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Friday, January 18, 2013

The provisions of Sub-rules (1) and (2) of Rule 6 of the 1987 Rules have, therefore, to be read down to make it clear that not only a Member of the House, but any person interested, would also be entitled to bring to the notice of the Speaker the fact that a Member of the House had incurred disqualification under the Tenth Schedule to the Constitution of India. On receipt of such information, the Speaker of the House would be entitled to decide under paragraph 6 of the Tenth Schedule as to whether the Member concerned had, in fact, incurred such disqualification and to pass appropriate orders on his findings. 20. We, accordingly, dismiss all the appeals and uphold the judgment of the High Court impugned therein. 21. In the facts and circumstances of the case, there will be no order as to costs.


|REPORTABLE        |


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.469 OF 2013
                   (Arising out of SLP(C)No.35000 of 2012)


1 Speaker, Orissa Legislative Assembly  …    APPELLANT


           Vs.



           2 Utkal Keshari Parida                     …
RESPONDENT


                                    WITH

                   CIVIL APPEAL NOS.470, 471 & 472 OF 2013
              (Arising out of SLP(C)Nos.35023, 35024 and 35025
                                  of 2012)




                               J U D G M E N T


ALTAMAS KABIR, CJI.


1.    Leave granted.


2.    These Appeals raise an interesting issue relating  to  the  powers  of
the Speaker of the Orissa Legislative Assembly under Rule 6(1)  and  (2)  of
the Members of Orissa Legislative Assembly (Disqualification  On  Ground  Of
Defection) Rules, 1987, hereinafter referred to as "the 1987 Rules", in  the
wake of paragraphs 2(1)(a) and 8 of the Tenth Schedule to  the  Constitution
of India and are taken up together for disposal.
The facts giving  rise  to
the said legal question are set out hereinbelow.


3.    The  Appellant  herein  is  the  Speaker  of  the  Orissa  Legislative
Assembly.
There were four elected members of the  National  Congress  Party
(NCP) in the  Orissa  Legislative  Assembly.   
All  the  said  four  elected
members of the NCP joined the Biju Janata Dal (BJD),  which  is  the  Ruling
Party in the State of Orissa.  
On account of  such  defection,   Respondent,
Shri Utkal Keshari Parida, who is the President of the  State  Unit  of  the
NCP in the State of Orissa, filed four separate  Disqualification  Petitions
before the Appellant for disqualification of the said four  elected  members
of  the  NCP.   
The  Disqualification  Petitions  were  placed  before   the
Appellant on 24.07.2012 and copies thereof were forwarded to  the  concerned
Members of the Legislative Assembly, in terms  of  Rule  7(3)  of  the  1987
Rules.


4.    Inasmuch as, the matter was being delayed, the Respondent  filed  Writ
Petition (C) No. 14869 of 2012, before the Orissa High  Court,  inter  alia,
for  a  direction  to  the  Speaker  of  the  Assembly  to  dispose  of  the
Disqualification Petitions expeditiously.
 Before the Division Bench of  the
said High Court, an objection was taken  regarding  the  maintainability  of
the Writ Petition at the instance of the Respondent, who  though  being  the
President of the State Unit of the NCP, was not a Member of the  Legislative
Assembly, in view of the provisions of Sub-rule (2) of Rule 6  of  the  1987
Rules.  Rule 6 of the 1987 Rules, which is  relevant  for  our  purpose,  is
extracted hereinbelow:

           "6 (1)      No reference of any question as to whether a  Member
           has become subject to disqualification under the Tenth  Schedule
           shall be made except by a petition in relation  to  such  Member
           made in accordance with the provisions of this rule.


           (2)   A petition in relation to a Member may be made in  writing
           to the Speaker by any other Member:


                 Provided that a petition in relation to the Speaker  shall
           be addressed to the Secretary.


           (3)   The Secretary shall:-


           (a) as soon as may be after the receipt of a petition under  the
           proviso to sub-rule (2) make a report in respect thereof to  the
           House ; and


           (b) as soon as may be after the House has elected  a  Member  in
           pursuance of the proviso to sub-paragraph (1) of paragraph 6  of
           the Tenth Schedule place the petition before such Member.


           (4)   Before making any petition in relation to any Member,  the
           petitioner shall  satisfy  himself  that  there  are  reasonable
           grounds for believing that a question has arisen as  to  whether
           such Member has become subject  to  disqualification  under  the
           Tenth Schedule.


