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PETITIONER:

DR. KASHINATH G. JALMI AND ANR. ETC. ETC.

Vs.

RESPONDENT:

SPEAKER AND ORS.

DATE OF JUDGMENT31/03/1993

BENCH:

VERMA, JAGDISH SARAN (J)

BENCH:

VERMA, JAGDISH SARAN (J)

SAWANT, P.B.

KASLIWAL, N.M. (J)

CITATION:

1993 AIR 1873 1993 SCR (2) 820

1993 SCC (2) 703 JT 1993 (3) 594

1993 SCALE (2)280

ACT:

Constitution of India, 1950:

Article 226--Writ--Dismissal at admission stage on ground of

laches--Whether valid.

Legislative Assembly--Speaker's order disqualifying members

under Tenth Schedule--Review by Speaker--Setting aside

disqualification orders--Writ in the nature of class action

challenging review order after ten months--Allegation that

disqualified members continue to hold public of-

fice--Dismissal by High Court on the ground of laches held

unjustified--Analogy of limitation provided under Section

81(1) of People's Representation Act, 1951 held

inapplicable--Distinction between writs enforcing personal

rights and writs relating to assertion of public rights in

the nature of class action held relevant--Motive and conduct

of petitioner held relevant only for denying costs but not a

justification to refuse examination of question of public

concern on merits.

Doctrine of laches.

Tenth Schedule--Legislative Assembly--Order of Speaker

disqualifying members on the ground of defection--Speaker

whether has implied power to review--Disqualification order.

Article 136--Appeal by special leave--Dismissal of writ

petitions by High Court on the ground of laches--Whether

susceptible to interference.

HEADNOTE:

R.S., R.M. and S.B. were elected as Members of the Goa

Legislative Assembly in the Elections held in November,

1989. Subsequently, R.S. assumed office of Chief Minister

and formed his Council of Ministers including R.M. and S.B.

as Ministers. Thereafter, the appellant (In C.A. 1094/92),

a Member of the Assembly, presented a petition to the

Speaker of the Assembly seeking disqualification of R.S. on

the ground that he had voluntarily given up the membership

of his political party. By its order

821

dated 15.2.91 the Speaker passed an order under Para 6 of

the Tenth Schedule of the Constitution disqualifying R.S. on

the ground of defection. R.S. filed a writ petition before

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the Goa Bench of the Bombay High Court challenging the order

of disqualification and by an interim order the High Court

stayed the operation of the disqualification order. During

the pendency of the writ petition the Speaker was removed

from office and a, deputy speaker was elected in his place

who began functioning as Speaker. R.S. filed an application

before the Acting Speaker seeking review of his

Disqualification order and on 83.91 the Acting Speaker

passed an order, in purported exercise of his power of

review under the Tenth Schedule, setting aside the

Disqualification order dated 15.2.91. Consequently tie writ

petition filed by R.S. challenging his disqualification

order was dismissed as not pressed, by the High Court on

8.1.92 the appellant flied a petition challenging the review

order dated 83.91 passed by the Acting Speaker on the ground

that the Speaker did not have any power to review the

earlier order of disqualification. Without going into the

merits of the case the High Court dismissed the petition at

the admission stage on the ground of laches. The decision

of the High Court was impugned before this Courts.

Subsequently, another member of the Assembly, appellant in

C.& 1096/92, also filed a writ petition challenging the

review order dated 83.91 passed by the Acting Speaker

setting aside the earlier order disqualifying R.S, on

similar grounds. The High Court also dismissed the same at

the admission stage for the same reason, ie. laches.

