advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, January 22, 2013

A.P. Legislative Council (Disqualification on ground of Defection) Rules, 1986 = "The words "voluntarily given up his membership" are not synonymous with "resignation" and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs". - Disqualification on ground of defection:- (1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House- (a) if he has voluntarily given up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority, and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation: For the purposes of this sub-paragraph,- (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member, (b) ... ... ... ... ... ... ..."= maintainability of the writ petition in view of the finality clause in para-6(1) of the Tenth Schedule to the Constitution of India.= finality embodied in para-6 of the Tenth Schedule does not detract from or abrogate judicial review under Articles 136, 226 & 227 of the Constitution of India insofar as infirmities based on violations of Constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity are concerned.


THE HON'BLE Ms. JUSTICE G. ROHINI AND THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR                

WRIT PETITION No.25527 OF 2012  

04.01.2013

Konda Muralidhar Rao...Petitioner

Dr. A. Chakrapani, Hon'ble Chairman,A.P. Legislative Council, Legislative
Secretariat, Saifabad, Hyderabad, and 3 others. ..      Respondents

Counsel for the petitioners:    Sri A.T.M. Ranga Ramanujam,rep., Sri Mr.
A.Prabhakar Rao

Counsel for respondents 1 to 3: Sri A.Sudershan Reddy, Advocate General

Counsel for respondent No.4: Sri P.Kesava Rao

(GIST:

(HEAD NOTE:  

? Cases cited:
1 1992 Supp. (2) SCC 651 = AIR 1993 SC 412  
2 (2007) 3 SCC 184
3 AIR 1969 SC 983
4 AIR 1988 SC 1274
5 AIR 1994 SC 1733
6 (2003) 8 SCC 752
7 AIR 1953 SC 235
8 (2002) 2 SCC 256
9 (2006) 11 SCC 1
10 (2011) 7 SCC 1
11AIR 1994 SC 1558
12(1996) 2 SCC 353
13AIR 2005 SC 69(1)

