to the root of the matter, cannot be sustained in the eye of law.
Fact of the Case:
The BSP, a national political party, had 6 MLAs elected to the Rajasthan Legislative Assembly in 2018. On 16.9.2019, the 6 MLAs moved an application with the Speaker claiming merger of BSP in INC. The Speaker, vide its order dated 18.9.2019, accepted the claim in terms of paragraph 4(1)(a) and 4(2) of the Tenth Schedule of the Constitution of India. Shri Madan Dilawar, a Member of Rajasthan Legislative Assembly, filed a disqualification petition dated 6.3.2020 under paragraph 6 of Tenth Schedule seeking disqualification of the respondents nos.2 to 7 with effect from 16.9.2019 alleging defection qua paragraph 2. The aforesaid application came to be rejected by the Speaker vide its order dated 22.7.2020 impugned by Shri Madan Dilawar in addition to seeking disqualification of the respondents no. 2 to 7.
Finding of the Court:
1. The Speaker does not have independent jurisdiction to adjudicate upon the claim of merger in absence of a motion seeking disqualification and the provisions of paragraph 4 afford to a Legislator a defence mechanism against the plea of his defection. 2. The order dated 18.9.2019 is an administrative order passed by the Speaker in exercise of his administrative authority to conduct business of the House and not an order under paragraph 4 of the Tenth Schedule. 3. The order dated 22.7.2020 passed by the Speaker rejecting the disqualification application on the ground of violation of Rule 6(7) of the Rules of 1989, which does not go to the root of the matter, cannot be sustained in the eye of law.
Issues: 1. Whether the order dated 18.9.2019 passed by the Speaker accepting the claim of merger of BSP with INC is an administrative order or an order under paragraph 4 of the Tenth Schedule? 2. Whether the order dated 22.7.2020 passed by the Speaker rejecting the disqualification application on the ground of violation of Rule 6(7) of the Rules of 1989 is valid?
Ratio Decidendi: 1. The Speaker acquires jurisdiction to adjudicate upon the claim of merger only while considering the plea of disqualification and not otherwise, therefore, the order dated 18.09.2019 cannot be held to be the decision on the claim of merger by the respondents no. 2 to 7. 2. The order dated 18.9.2019 fails to meet any of the criteria so as to bring it within the trappings of "decision" by the Speaker on the claim of merger by the respondents no.2 to 7 and cannot be reckoned as "decision". 3. The Speaker is the sole repository of the adjudicatory power under paragraph 6 of the Tenth Schedule to decide the question of disqualification on plea of defection and the Court acquires jurisdiction to put such adjudication to judicial review only on the infirmities based on violations of constitutional mandate, mala fides, non compliance with rules of natural justice and perversity. 4. The order dated 18.9.2019 being administrative in nature, has immunity under Article 212 of the Constitution of India and no such exceptional circumstance, as laid down vide paragraph 431 of the Constitution Bench judgement of the Hon'ble Apex Court in case of Raja Ram Pal (supra), exists in the present case which may warrant interference.
Final Decision: S.B. Civil Writ Petition No.8056/2020 is dismissed. However, the petitioners are at liberty to file a disqualification petition with the Speaker raising plea of defection of the respondents no.3 to 8. If any such petition is filed, the Speaker is expected to decide the same in accordance with law without rejecting it under Rule 6(2) of the Rules of 1989. S.B. Civil Writ Petition No.8004/2020 is partly allowed to the extent that the order dated 22.7.2020 passed by the Speaker is quashed and set aside. The Speaker is expected to take a decision on the disqualification petition filed by the petitioner within the period of three months from today as the outer limit fixed by the Hon'ble Supreme Court in para 28 of the judgement in Keisham Meghachandra Singh (supra) for decision on such petitions. Rests of the reliefs prayed for, are declined.