Against the order dismissing the writ petition an appeal was

preferred in this Court

In the connected appeal (CA 1095/92) the appellant applied

to the Speaker seeking disqualification of R.M. and S.B. on

the ground of defection and by his order dated 13.12.90

Speaker passed the order disqualifying R.M. and S.B. under

the Tenth Schedule. Both of them filed petitions

challenging the disqualification order and by an interim

order the High Court stayed the disqualification orders. In

the meantime, in a manner, similar to that in the case of

R.S., the Acting Speaker by his order dated 7.3.91, in

purported exercise of the review. set aside the orders dated

13.12.90 disqualifying R.M. and S.B. The appellant filed a

petition challenging the orders of review passed by the

Acting Speaker. It was also dismissed by the High Court on

the ground of laches. Against dismissal of the writ

petition an appeal was filed before this Court

822

In appeals to this Court, it was contended on behalf of the

appellants that (1) the mere delay in challenging the

legality of the authority under which respondents continue

to hold public office, after being disqualified as Members

of the Assembly, was not a valid justification for the High

Court to refuse to examine the main question of existence of

power of review in the Speaker acting under the Tenth

Schedule, since the discretion of the High Court under

Article 226 of the Constitution must be exercised

judicially, so as not to permit perpetuation of an

illegality, (2) the doctrine of laches does not apply where

declaration sought is of nullity, in order to prevent its

continuing operation, and laches is not relevant in the

domain of public law relating to public office, where the

purpose is to prevent an usurper from continuing to hold a

public office; (3) the power of review in the Speaker cannot

be implied from the provisions in the Tenth Schedule, and

the only remedy available to the aggrieved person is by

judicial review of the order of the disqualification; and

(4) that the motive and conduct of the petitioners-

appellants in such matters is not decisive or fatal to the

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enquiry claimed in the writ petition, inasmuch as the relief

claimed by them was not for their personal benefit but for

larger public interest and good governance of the State by

persons holding public offices.

On behalf of the respondents it was contended that (1) even

though there is no statutory limitation for filing a writ

petition, yet in a case like the present, the apt analogy is

of an election petition challenging an election, which is to

be filed within 45 days from the date of election of the

returned candidate, under Section 81(1) of the

Representation of the People Act, 1951, to indicate that

unless such a challenge is made promptly the courts would

refuse to examine such a question after the lapse of a

reasonable period; hence petitions filed after ten months of

the date of the order of review made by the Speaker were

rightly rejected on the ground of laches; (2) the doctrine

of laches applies as much to the writ of quo warranto, as it

does to a writ of certiorari; (3) in view of the finality

attaching to the order made by the Speaker under para 6 of

the Tenth Schedule the power of review inheres in the

Speaker for preventing miscarriage of justice, in situations

when the speaker himself is of the view that continuance of

his earlier order of disqualification would perpetuate

injustice; (4) the inherent power of review in the Speaker

must be read in the Tenth Schedule, at least upto 12th

November, 1991 when the Judgment in Kihoto Hollohan was

rendered declaring the availability of judicial

823

review against the Speaker's order of disqualification made

under para 6 of the Tenth Schedule; (5) only a limited

judicial review being available against the Speaker's order

of disqualification, as held by the majority in Kihoto

Hollohan, some power of review Inheres in the Speaker even

thereafter to correct palpable errors failing outside the

limited scope of judicial review, and (6) the appellants

were not only associated with R.S. at different times but

also they obtained benefits from him, thus, in view of the

oblique motive coupled with their conduct, the High Court

was justified in refusing to exercise its discretionary

powers under Article 226 of the Constitution at the behest

of the appellants; the power under Article 136 also being

discretionary this Court would also be justified in refusing

to interfere with the discretion so exercised by the High

Court.

Allowing the appeals, this Court,

HELD: 1. The judgment of the High Court that the writ

petitions were liable to be dismissed, merely on the ground

of laches cannot be sustained. [834-C]

2. The exercise of discretion by the Court even where the

application is delayed, is to be governed by the objective

of promoting public interest and good administration; and on

that basis it cannot be said that discretion would not be

exercised in favour of interference where it is necessary to

prevent continuance of usurpation of office or perpetuation

of an illegality. [839-F]

3. In the present case the claim is for the issue of a writ

of quo warranto on the ground that respondents are holding

public offices, having suffered disqualification as Member

of the Assembly subsequent to their election, and one of

them, continues to hold the high public office of Chief

Minister. The relief claimed in the present case in not the

conferment of a personal benefit to the petitioners, but for

cessation of the usurpation of public offices held by

respondents. Thus, the relief claimed by the appellants in

their writ petitions filed in the High Court being in the

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nature of a class action, without seeking any relief

personal to them, should not have been dismissed merely on

the ground of laches. [837 C-D, 839-H, 840-A]