ORDER: (Per G. Rohini, J)      
        This writ petition is filed seeking a Certiorari to call for the records relating to the order dated 30.07.2012 in Disqualification Petition No.2 of 2012 on the file of  the 2nd respondent and to quash the same being arbitrary and illegal.
        The writ petitioner was a member of the Indian National Congress Party and
he was elected as a member of the A.P. Legislative Council from the Local Bodies
Constituency of Warangal on 2.5.2007 for a period of six years.  
The 4th
respondent herein who is also a member of the A.P. Legislative Council and
Government Whip of Indian National Congress Party in A.P. Legislative Council
filed a petition under para-2 (1) (a) of Tenth Schedule read with Article 191
(2) of the Constitution of India and Rule 6 of the Rules called the Members of
A.P. Legislative Council (Disqualification on ground of Defection) Rules, 1986
(for short, 'the Rules') seeking a declaration that the writ petitioner is
disqualified  for being a member of the Legislative Council of A.P. alleging
inter alia  that the writ petitioner who got elected as a member of Legislative
Council of A.P. on the B-Form issued by the Indian National Congress had
participated in various anti-party activities and thus he had voluntarily given
up his membership of Indian National Congress Party.
In pursuance thereof, a
show-cause notice together with a copy of the petition presented by the 4th
respondent and the enclosed documents was served on the writ petitioner on
17.1.2012 calling upon him to explain the allegations. 
Having entered appearance
through his counsel before the 2nd respondent,  the writ petitioner filed a
detailed counter denying the allegations made in the Disqualification Petition.
After hearing both the parties, the 2nd respondent by the impugned order dated
30.07.2012 held that it was established that the writ petitioner had voluntarily
given up his membership of the Indian National Congress and thus he was
disqualified for being a member of the A.P. Legislative Council.   
Aggrieved by
the said order, the present writ petition is filed.
        The 4th respondent filed a counter-affidavit supporting the impugned order
and raising an objection as to the very maintainability of the writ petition in view of the finality clause in para-6(1) of the Tenth Schedule to the Constitution of India.
        We have heard Sri A.T.M. Ranga Ramanujam, the learned Senior Counsel  
representing Sri A. Prabhakar Rao, the learned counsel for the writ petitioner,
Sri A. Sudershan Reddy, the learned Advocate General appearing for the
respondents 1 to 3 and Sri P. Kesava Rao, the learned counsel appearing for the
respondent No.4.
The question relating to the jurisdiction under Article 226 of the Constitution
of India to entertain a writ petition against the decision made under para-6(1)
of the Tenth Schedule to the Constitution of India is no longer res integra.
Having considered all the relevant aspects in detail, a Constitution Bench in
KIHOTO HOLLOHAN v. ZACHILLHU & ORS.1  
held that the concept of statutory     
finality embodied in para-6  of the Tenth Schedule does not detract from or
abrogate judicial review under Articles 136, 226 & 227 of the
Constitution of India insofar as infirmities based on violations of
Constitutional mandates, mala fides, non-compliance with rules of natural
justice and perversity are concerned.  
This view has been reiterated in various
later decisions including the decision of another Constitution Bench in RAJA RAM
PAL v. HON'BLE SPEAKER, LOK SABHA2.        
Therefore, we have no doubt that the present writ petition is maintainable,
however the grounds of challenge are limited to violation of constitutional
mandate, mala fides, non-compliance with rules of natural justice and
perversity.  
In the light of the ratio laid down in the above decisions, it is
also clear that the irregularity, if any, in the procedure can be no ground to challenge the order made by the 2nd respondent under para-6 of the Tenth Schedule. 
Coming to the merits of the case, the allegations made in the Disqualification
Petition filed by the 4th  respondent before the 2nd respondent praying for
disqualification of the writ petitioner can be summed up as under:
(1)     The writ petitioner while continuing as a member of the Indian National
Congress Party joined hands with Mr.Y.S.Jaganmohan Reddy, who rebelled and   
resigned from the primary membership of the Indian National Congress Party and
took active part in agitations lead by Mr.Y.S.Jaganmohan Reddy against the
ruling Government.
(2)     On 22.12.2010 the writ petitioner declared allegiance and solidarity
towards the Lakshya Deeksha organied by Mr.Y.S.Jaganmohan Reddy and his group     
and also actively participated in the agitation contrary to the wish and
decision of the Indian National Congress Party.
(3)     The writ petitioner had also presided over several meetings of Mr.
Y.S.Jaganmohan Reddy.   
(4)     On 11.01.2011 he had participated in Jal Deeksha organized by Mr.
Y.S.Jaganmohan Reddy at New Delhi declaring open support to him.  
(5)     The writ petitioner had participated in the agitation organized by Mr.
Y.S. Jaganmohan Reddy and his group from 18.02.2011 to 24.02.2011 at Hyderabad   
about the fees reimbursement and he had also affirmed his support to Y.S.
Jaganmohan Reddy and the political party which was going to set up by him.
(6)     The writ petitioner had participated in the celebrations on 11.3.2011 on
the occasion of inauguration of YSR Congress Party at Idupulapaya which revealed
that he had voluntarily abandoned his loyalty towards Indian National Congress
Party.
(7)     The writ petitioner started actively campaigning for YSR Congress Party
after the nominations were filed by Y.S. Jaganmohan Reddy and his mother for the
Parliamentary seat at Kadapa and Assembly Constituency at Pulivendula  
respectively.
(8)     The writ petitioner was teaming up with the MLAs of Mr. Y.S. Jaganmohan
Reddy openly outside and inside the premises of the A.P. Legislative Council and
A.P. Legislative Assembly and was giving statements without there being any
official stand in that regard taken by the Indian National Congress Party.