           (5)   Every petition:


                 (a) shall contain a  concise  statement  of  the  material
           facts on which the petitioner relies; and


           (b) shall be accompanied by copies of the documentary  evidence,
           if any, on which the petitioner relies and where the  petitioner
           relies on any information furnished to  him  by  any  person,  a
           statement containing the names and addresses of such persons and
           the gist of such information as furnished by each such person.


           (6)   Every petition shall  be  signed  by  the  petitioner  and
           verified in the manner laid down in the Code of Civil Procedure,
           1908 (5 of 1908), for the verification of pleadings.


           (7)   Every annexure to the petition shall also be signed by the
           petitioner and verified in the same manner as the petition."




5.    Relying on the interpretation of the aforesaid Rule  in  the  judgment
delivered by this Court in Dr. Mahachandra Prasad Singh v.  Chairman,  Bihar
Legislative Council and Others, [(2004) 8 SCC 747], the High Court  came  to
the conclusion that the Writ Petition was maintainable at  the  instance  of
the Respondent herein.  While arriving at such conclusion,  the  High  Court
also took into consideration the decision in Kihoto  Hollohan  v.  Zachillhu
and Others, [1992 Supp (2) SCC 651] and the provisions of Article  191  read
with paragraph 2 of the Tenth Schedule to the Constitution of India.


6.    Interpreting the provisions of Rule 6 of  the  1987  Rules,  the  High
Court also took into consideration the judgment of this  Court  in  Rajendra
Singh Rana and Others v. Swami Prasad  Maurya  and  Others,  [(2007)  4  SCC
270], in which reference had been made to another decision in the   case  of
Prakash  Singh  Badal  v.  Union  of  India,  [AIR  1987  P&H  263].   On  a
consideration of the said two decisions  and  the  other  decisions  already
referred to hereinbefore, the High Court came to the conclusion that it  was
abundantly clear that if any Member of the House belonging  to  a  political
party had joined another political party, which is a disqualification  under
paragraph 2(1) of the Tenth Schedule, any person  interested  could  make  a
reference to the Speaker under Rule 6 of the  1987  Rules  and  it  was  not
necessary that such  a  reference  had  to  be  made  by  a  Member  of  the
Legislative Assembly.  On its aforesaid finding,  the  High  Court  rejected
the contentions made on behalf of the Appellant and held that the same  were
maintainable under Rule 6 of the 1987 Rules.


7.     This  Appeal  has  been  preferred  by  the  Speaker  of  the  Orissa
Legislative Assembly questioning the aforesaid decision of the High Court.


8.    Appearing in support of  the  Appeals,  Mr.  K.K.  Venugopal,  learned
Senior Advocate, submitted that the High Court had wrongly  interpreted  the
provisions of Sub-rules (1) and (2) of Rule 6 of the 1987 Rules in  arriving
at the erroneous conclusion that the Disqualification Petitions under  Rules
6 and 7 of the 1987 Rules could be made not only by Members  of  the  House,
but by any interested person also.  Mr. Venugopal urged  that  the  language
of Sub-rule (2) of Rule 6 of the 1987 Rules clearly  indicates  that  it  is
only  a  Member  of  the  House,  who  in  relation  to   a   petition   for
disqualification of  another  Member,  could  apply  to  the  Speaker.   Mr.
Venugopal urged that giving any other interpretation to the said  provisions
would do violence to and be contrary to the intention contained  in  Rule  6
of the 1987 Rules. Mr. Venugopal urged that after the impugned judgment  was
delivered by the High Court, the matter was referred by the Speaker  to  the
Committee of Privileges of the House on 15.10.2012 under Rule  7(4)  of  the
1987 Rules.  The meeting of the said Committee was convened  on  22.12.2012,
but no business could be conducted in the meeting  on  account  of  lack  of
quorum.


9.    On 2.1.2013, a meeting of the Committee of Privileges was convened  to
finalise the modalities for hearing of the Disqualification Petitions  filed
on behalf of the Respondent.  However, before the matter came to be  decided
by the Committee of Privileges, the Special Leave Petition was filed to  set
aside the judgment of the Division Bench of the Orissa  High  Court  holding
that the Disqualification Petitions were maintainable at the instance  of  a
non-Member of the House.


10.   Mr. Venugopal urged that in the light of the  explicit  language  used
in Sub-rule (2) of Rule 6 of the 1987 Rules, framed by the  Speaker  of  the
Assembly under paragraph 8 of the Tenth Schedule to  the  Constitution,  the
High Court was clearly wrong in interpreting the said provisions  so  as  to
allow an application for disqualification of a Member of  the  House  to  be
made by a person who was not a  Member  thereof.   Mr.  Venugopal  submitted
that the Order of the High Court was contrary to the provisions of  law  and
was liable to be set aside.