JUDGMENT
Mahendar Kumar Goyal, J. - The writ petition no.8056/2020 has been filed by the Bahujan Samaj Party (for short-'the BSP') with the following prayers:
"I. To quash the impugned order dated 18.09.2019 passed by the Hon'ble Speaker, Respondent No.1 as contained in Annexure No.1 to this writ petition.
II. Disqualify Respondent Nos.3 to 8 from being the member of Rajasthan State Legislative Assembly under Paragraph 2(1) (a) of the Tenth Schedule of the Constitution of India for having voluntarily given up the membership of Bahujan Samaj Party and for having defected to Indian National Congress Party; and
III. Pass such other Orders as may be considered just and proper in the facts and circumstances of the case."
2. The writ petition no.8004/2020 has been preferred by Shri Madan Dilawar, a Member of Rajasthan Legislative Assembly with the following prayers:
"A. Issue of writ of certiorari or any appropriate writ, order or direction setting aside the order dated 22.07.2020 (served on the petitioner 28.07.2020) passed by the Respondent No.1;
B. Set aside the order dated 18.09.2019 passed by the Respondent No.1 has accepting the so-called merger of the Bahujan Samaj Party into the Congress and allowed them to become Members of the Indian National Congress;
C. Call for records pertaining to the petition dated 16th March, 2020 filed by the petitioner under 10th Schedule of the Constitution of India, praying for Disqualification of the Respondents No.2 to 7 from the Membership of the Rajasthan Vidhan Sabha w.e.f. 16-09-2019 and decide the same exercising powers under Article 226 of the Constitution of India;
D. Issue a Writ of Mandamus or any other such writ as this Hon'ble Court may deem fit disqualifying Respondent(s) No.2 to 7 from the Membership of the Rajasthan Vidhan Sabha w.e.f. 16.09.2019.
E. Pass any other order deemed fit in the interest of justice and equity."
3. Although the prayers in these writ petitions are worded differently; but, in essence, they seek to quash the order dated 18.9.2019 passed by the respondent no.1, the Speaker with a declaration that 6 MLAs of BSP, the respondents herein, stand disqualified with effect from 16.9.2019. In the writ petition no.8004/2020, there is an additional prayer to set aside the order dated 22.7.2020 passed by the respondent no.1.
4. Since both these writ petitions involve common facts and common questions of law, they are being decided by this common order.
5. The facts in brief, as taken from S.B. Civil Writ Petition No.8004/2020, are that the election for Legislative Assembly of Rajasthan was held on 7.12.2018 in which the respondents no.2 to 7 were elected on the tickets issued by BSP, a national political party. On 16.9.2019, the respondents no.2 to 7 moved an application with the Speaker claiming merger of BSP in Indian National Congress (for short-'the INC'). The Speaker, vide its order dated 18.9.2019, accepted the claim in terms of paragraph 4(1)(a) and 4(2) of the Tenth Schedule of the Constitution of India. Shri Madan Dilawar filed a disqualification petition dated 6.3.2020 under paragraph 6 of Tenth Schedule seeking disqualification of the respondents nos.2 to 7 with effect from 16.9.2019 alleging defection qua paragraph 2. The aforesaid application came to be rejected by the Speaker vide its order dated 22.7.2020 impugned by Shri Madan Dilawar in addition to seeking disqualification of the respondents no. 2 to 7.
6. Shri Satish Chandra Mishra, learned senior counsel assisted by Shri Dinesh Garg, assailing the order dated 18.9.2019 contended, relying on a Constitution Bench judgement of the Hon'ble Supreme Court in the case of Rajendra Singh Rana & Ors. vs. Swami Prasad Maurya & Ors, (2007) 4 SCC 270 and a Division Bench judgement of the Hon'ble Supreme Court in the case of Jagjit Singh vs. State of Haryana & Ors, (2006) 11 SCC 1 , that the Speaker is not clothed with independent jurisdiction to invoke the provisions of paragraph 4 to accept a claim of merger dehor