        To substantiate the above said instances, the 4th respondent had filed
before the 2nd respondent various newspaper reports, video clippings and etc.
In pursuance thereof, a show-cause notice dated 17.01.2012 was served on the
writ petitioner furnishing the copies of the petition and supporting documents
filed by the 4th respondent and calling upon him to submit his explanation.
        The writ petitioner filed his counter-affidavit on 21.02.2012 denying the
allegations made in the Disqualification Petition.  Though he admitted that he
had participated  in Lakshya Deeksha agitation and Jal Deeksha organized by Mr.
Y.S.Jaganmohan Reddy, it was contended by him that his participation cannot be 
construed as an anti-party activity attracting any disqualification.   With
regard to his participation in the agitation with regard to fees reimbursement,
it was contended that his participation was only to show solidarity to the
students for fees reimbursement and it cannot be taken as supporting the group
of Mr. Y.S. Jaganmohan Reddy.  So far as his visit to Idupulapaya is concerned,
it was pleaded that he visited Idupulapaya only to pay homage to late Mr. Y.S.
Rajasekhar Reddy. 
Before the 2nd respondent, the 4th respondent got himself examined as P.W.1 and 
he was also cross-examined by the writ petitioner's counsel. Altogether 37
documents marked as Exs.P-1 to P-37 were produced in evidence through P.W.1.  
However the writ petitioner did not choose to lead evidence on his behalf.
After hearing the arguments of both the sides, the 2nd respondent by the
impugned order dated 30.07.2012 held that the plea in the Disqualification
Petition that  the writ petitioner had voluntarily given up his membership of
Indian National Congress was established.  Thus he was disqualified for being a
member of the Legislative Council.
Pointing out that all the documents filed by the 4th respondent to substantiate
the allegations in the Disqualification Petition were only copies of the news
items published in various news papers and CDs in which the programmes allegedly
participated by the writ petitioner supporting YSR Congress Party were recorded,
it is contended by the learned Senior Counsel appearing for the writ petitioner
that the 2nd respondent committed a grave error in relying upon the said paper
clippings and CDs which did not even contain the source of the information
relating to the alleged anti-party activities of the writ petitioner.
Relying upon CENTRAL BANK OF INDIA v. P.C. JAIN3, LAXMI RAJ SHETTY v. STATE OF          
TAMIL NADU4, QUAMARUL ISLAM v. S.K. KANTA5 and R.V.E. VENKATACHALA GOUNDER v.  ARULMIGU VISWESARASWAMI & V.P. TEMPLE6, the learned Senior Counsel further          
contended that the contents of the  newspaper reports cannot be held to be
proved unless the same are proved by the concerned person by examining himself 
before the Court. Thus, according to the learned Senior Counsel, Exs.P-2 to P-37
being inadmissible in evidence ought not to have been considered by the 2nd
respondent.  The learned Senior Counsel vehemently contended that since no other
evidence was available on record to substantiate the allegations, the impugned
order is vitiated for want of evidence and as such it is liable to be set aside
on that ground alone.
It is also urged by the learned Senior Counsel that the action of the 2nd
respondent in taking into consideration the subsequent events on the basis of
the additional documents filed by the 4th respondent as Exs.P-24 to P-36 without
there being any amendment to the complaint lodged by the 4th respondent is
erroneous and amounts to violation of the principles of natural justice since
the writ petitioner was deprived of an opportunity to contradict the contents of
the said documents. In support of the said submission, the learned Senior
Counsel relied upon TROJAN & CO. v. NAGAPPA7 and OMPRAKASH GUPTA v. RANBIR B.            
GOYAL8.
At the outset, we would like to point out that strict rules of evidence are not applicable to the proceedings of the 2nd respondent which are summary in nature.
Admittedly this is a case where the writ petitioner has not disputed the fact of
his participation in Lakshya Deeksha, Jal Deeksha programmes organized by Mr. 
Y.S.Jaganmohan Reddy and his group who had resigned from the primary membership    
of Congress Party.  The fact that he had participated in the agitation with