3.1. The motive or conduct of the appellants, as alleged by

the respondents, can be relevant only for denying them the

costs even If their claim succeeds, but It cannot be a

justification to refuse to examine the

824

merits of the question raised therein, since that is a

matter of public concern and relates to the good governance

of the State itself [840 A-B]

4. The remedy of an election petition Is statutory, governed

by the limitation prescribed therein, unlike the remedy

under Article 226 of the Constitution. That apart, the

analogy which is more apposite, is the decision on questions

as to the disqualification of Members in accordance with

Article 103 in the case of a Member of Parliament or Article

192 in the case of a Member of a House of a Legislature of a

State. For raising a dispute, giving rise to any question

whether a Member of a House has become subject to any of the

disqualification mentioned in clause (1) of Article 102 or

191, as the case may be, there is no prescribed limitation,

and so also for challenging the decision rendered under

Article 103 or 192 by a writ petition. The question of the

disqualification of a Member on the ground of defection and

the Speaker's order thereon, rendered under the Tenth

Schedule, is of a similar nature and not based on the result

of an election which can be challenged only by an election

petition in accordance with the provisions of Representation

of the People Act, 1951. [834 F-H, 835-A]

A.G. v. Proprietor of the Bradford Canal, (1866) L.R. 2

Equity Cases 71, relied on.

Brundaban Nayak.V. Election Commission of India and Anr.,

[19651 3 S.C.R. 53, explained and held inapplicable.

The Lindsay Petroleum Company v. Prosper Armstrong Hurd,

Abram Farewell and John Kemp, (1874) L.R. 5 P.C. 221; The

Moon Mills Ltd. v. M.R. Meher, President, Industrial Court,

Bombay and Ors.,A.I.R. 1967 S.C. 1450; Maharashtra State

Road Transport Corporation v. Shri Balwant Regular Motor

Service Amravati & Ors., [1969] 1 S.C.R. 808; M/s. Tilok-

chand & Motichand & Ors. v. H.B. Munshi & Anr., [1969] 1

S.C.C. 110; Shri Vallabh Glass Works Ltd. & Anr. v. Union of

India & Ors., [1984] 3 S.C.C. 362; M/s Dehri Rohtas Light

Railway Company Ltd. v. District Board, Bhojpur & Ors.,

[1992] 2 S.C.C. 598; Emile Erlanger and Ors. v. The New

Sombrero Phosphate Company and Ors., (1878) 3 Appeal Cases

1218; Anachuna Nwakobi, The Osha of Obosi and Ors. v. Eugene

Nzekwu & Anr., (1964) 1 W.LR. 1019; Everett v. Griffiths,

(1924) 1 K.B. 941; R. v. Stratfort-on-Avon District Council

and Anr. ex parte Jackson, (1985) 3 All E.R. 769 and Caswell

and Anr. v. Dairy Produce Quota Tribunal for England and

Wales, (1990) 2 W.LR. 1320, held inapplicable.

825

5. The Speaker has no power of review under the Tenth

Schedule, and an order of disqualification made by him under

para 6, thereof Is subject to correction only by judicial

review. [841-F]

Khoto Hollohan v. Zachillu and Ors., [1992] Supp. 2 S.C.C.

651, referred to.

Observations in Patel Narshi Thakershi & Ors. v.

Pradyumansinghji Arjunsinghji A.I.R. 1970 S.C. 1273 to the

effect that the power to review is not inherent power and

must be conferred by law either specifically or by necessary

implications, relied on.

5.1.There is no scope for reading in-to the Tenth Schedule

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any of the powers of the Speaker which he otherwise has

while functioning as the Speaker in the House, to clothe him

with any such power in his capacity as the statutory

authority functioning under the Tenth Schedule of the

Constitution. Accordingly any power of the Speaker,

available to him while functioning in the House, is not to

be treated as his power of privilege as the authority under

the Tenth Schedule. [842 G-H, 843-A]

Rule 7(7) of the Members of the Goa Legislative Assembly

(Disqualification on grounds of Defection) Rules, 1986 and

Rule 77 of the Rules of Procedure and Conduct of Business of

the Goa Legislative Assembly held inapplicable.