11.   On the other hand, Mr. Amarendra Sharan, learned Senior Advocate,  who
appeared  for  the  sole  Respondent  who  had  made  the  application   for
disqualification of the four Members before the Speaker, submitted that  the
four MLAs who had been elected on the nomination  of  the  NCP,  joined  the
Biju Janata Dal on 5.6.2012,  without  giving  any  prior  notice  of  their
intention to do so and that they had voluntarily given up the membership  of
the NCP by joining the BJD, thereby incurring  disqualification  as  Members
of the Assembly under  paragraph  2(1)(a)  of  the  Tenth  Schedule  to  the
Constitution.


12.   Mr. Sharan also submitted that the action of the said  four  MLAs  did
not amount to a merger of the NCP Legislature Party  with  the  Biju  Janata
Dal on account of the fact that a merger  could  only  be   of  a  political
party with any  other  political  party.   Mr.  Sharan  submitted  that  the
legislature party of a political party by itself had no authority  or  power
to merge with any other political party, without the merger of its  original
political party. In such circumstances, the provisions of paragraph  2(1)(a)
of the Tenth Schedule to the Constitution were  squarely  attracted  to  the
facts of this case and the same had merely to be brought to  the  notice  of
the Speaker for him to hold that the said four MLAs stood disqualified  from
the membership of the House.


13.   On the question of the locus standi of the Respondent to maintain  the
writ petition in his capacity as the President of the State unit of the  NCP
in the State of Orissa, Mr. Sharan submitted that the said question  was  no
longer res integra in view of the decision rendered by  this  Court  in  the
case of Dr. Mahachandra Prasad Singh (supra), in which  reference  had  been
made to a Full Bench decision of the Punjab and Haryana High  Court  in  the
case of Prakash Singh Badal (supra).  Mr. Sharan  submitted  that  the  Full
Bench of the Punjab & Haryana High Court had considered the question,  which
has also arisen in this case, and it had held that  paragraph  (2)(1)(a)  of
the  Tenth  Schedule   did   not   contemplate   or   visualize   that   the
disqualification incurred by a Member of the House would have to be  brought
to the notice of the Speaker only by a Member  of  the  House.   Mr.  Sharan
submitted that the Full  Bench  had  also  indicated  that  in  relation  to
paragraph 6 of the Tenth Schedule, the only prerequisite  is  the  existence
of a question of disqualification of a Member.  Such  a  question  could  be
raised before the Speaker by an interested person  for  declaring  that  the
said Member stood disqualified from being a Member of the House.  It was  in
that context that in the instant case the Speaker had  held  that  when  any
Member belonging to a political party joined another political party,  which
amounted to disqualification under paragraph 2(1)(a) of the Tenth  Schedule,
any person interested could make a reference to the  Speaker  under  Rule  6
and it was not necessary that such reference would have to be made  only  by
a Member of  the  Legislative  Assembly.   Mr.  Sharan  submitted,  that  as
indicated  by  this  Court  in  Dr.  Mahachandra  Prasad  Singh's  case,  as
President, NCP,  the  Respondent  had  the  locus  standi  to  maintain  his
application, both before the Speaker, as well as before the High Court.


14.   Mr. Sharan submitted  that  any  other  interpretation  given  to  the
provisions of paragraph 2(1)(a) read with Rule 6 (1) and  (2)  of  the  1987
Rules, would defeat the very object and purpose of  the  Tenth  Schedule  to
the Constitution.


15.    On  a  consideration  of  the  submissions  made  on  behalf  of  the
respective parties, we are unable to agree with  the  interpretation  sought
to be given by Mr. Venugopal to the provisions of Rule 6 of the  1987  Rules
read with paragraph 2(1)(a) of the Tenth Schedule  to  the  Constitution  on
the question of locus standi of the Respondent,  as  the  President  of  the
State unit of the National Congress Party in the State of  Orissa,  to  file
the  application  seeking  disqualification  of  the  four  Members  of  the
National Congress Party who had switched their loyalties to the Biju  Janata
Dal.