regard to fees reimbursement organized by Mr. Y.S. Jaganmohan Reddy and his  
group and that he had also presided over several meetings of Mr. Y.S. Jaganmohan
Reddy has also not been denied by the writ petitioner.  Even the fact that the
wife of the writ petitioner had contested the by-election from Parakala Assembly
Constituency as a candidate of YSR Congress Party and that the writ petitioner
had participated in the campaigning along with the honorary president of Y.S.R.
Congress Party has not been denied by the writ petitioner.   Thus, in fact there
was no denial by the writ petitioner of the contents of the newspaper reports
about his having participated in various programmes noticed above which were
organized by Mr. Y.S. Jaganmohan Reddy and having shown allegiance to the YSR   
Congress Party formed by him. 
 In the absence of denial by the writ petitioner of the factum of his
participation in the said programmes, the question of admissibility of the
newspaper reports in evidence has virtually lost its relevance.  The mere
reference by the  2nd respondent to the said newspaper reports does not amount
to relying upon the same for arriving at the conclusion that the writ petitioner
has participated in various programmes organized by Mr. Y.S. Jaganmohan Reddy.  
Similarly having regard to the admitted fact that the writ petitioner himself
had declined to come into the witness box and lead any evidence on his behalf
manifests the fact that he had no evidence contra.
So far as the contention that the 2nd respondent ought not to have permitted the
4th respondent to produce the evidence with regard to the events that took place
subsequent to the filing of the complaint particularly in the absence of any
amendment to the complaint is concerned, we have observed that the documents so  
considered by the 2nd respondent are nothing but the newspaper reports covering
the participation of the writ petitioner in election meetings and campaigning in
favour of his wife who was contesting from Parakala Assembly Constituency as a
candidate of YSR Congress Party.  The writ petitioner could not refute the fact
that he had participated in the said programmes.  He did not even come forward
to give evidence on his behalf or to cross-examine the witnesses of the
complainants in respect of the additional material so produced with regard to
the events that took place subsequent to filing of Disqualification Petition.
Moreover at the time of marking of the said documents the writ petitioner failed
to raise any objection as to the admissibility of any of the said documents. In
spite of ample opportunity provided, he did not enter the witness-box to give
evidence on oath. It is also relevant to note that it was recorded in the
impugned order that it was represented on behalf of the writ petitioner that  he
had no intention to lead evidence and that he would proceed with the arguments.
In this context, it would be appropriate to notice the following observations
made by the Apex Court in JAGJIT SINGH v. STATE OF HARYANA9 with regard to the      
applicability of the principles of natural justice to the  proceedings under the
Tenth Schedule. 
"Para-14. At the outset, we may mention that while considering the plea of
violation of principles of natural justice, it is necessary to bear in mind that
the proceedings under the Tenth Schedule are not comparable to either a trial in
a court of law or departmental proceedings for disciplinary action against an
employee. But the proceedings here are against an elected representative of the
people and the judge holds the independent high office of a Speaker. The scope
of judicial review in respect of proceedings before such Tribunal is limited. We
may hasten to add that howsoever limited may be the field of judicial review,
the principles of natural justice have to be complied with and in their absence,
the orders would stand vitiated. The yardstick to judge the grievance that
reasonable opportunity has not been afforded would, however, be different.
Further, if the view taken by the Tribunal is a reasonable one, the Court would
decline to strike down an order on the ground that another view is more
reasonable. The Tribunal can draw an inference from the conduct of a Member, of
course, depending upon the facts of the case and totality of the circumstances."