6. Para 7 has to be treated as non-existent in the Tenth

Schedule from the very inception. As held by the majority

in Kihoto Hollohan judicial review is available against an

order of disqualification made by the Speaker under para 6

of the Tenth Schedule, notwithstanding the finality

mentioned therein. It is on account of the nature of

finality attaching by virtue of para 6, that the judicial

review available against the Speaker's order has been

labeled as limited in Kihoto Hollohan and the expression has

to be understood in that sense, distinguished from the wide

power in an appeal, and no more. Thus the Speaker's order

is final being subject only to judicial review, according to

the settled parameters of the exercise of power of judicial

review in such cases. The existence of judicial review

against the Speaker's order of disqualification made under

para 6 Is Itself a strong indication to the contrary that

there can be no Inherent power of review in the Speaker,

read in the Tenth Schedule by necessary Implication. [845 B-

E]

826

7. There is no merit in the submission that the power of

review inheres in the Speaker under the Tenth Schedule as a

necessary incident of his jurisdiction to decide the

question of disqualification; or that such a power existed

till 12th November, 1991 when the decision in Kihoto

Hollohan was rendered; or at least a limited power of review

inheres in the Speaker to correct any palpable error outside

the scope of judicial review. [845 F-G]

Kihoto Hollohan v. Zachillhu and Ors., [1992] Suppl. 2

S.C.C. 651, explained.

Shivdeo Singh & Ors. v. State of Punjab & Ors., A.I.R. 1963

S.C. 1909 and Grindlays Bank Ltd. v. Central Government

Industrial Tribunal & Ors., [1981] 2 S.C.R. 341,

distinguished.

8. The impugned orders of the High Court, dismissing writ

Petitions are setaside. The orders made by the Acting

Speaker in purported exerciseof power of review are nullity

and liable to be ignored. [847 E-F]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1094 of 1992.

WITH

Civil Appeal No.1095 of 1992.

AND

Civil Appeal No. 1096 of 1992.

From the Judgment and Order dated 4.2.92 & 24.2.92 of the

Bombay High Court in W.P. Nos.11, 8 & 70 of 1992.

R.K. Garg, Ram Jethmalani, V.A. Bobde,Harish N. Salve, K.J.

John, Ms. Deepa Dixit, Rakesh Gosain, Ms. Rani Jethmalani,

P.K. Dev and Ms. Shanta Ramchand for the Appellants.

Ashok Desai, F.S. Nariman, R.F. Nariman, P.H. Parekh, Sunil

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Dogra, J.D. Dwarka Das and S.C. Sharma for the Respondents.

The Judgement of the Court was delivered by

827

VERMA, J. These appeals, by special leave, arise from writ

petition Nos.11 of 1992,8 of 1992 and 70 of 1992, all

dismissed by the Bombay High Court at the Goa Bench merely

on the ground of laches; and they involve for decision the

common question relating to the power of review, if any, of

the Speaker to review his decision on the question of

disqualification of a Member of the House, rendered under

the Tenth Schedule to the Constitution. In those writ

petitions, the orders passed by the Speaker, in purported

exercise of the power of review, setting aside the earlier

orders of disqualification of certain Members made on merits

by the Speaker, were challenged on the ground that the

Speaker has no such power of review. The High Court took

the view, that the writ petitions were filed after

considerable delay, and, therefore, upholding the

preliminary objection, had to be dismissed merely. on the

ground of laches; and, therefore, merits of the contention

that the Speaker had no such power of review was not

considered. The main questions which arise for decision in

these appeals are, therefore, two; namely

(1)LACHES Are the impugned orders of the High

Court dismissing the writ petitions merely on

the ground of laches susceptible to

interference under Article 136 of the

Constitution in the present case; and

(2)POWER OF REVIEW If so, does the Speaker,

acting as the authority under the Tenth

Schedule of the Constitution, have no power of

review, so that any order made by him in

purported exercise of the power of review is a

nullity?