16.   Although, paragraph 8 of the Tenth Schedule vests the Speaker  of  the
House with powers to make rules for giving effect to the provisions  of  the
Tenth  Schedule,  the  Rules  framed  under  such  powers  would  amount  to
delegated legislation which cannot override the  substantive  provisions  of
the Constitution contained in the Schedule itself.  The provisions  of  Sub-
Rules (1) and  (2)  of  Rule  6  of  the  1987  Rules  cannot  override  the
provisions of paragraph 2(1)(a) of the Tenth Schedule  to  the  Constitution
or for that matter, paragraph 6 which vests the Speaker of  the  House  with
the authority to decide the question as to whether a Member of a  House  had
become subject to disqualification under the Schedule.  Although, Rule  6(2)
of the 1987 Rules provides that a petition in relation to a Member  for  the
purposes of Sub-Rule (1) may be made in writing to the Speaker by any  other
Member, such a provision is neither contemplated nor  provided  for  in  the
Tenth Schedule itself.  As has  been  submitted  by  Mr.  Amarendra  Sharan,
learned Senior Advocate for the Respondent, in a case such  as  this,  where
all the four Members elected to the  Assembly  from  the  National  Congress
Party had changed their allegiance from the National Congress Party  to  the
Biju Janata Dal, there would be no one to bring such fact to the  notice  of
the Speaker and ask for disqualification of the  said  Members  who  clearly
stood disqualified under the provisions of the  Tenth  Schedule.   In  other
words,  although,  disqualified  under  paragraph  2(1)(a)  of   the   Tenth
Schedule, in the absence of any  application  for  disqualification  to  the
Speaker, they would continue to function as Members of the  Assembly,  which
was not the intent of or the object  sought  to  be  achieved  by  the  52nd
Amendment by which the Tenth Schedule was introduced in the Constitution.


17.   The Statement of Objects  and  Reasons  of  the  Bill,  which  finally
became the Constitution  (52nd  Amendment)  Act,  1985,  whereby  the  Tenth
Schedule was added to the Constitution with effect  from  1st  March,  1985,
inter alia, indicated that the evil of  political  defection  had  become  a
matter of national concern and if it was not checked,  it  could  very  well
undermine the very foundation of our  democracy  and  the  principles  which
sustain the same.  In such event, if the provisions of  the  Tenth  Schedule
are interpreted to exclude the right of any person interested  to  bring  to
the notice of the Speaker of the House the fact that any  or  some  of   its
Members had incurred disqualification from the membership of  the  House  on
any of the eventualities indicated in paragraphs 2 and 4 therein,  it  would
render the inclusion of the Tenth Schedule to the  Constitution  otiose  and
defeat the objects and intent of the 52nd Amendment of the Constitution.


18.   The conundrum presented on account of  the  provisions  of  the  Tenth
Schedule in addition to Rules 6(1) and (2) of the 1987 Rules had fallen  for
consideration in Dr. Mahachandra Prasad Singh's case (supra).  Speaking  for
the Bench,  G.P.  Mathur,  J.  (as  His  Lordship  then  was),  observed  in
paragraph 16 of the judgment that  the  purpose  and  object  of  the  Rules
framed by the Chairman in exercise  of  power conferred by  paragraph  8  of
the
Tenth Schedule was to facilitate the Chairman in discharging his duties  and
responsibilities in resolving any dispute as to whether the  Member  of  the
House had become subject to disqualification under the Tenth  Schedule.   It
was also observed that the Rules being in  the  domain  of  procedure,  were
intended to facilitate the holding of an inquiry and  not  to  frustrate  or
obstruct the same by the introduction of innumerable technicalities.   Being
subordinate legislation, the Rules could not make any provision which  could
have the effect of curtailing the  content  and  scope  of  the  substantive
provision, namely, the Tenth Schedule.


19.   The aforesaid observation is precisely what we too have  in  mind,  as
otherwise, the very object of the introduction of the Tenth Schedule to  the
Constitution  would  be  rendered meaningless.  
The provisions of Sub-rules (1) and (2) of  Rule  6  of  the  1987  Rules  have,
therefore, to be read down to make it clear that not only a  Member  of  the
House, but any person interested, would also be entitled  to  bring  to  the
notice of the Speaker the fact that a  Member  of  the  House  had  incurred
disqualification under the Tenth Schedule to the Constitution of India.   On
receipt of such information, the Speaker of the House would be  entitled  to
decide under paragraph 6 of the Tenth Schedule  as  to  whether  the  Member
concerned  had,  in  fact,  incurred  such  disqualification  and  to   pass
appropriate orders on his findings.


20.   We, accordingly, dismiss all the appeals and uphold  the  judgment  of
the High Court impugned therein.


21.   In the facts and circumstances of the case, there will be no order  as
to costs.




                                                     ...................CJI.
                                                             (ALTAMAS KABIR)




                                                     .....................J.
                                                            (J. CHELAMESWAR)



                                                     .....................J.
                                                            (VIKRAMAJIT SEN)

New Delhi

Dated: January 17, 2013.

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