It may also be mentioned that even in the counter-affidavit filed by the writ
petitioner before the 2nd respondent, his participation in the aforesaid
programmes was not denied but it was contended that he had neither given up his
membership voluntarily nor the activities attributed to him amounted to
voluntarily giving up the membership of Indian National Congress Party.
According to the writ petitioner, his allegiance to the Indian National Congress
Party is unquestionable as he never acted against the interest of the party nor
voted or abstained from voting on any occasion in the Council contrary to any of
the directions issued by the Indian National Congress Party and that he was
striving for betterment of the party.  Thus it is clear that ample opportunity
was provided to the writ petitioner to rebut the allegations before passing the
impugned order.
In spite of such opportunity as the writ petitioner had not denied his
participation and association with the activities of YSR Congress party, it is
contended by the learned counsel for the respondents that the 2nd respondent had
rightly concluded that the writ petitioner had voluntarily given up his
membership of the Indian National Congress Party.
However, the learned Senior Counsel for the writ petitioner while citing before
us a recent decision of the Apex Court in BAL CHANDRA L JARKIHOLI & ORS. v. B.S.  
YEDURAPPA & ORS.10  contended that the 2nd respondent was not justified in  
arriving at such a conclusion merely on the ground that the allegations must be
deemed to have been proved in the absence of denial.  It is contended by the
learned Senior Counsel that the 4th respondent was bound to prove the
allegations with supporting evidence and the mere fact that the allegations were
not denied by the writ petitioner did not amount to the same having been proved.
Para-2 of the Tenth Schedule to the Constitution which provides for
disqualification of member of the Legislative Assembly or Legislative Council of
the State reads as under:
2. Disqualification on ground of defection:- 
(1) Subject to the provisions of
paragraphs 4 and 5, a member of a House belonging to any political party shall
be disqualified for being a member of the House-
(a)  if he has voluntarily given up his membership of such political party; or
(b)   if he votes or abstains from voting in such House contrary to any
direction issued by the political party to which he belongs or by any person or
authority authorized by it in this behalf, without obtaining, in either case,
the prior permission of such political party, person or authority, and such
voting or abstention has not been condoned by such political party, person or
authority within fifteen days from the date of such voting or abstention.
Explanation: For the purposes of this sub-paragraph,-
(a) an elected member of a House shall be deemed to belong to the political
party, if any, by which he was set up as a candidate for election as such
member,  
(b) ...       ...   ...   ...   ...    ...   ..."