The further question of the consequence and nature of relief

to be granted, would arise only if these questions are

answered in favour of the appellants.

Ravi S. Naik, Ratnakar M. Chopdekar and Sanjay Bandekar were

duly elected Members of the Goa Legislative Assembly in the

elections held in November, 1989. On 25.1.1991, Ravi S.

Naik assumed the office of the Chief Minister of the State

of Goa and he formed his Council of Ministers, which

included Chopdekar and Bandekar as Ministers. On the same

day, i.e. on 25.1.1991, Dr. Kashinath Jalmi, also a Member

of the Legislative Assembly, presented a petition to the

Speaker, Surendra V. Sirsat seeking disqualification of Ravi

S. Naik as a Member of the Legis-

828

lative Assembly on the ground that he had voluntarily given

up the Membership of his political party. On 16.2.1991, the

Speaker, Surendra V. Sirsat passed an order under para 6 of

the Tenth Schedule to the Constitution, disqualifying Ravi

Naik on the ground of defection. On 16.2.1991, Ravi Naik

filed writ petition No.48 of 1991 at the Goa Bench of the

Bombay High Court challenging the order of his

disqualification, made by the Speaker under the Tenth

Schedule to the Constitution. On 18.2..1991, the High Court

passed an interim order in that writ petition staying

operation. of the order of disqualification made by the

Speaker. During the pendency of this writ petition, on

27.2.1991, Simon Peter D'Souza was elected Deputy Speaker of

the Goa Legislative Assembly; on 4.3.1991 Surendra V. Sirsat

was removed from the office of Speaker and the Deputy

Speaker, Simon Peter D'Souza began functioning as the

Speaker in place of Surendra V. Sirsat. The same day, i.e.

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on 4.3.1991, Ravi S. Naik made an application to Simon Peter

D'Souza, the Deputy Speaker functioning as the Speaker of

the Goa Legislative Assembly, for review of the order dated

15.2.1991 of his disqualification made by the Speaker,

Surendra V. Sirsat under the Tenth Schedule. On 8.3.1991,

the Acting Speaker, Simon Peter D'Souza made an order, in

purported exercise of the power of the- review under the

Tenth Schedule, setting aside the order dated 15.2.1991 made

by the Speaker, Surendra V. Sirsat disqualifying Ravi S.

Naik as a Member of the Goa Legislative Assembly.

Thereafter, Writ Petition No.48 1991 filed by Ravi Naik

challenging the order of the his disqualification made by

the Speaker on 15.2.1991 was dismissed as not pressed by

him, on 22.4.1991.

On 8.1.1992, Writ Petition No.11 of 1992 was filed by Dr.

Kashinath Jalmi and Ramakant Khalap challenging the order of

review dated 8.3.1991 passed by the Acting Speaker, inter

alia on the ground that the Speaker did not have any power

to review the earlier order of disqualification made under

the Tenth Schedule to the Constitution of India. The High

Court by the order dated 4.2.1992 upheld the preliminary

objection of Ravi S. Naik that the writ it petition filed

ten months after the date of the impugned order, was liable

to be dismissed at the admission stage on the ground of

laches. This order, dismissing the writ petition for this

reason alone, is challenged in Civil Appeal No. 1094 of

1992.

After the dismissal of writ petition No.11 of 1992, another

Member of the Goa Assembly, Churchill Alemao filed writ

petition No.70 of 1992, also challenging the order of review

dated 8.3.1991 made by the Acting

829

Speaker setting aside the earlier order dated 15.2.1991 made

by the Speaker disqualifying Ravi Naik, on similar grounds.

The High Court dismissed writ petition No.70 of 1992 also at

the admission stage, for the same reason, on the ground of

laches. Civil Appeal No.1096 of 1992 by Churchill Alemao is

against the order dated 24.2.1992 dismissing writ petition

No.70 of 1992.

