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1999 Supreme(P&H) 695
PUNJAB AND HARYANA HIGH COURT
H. S. Brar and V.M. Jain, JJ.
Dr. Virender Pal, MLA - Petitioner
Versus
State of Haryana - Respondents
Civil Writ Petition No. 14093 of 1998.
Decided On : 21 July, 1999
For the Petitioner:Mr. H. S. Mattewal, Sr. Advocate with Mr. Sanjeev Sharma, Advocate.
For the Respondent Nos. 1 and 3:Mr. H.S. Hooda, A.G., Haryana with Mr. Virender Mittal, Advocate.
For the Respondent No. 2: Mr. P.K. Mutneja, Addl. A.G., Haryana.
For the Respondent Nos. 4 and 5:Mr. D.D. Thakur, Sr. Advocate with Mr. Virender Mittal, Advocate.
Headnote:
10TH SCHEDULE - DISQUALIFICATION ON GROUND OF DEFECTION - MERGER OF POLITICAL PARTY - REQUIREMENT OF SUPPORT OF NOT LESS THAN TWO-THIRDS OF THE MEMBERS OF THE LEGISLATURE PARTY - BURDEN OF PROOF - JURISDICTION OF THE SPEAKER - SCOPE OF JUDICIAL REVIEW.
Fact of the Case:
The Speaker of the Haryana Legislative Assembly dismissed two petitions filed against Charan Dass Shorewala and Vinod Kumar Mariya, who were elected to the Assembly on Samata Party tickets but later joined the ruling alliance and accepted ministerial berths. The petitions alleged that the respondents had voluntarily relinquished their membership of the Samata Legislative Party by joining the Cabinet, thereby incurring disqualification under the 10th Schedule of the Constitution. The Speaker held that the Samata Party had merged with the Samajwadi Janata Party (Rashtriya) (S.J.P.(R)) on 18.6.1996 with the support of 21 out of 24 M.L.As. of the Samata Party, and that the respondents, along with one Azad Mohammad, did not accept the merger and constituted a separate group within the meaning of para-4 of the 10th Schedule. Accordingly, the Speaker held that the respondents were not disqualified under para-2 of the 10th Schedule.
Finding of the Court:
The Court held that the Speaker's finding that the Samata Party had merged with the S.J.P.(R) on 18.6.1996 and that the merger had the support of 21 members of the Haryana Vidhan Sabha was not supported by any evidence and was perverse. The Court also held that the Speaker had no jurisdiction to hold that the present case was covered under the provisions of paragraph 4 of the 10th Schedule, as there was absolutely nothing on record to show that not less than 2/3rds of the members of the Samata Legislature Party had agreed to the alleged merger of Samata Party with the S.J.P.(R).
Issues: 1. Whether the Samata Party had merged with the S.J.P.(R) on 18.6.1996 with the support of not less than two-thirds of the members of the Samata Legislature Party? 2. Whether the respondents had voluntarily relinquished their membership of the Samata Legislative Party by joining the Cabinet, thereby incurring disqualification under the 10th Schedule of the Constitution?
Ratio Decidendi: The Court held that the burden of proving the merger of a political party with another political party for the purpose of paragraph 4 of the 10th Schedule lies on the party claiming the benefit of the merger. In the present case, the respondents failed to discharge this burden, as there was no evidence to show that not less than 2/3rds of the members of the Samata Legislature Party had agreed to the alleged merger of Samata Party with the S.J.P.(R). Therefore, the Speaker's finding that the respondents were not disqualified under para-2 of the 10th Schedule was perverse and had to be set aside.
Final Decision: The Court allowed the writ petition, quashed the order dated 26.6.1998 passed by the Speaker, and held that respondents No. 4 and 5 namely Charan Dass Shorewala and Vinod Kumar Mariya stand disqualified for being members of the Haryana Legislative Assembly, as provided under paragraph 2(1)(a) of the 10th Schedule of the Constitution of India.
V. M. Jain, J. - The order dated 26.6.1998 Annexure P-11, passed by the Speaker of the Haryana Legislative Assembly is under challenge in this Court by way of present writ petition. Vide the said order dated 26.6.1998 the Speaker had dismissed the two petitions filed by the petitioner under paragraph 6 of the 10th Schedule of the Constitution of India read with Rule 6 of the Haryana Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 (hereinafter referred to as the Rules) against Charan Dass Shorewala and Vinod Kumar Mariya respondents Nos. 4 and 5 respectively.
2. In the petition under Rule 6 of the rules read with 10th Schedule of the Constitution of India filed by Virender Pal petitioner, against Charan Dass Shorewala respondent No. 4, copy Annexure P-15, it was alleged that petitioner was member of the Haryana Vidhan Sabha belonging to Samata Legislative Party and Charan Dass Shorewala respondent was also elected to the Haryana Vidhan Sabha on the Samata Party symbol and he made declaration to the Speaker informing him that he was a member of the Samata Legislative Party in the Haryana Vidhan Sabha. It was further alleged that in a meeting of Samata Legislative Party, Shri Om Parkash Chautala was elected as leader of the Party. It was alleged that after some time Charan Dass Shorewala respondent started indulging in anti-party activities and as such he was expelled from Samata Legislative Party and the Speaker was informed about the said expulsion. It was alleged that in the last session of the Vidhan Sabha, the Speaker allotted separate seat to Charan Dass respondent showing him to be an unattached member and did not allot him seat along with Samata Legislative Party Legislators inasmuch as Samata Party Legislators were allotted only 22 seats instead of 24 seats which were originally allotted to them. It was alleged that Leader of the Samata Legislative Party wrote a letter to the Speaker in this regard protesting for the allotment of only 22 seats and also clearly mentioned in the said letter that Charan Dass Shorewala and Vinod Kumar Mariya respondents should be deemed to be the members of Samata Legislative Party and their expulsion from the party was its internal affair. It was alleged that expulsion of Charan Dass respondent did not give him freedom to voluntarily relinquish the membership of Samata Legislative Party and did not confer upon him a right to cross over from the Samata Party to the ruling alliance or to accept ministerial berth in the Government as he was bound to sit along with the members of the Samata Party and to vote in line with the party and he cannot join the government as member of the ruling alliance. It was alleged that Charan Dass respondent had been inducted as full-fledged Minister and was administered oath by the Governor of Haryana on 14.1.1997. It was further alleged that Speaker had declared Charan Dass Shorewala respondent as an unattached member in violation of law laid down by Honble Supreme Court in Ravi S. Naik v. Union of India and others, AIR 1994 Supreme Court 1558 and G. Vishwanathan v. The Honble Speaker, Tamilnadu Legislative Assembly, Madras and others, AIR 1996 Supreme Court 1060. It was alleged that by leaving the Samata Legislative Party and accepting the ministerial berth, Charan Dass respondent incurred disqualification inasmuch as he shall be deemed to have voluntarily relinquished the membership of Samata Legislative Party. It was further alleged that Charan Dass respondent could not take the cover of being an unattached member and cannot escape the rigours of law as enshrined in 10th Schedule of the Constitution of India. It was alleged that he violated the provisions contained in the 10th Schedule and had rendered himself liable to be disqualified from becoming member of Haryana Vidhan Sabha... It was further alleged that Samata Legislative Party had already protested to the Speaker in this regard. It was accordingly prayed