As could be seen from Para-2 (1) (a) of the Tenth Schedule, one of the grounds
upon which a member of a House belonging to any political party shall be
disqualified for being a member of the House is that he has voluntarily given up
his membership of such political party.
The meaning of "voluntarily given up
his membership" has been explained in RAVI S. NAIK v. UNION OF INDIA11 as under:  
"The words "voluntarily given up his membership" are not synonymous with
"resignation" and have a wider connotation. A person may voluntarily give up his
membership of a political party even though he has not tendered his resignation
from the membership of that party.  Even in the absence of a formal resignation
from membership an inference can be drawn from the conduct of a member that he 
has voluntarily given up his membership of the political party to which he
belongs".

In G. VISWANATHAN v. SPEAKER, T.N. LEGISLATIVE ASSEMBLY12, the question as to          
when does a person "voluntarily give up" his membership of such political party
as provided in para-2 (1) (a) was explained as under:
"The act of voluntarily giving up the membership of the political party may be
either express or implied. When a person who has been thrown out or expelled
from the party which set him up as a candidate and got elected, joins another
party, it will certainly amount to his voluntarily giving up the membership of
the political party which had set him up as a candidate for election as such
member." 

We have already noticed that even in JAGJIT SINGH'S case  (9 supra)  similar
view was expressed holding that an inference can be drawn from the conduct of a
member.
 In the instant case, the writ petitioner had admittedly been elected to the
A.P. Legislative Council on the ticket of the Indian National Congress.  It is
no doubt true that he had neither tendered his resignation from the membership
of the party nor joined YSR Congress Party.  However he had not only
participated in various programmes organized by Mr. Y.S.Jaganmohan Reddy, who by  
that time had already resigned from primary membership of Indian National
Congress but he was also present on the occasion of formation of YSR Congress
Party at its plenary session at Pulivendula along with other leaders of YSR
Congress Party.  Moreover his wife had contested the by-election to Parakala
Assembly Constituency as a candidate of YSR Congress Party against the official
candidate of Indian National Congress and the writ petitioner had canvassed in
support of his wife and he had also participated in the election campaigning
along with the leaders of YSR Congress Party and sought support for YSR Congress
Party candidate.  The above conduct of the writ petitioner would undoubtedly go
to show that he had indulged in anti-party activities by expressing his
allegiance to a rival political party.
Therefore, an inference was rightly drawn by the 2nd respondent that the writ
petitioner had voluntarily given up his membership of the Indian National
Congress Party.
In the facts and circumstances of the case, it appears to us
that the conduct of  the writ petitioner has very much established that he has
voluntarily given up his membership to the Indian National Congress Party. We
are also of the opinion that a finding under para-2 (1) (a) of the Tenth
Schedule need not be on the own saying of the member concerned, but an inference 
can always be drawn from his conduct.
Hence, the action of the 2nd respondent in
drawing such inference on the basis of the conduct of the writ petitioner cannot
be found fault with in the light of the law laid down in RAVI S. NAIK'S case (11
supra) and Dr. MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL &                 
ORS.13  
As we could see, this is not a case where an adverse inference was drawn against
the writ petitioner merely on the ground that the allegations in the
Disqualification Petition were not denied by the writ petitioner.  On the other
hand, the finding recorded by the 2nd respondent is on the basis of the conduct
of the writ petitioner as reflected from the series of events which the
petitioner himself could not dispute.
Hence the decision in BAL CHANDRA L
JARKIHOLI & ORS. v. B.S. YEDURAPPA & ORS. (10 supra) cited by the learned Senior    
Counsel for the writ petitioner has no application to the present case.
Therefore, the conclusion of the 2nd respondent in the impugned order made in
exercise of powers under para-6 (1) of the Tenth Schedule to the Constitution of
India did not suffer from  any of the infirmities so as to warrant interference
by this Court under Article 226 of the Constitution of India.
As already
expressed above, the grounds of challenge to an order made under para-6 (1) are
very limited and none of the grounds enumerated by the Constitution Bench in
KIHOTO HOLLOHAN'S case (1 supra)  is made out in the present writ petition.
Though a vague allegation of bias is made  against the  2nd respondent on the
ground that he too belongs to the Indian National Congress Party and thus he is
influenced by the 4th respondent and it is sought to be contended by the learned
Senior Counsel for the writ petitioner that in the absence of any counter by the
2nd respondent, the said allegation must be deemed to have been admitted, we are
unable to agree.
The Constitution itself empowered the 2nd respondent to decide on questions as
to disqualification of the members of the House on the ground of defection and
the impugned order came to be passed admittedly in exercise of the said power.
Merely because the 2nd respondent and the 4th respondent happened to belong to 
the same political party, no bias can be attributed to the 2nd respondent who is
holding the independent high office of the Chairman of the Council. At any rate,
in the absence of any specific plea or material to substantiate the allegation
of bias, we are not inclined to accept the vague allegation made in the writ
petition.
In the totality of the facts and circumstances of the case, we are of the
opinion that the 2nd respondent has rightly passed the impugned order taking
into consideration the conduct of
the writ petitioner about which there was no denial by the writ petitioner.
For the aforesaid reasons, we are convinced that the impugned order did not
suffer from any illegality warranting interference by us.
Accordingly, the Writ Petition is dismissed. No costs.
Consequently, the miscellaneous petitions if any pending in the writ petition
shall stand closed.
_________________  
Justice G. Rohini
_________________________  
Justice C.Praveen Kumar
Date:04.01.2013

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.