On 10.12.1990, Ramakant D. Khalap applied to the Speaker,

Surendra V. Sirsat seeking disqualification of Sanjay

Bandekar and Ratnakar Chopdekar as Members of the Goa

Legislative Assembly, for the defection under the Tenth

Schedule. On 11.12.1990, the Speaker served notices on

these Member. On 13.12.1990, Bandekar and Choopdekar filed

writ petition No.321 of 1990 at the Goa Bench of the Bombay

High Court challenging the show cause notices issued to them

by the Speaker. On the same day i.e. on 13.12.1990, the

Speaker, Surendra V. Sirsat made the orders disqualifying

Bandekar and Chopdekar as Members of the Assembly, under the

Tenth Schedule. On 14.12.1990. Writ Petition No.321 of 1990

was amended to challenge the orders of disqualification

dated 13.12.1990 made by the Speaker against Bandekar and

Chopdekar. The Writ Petition was admitted by the High

Court, and an interim order made staying the orders of

disqualification dated 13.12.1990 made by the Speaker.

Unlike the writ petition No.48 of 1991 by Ravi Naik which

was dismissed as not pressed on 22.4.1991 after the order of

review made by the Deputy Speaker, writ petition No.321 of

1990 by Bandekar and Chopdekar is still pending in the High

Court with the interim order made therein subsisting.

In the meantime, in a manner similar to that in the case of

Ravi Naik, the Deputy Speaker functioning as the Speaker, on

applications made to him for the purpose, passed orders on

7.3.1991, purporting to exercise the power of review,

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whereby the orders dated 13.12.1990 made by the Speaker

disqualifying Bandekar and Chopdekar under the Tenth

Schedule have been set aside. This led to the filing of

writ petition No. 8 of 1992 by Ramakant D. Khalap on

7.1.1992 at the Goa Bench of the Bombay High Court,

challenging the orders of the review dated 7.3.1991 passed

by the Acting Speaker. This writ petition also, has been

similarly dismissed merely on the ground of laches on

4.2.1992. Civil Appeal No.1095 of 1992 has, therefore, been

filed against dismissal of writ petition No.8 of 1992.

830

This is how the same questions relating to laches justifying

dismissal of these writ petitions, and the power of review,

if any, of the Speaker under the Tenth Schedule, arise for

decision in these appeals.

The rival contentions may now be mentioned. Shri Ram

Jethmalani for the appellant in C.A. No.1094 of 1992, Shri

Harish Salve for the appellant in C.A. No.1095 of 1992 and

Shri R.K. Garg for the appellant in C.A. No.1096 of 1992

advanced substantially similar arguments, to contend that

dismissal of the writ petitions by the High Court on the

ground of laches is insupportable, in the present context,

where challenge to the order of review made by the Speaker

under the Tenth Schedule is on the ground of nullity, since

the Speaker has no power of review under Tenth Schedule, and

that the order of review being a nullity, must be so

declared. In reply, Shri F.S. Nariman for respondent Ravi

S. Naik in Civil Appeal Nos. 1094 and 1096 of 1992, and Shri

Ashok Desai for respondents Bandekar and Chopdekar in Civil

Appeal No.1095 of 1992, strenuously urged that the exercise

of power under Article 226 of the Constitution being discre-

tionary, the refusal to exercise that power at the instance

of the writ petitioners was a proper exercise of the

discretion, which does not call for any interference by this

court in exercise of its power under Article 136 of the

Constitution. Both the learned counsel, in their reply,

further submitted, that by the very nature of the high

office of the Speaker and the finality attaching to the

order made by the Speaker under para 6 of the Tenth

Schedule, the power of the review inheres in the Speaker for

preventing miscarriage of justice, in situations when the

Speaker himself is of the view that continuance of his

earlier order of disqualification would perpetuate

injustice. It was further submitted by them, in the

alternative, that in view of the limited scope of judicial

review of the Speaker's order of disqualification made under

para 6 of the Tenth Schedule, as held in the majority

opinion in Kihoto Hollohan v. Zachillhu and Ors., [1992]

Supp. 2 SCC 651, it is implicit that at least a limited

power of review inheres in the Speaker, to correct palpable

errors outside the scope of the limited judicial review

available against the order of disqualification made by the

speaker under the Tenth Schedule. It was urged by them,

that the alleged infirmities in the orders of

disqualification made in the present case by the Speaker

fell within, at least this limited power of review which

inheres in the Speaker. Shri Nariman, as well as Shri

Desai, strongly relied on the majority opinion in Kihoto

Hollohan to support these submissions.

