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2018 Supreme(Mad) 2666
IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE, ABDUL QUDDHOSE, JJ.
R.Sakkrapani Whip, Dravida Munnetra Kazhagam – Appellant
Vs.
The Secretary Tamil Nadu Legislative Assembly – Respondent
W.P.Nos.26017, 27853 to 27856 of 2017
Decided on : 27-04-2018
Advocate Appeared:
For the Appellant : Mr.Kapil Sibal, Mr.Amarendra Sharan, Mr.R.Shanmugasundaram,
Mr.N.R.Elango, for M/s.R.Girirajan, R.Neelakandan & S.Manuraj, Mr.P.S.Raman for Mr.N.Raja Senthur Pandian
For the Respondents: Mr.R.Vijay Narayan, assisted by Mr.T.N.Rajagopalan, Mr.C.S.Vaidhyanathan assisted by M/s.Harish V.Shankar, K.Gowtham Kumar, C.Kasirajan, G.Prakash Kumar, R.M.Babu Murugavel, Mr.Vaibhav, Adv.
Headnote:
Constitution of India, 1950 - Article 139A, 226, 227 and 224 - Code of Criminal Procedure, 1973 - Section 340 - Disqualification Rules - Petitioners sought issuance of writ of mandamus directing first respondent to consider and pass orders forthwith on petition filed by petitioners herein seeking to disqualify respondent Nos -2 and 3 in each of these petitions of Tenth schedule of constitution of India read with rule of members of legislative hereinafter referred to as disqualification rules - In writ petition being petitioner prayed for issuance of a writ of mandamus directing first respondent to consider and pass orders forthwith on petition filed by him seeking disqualification of respondent No -2 in this petition under paragraph of tenth Schedule of constitution of India read with rule of disqualification rules – Held, There is no decision - May be there is inaction - None of authorities cited on behalf of petitioners propound proposition that high court can in exercise of power to take over duty of Speaker and disqualify MLAs without a hearing as envisaged under tenth schedule of constitution - We are constrained to hold that even assuming that this Court might embark upon exercise of taking over functions of Speaker in exceptional circumstances and even assuming that those circumstances exist by seeking relief of an order of this court disqualifying respondent MLAs petitioners are inviting this court to do indirectly what it has been restrained by supreme court from doing directly - In view of fact that question of issuance of mandamus on speaker is pending consideration of Supreme Court it is difficult to conceive how this court can disqualify concerned MLAs and render proceedings in supreme court infructuous – Order Accordingly.
INDIRA BANERJEE, J.
The writ petition being W.P.No.26017 of 2017 has been filed seeking disqualification of 11 MLAs, being respondent Nos.3 to 13, of the All India Anna Dravida Munnetra Kazhagam Party under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, for voting contrary to the direction issued by the Chief Government Whip on 18.02.2017.
2. In W.P.Nos.27853, 27855 and 27856 of 2017, the petitioners sought issuance of writ of mandamus directing the first respondent to consider and pass orders forthwith on the petition dated 20.03.2017 filed by the petitioners herein seeking to disqualify respondent Nos.2 and 3 in each of these petitions, under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Rule 6 of the Members of the Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, hereinafter referred to as “the Disqualification Rules”.
3. In the writ petition, being W.P.No.27854 of 2017, the petitioner prayed for issuance of a writ of mandamus directing the first respondent to consider and pass orders forthwith on the petition dated 20.03.2017 filed by him seeking disqualification of respondent No.2 in this petition under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Rule 6 of the Disqualification Rules.
4. On 05.12.2016, the former Chief Minister of Tamil Nadu, Ms.J.Jayalalithaa died, after which, Mr.O.Panneerselvam of All India Anna Dravida Munnetra Kazhagam (AIADMK) was elected as Chief Minister of Tamil Nadu. On 05.02.2017, Mr.Panneerselvam resigned from the post of Chief Minister. Thereafter on 16.2.2017, Mr.Edappadi K.Palaniswami was sworn in as Chief Minister. On the same day, i.e., 16.2.2017, the then Governor of Tamil Nadu directed Mr.Palaniswami to prove majority support in his favour by way of floor test.
5. According to the petitioner, a whip was issued under the AIADMK party's seal directing the MLAs of AIADMK party to vote in favour of Mr.Palaniswami. On 18.2.2017, the Tamil Nadu Legislative Assembly was convened for the purpose of floor test. Mr.Palaniswami, the Chief Minister and the Leader of the Legislative Party, moved the motion that this house expresses its confidence on the Cabinet headed by the Chief Minister Mr.Palaniswami . The motion was put to vote and carried by 122 MLAs of the AIADMK who voted in favour of the motion.
6. It is a matter of record that 11 MLAs, namely (i) Mr.O.Paneerselvam; (ii) Mr.A.Arukutty; (iii) Mr.Shanmuganathan; (iv) Mr.Manickam; (v) Mr.Manoharan; (vi) Mr.K.Pandiarajan; (vii) Mr.Manoranjitham; (viii) Mr.Saravanan; (ix) Mr.Semmalai; (x) Mr.Chinnaraj; and (xi) Mr.R.Nataraj, belonging to AIADMK party, hereinafter referred to as “the respondent MLAs”, voted against the motion. This is also not disputed.
7. On 20.3.2017, some MLAs of AIADMK presented petitions to the Speaker under the Members of the Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 seeking disqualification of the respondent MLAs for voting against the confidence motion, contrary to the direction issued by the AIADMK Whip.
8. In the meanwhile, on 14.3.2017, three members of the AIADMK filed a petition, being Dispute No.2 of 2017, before the Election Commission of India under Paragraph 15 of the Elections Symbols (Reservation and Allotment) Order, 1968, hereinafter referred to as “the Symbols Order”.
9. It is the case of the petitioner that no action has, till date, been taken by the Speaker on the said petitions for disqualification of the respondent MLAs. No notice has even been issued.
10. On 25.9.2017, the writ petition, being W.P.No.26017 of 2017., was filed seeking a writ of mandamus directing the second respondent, being the Speaker of the Tamil Nadu Legislative Assembly, to disqualify the respondent MLAs, who had voted contrary to the direction issued by the Chief Governme