831

The last alternative submission of Shri Nariman was, that in

case there is no power of review in the Speaker under the

Tenth Schedule, as a result of which the orders made by the

Acting Speaker in purported exercise of that power have to

be declared nullity and ignored, then writ petition No.48 of

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1991 by Ravi S. Naik being dismissed as not pressed on

22.4.1991 because the order of his disqualification had been

set aside by the order of review, must be revived along with

the interim stay granted therein to enable Ravi S. Naik to

pursue the remedy which he had invoked, to challenge the

order of his disqualification which is open to judicial

review. This submission of last resort made by Shri

Nariman, was strongly opposed by Shri. R.K. Garg appearing

for the appellant Church Alemao. On the other hand, Shri

Ram Jethmalani appearing for the appellants in C.A. No.1094,

not only did not oppose such a direction being given, but in

his opening address itself suggested this as the equitable

course to adopt. But for the stand taken on this aspect,

there was no difference in the submissions of Shri Garg and

Shri Jethmalani.

Both sides attempted to refer to the facts leading to the

making of the orders of disqualification of the Members, and

the merits thereof However, we do not propose to advert to

them, as we had indicated to the learned counsel at the

hearing, since those aspects will have to be gone into , in

the first instance by the High Court, on the view we are

taking in these appeals and, therefore, we would like to

avoid the likelihood of any possible prejudice to either

side resulting from any reference made by us to the same.

Accordingly, we are confining ourselves only to the facts

and the arguments relating to the aforesaid two questions,

which alone arise before us. We may add, that for the

purpose of these appeals, it has been assumed by both sides

that the Deputy Speaker functioning as the Speaker would

have the powers of the Speaker under the Tenth Schedule

including that of review, if any. The further question

whether the Deputy Speaker, who discharging the functions of

the Speaker, has all the powers of the Speaker under the

Tenth Schedule is, therefore, undisputed for the present

purpose.

We shall now consider the aforesaid two main questions which

arise for decision in the present case. Any further

question arising for decision, in case both these questions

are answered in favour of the appellants, will be considered

thereafter.

832

LACHES-

The High Court has taken the view that the impugned orders

of review having been made by the Acting Speaker on 7th and

8th March, 1991, the writ petitions challenging them filed

on 7.1.1992, 8.1.1992 and 10.2.1992 were highly belated and,

therefore, liable to be dismissed merely on the ground of

laches. It is for this reason that they were dismissed at

the admission stage itself, sustaining the preliminary

objection taken on this ground by Ravi S. Naik, Chopdekar

and Bandekar, in whose favour the orders of review had been

made. The High Court has referred to certain decisions of

this Court for applying the doctrine of laches, and declined

to consider the merits of the main point raised in the writ

petitions, that the Speaker does not have any power of

review acting under the Tenth Schedule. The High Court has

also held as untenable, the explanation given by the writ

petitioners that uncertainty of the law settled only by the

decision of this Court in Kihoto Hollohan (supra) rendered

on 12th November, 1991 was the reason for not filing those

writ petitions earlier. Learned counsel for the appellants

have assailed application of the doctrine of laches in the

present situation, and also contended that if any

explanation was needed for the intervening period, pendency

of the question of constitutional validity of Tenth Schedule

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itself in this Court was sufficient to explain the period up

to the date of the decision, and the writ petitions were

filed soon thereafter. It was also submitted by learned

counsel for the appellants, that the continuance in office

of disqualified persons, even now, provides recurring cause

of action, since the continuance in office without lawful

authority of these persons, one of whom is the Chief

Minister of the State of Goa, is against public policy and

good administration. It was submitted, the Court cannot

decline to examine the validity of the authority under which

they continue to hold office. On this basis it was urged

that the mere delay, if any, in challenging the legality of

the authority under which these three persons continue to

hold office, after being disqualified as Members of the

Assembly, could not be a valid justification for the High

Court to refuse to examine the main question of existence of

power of review in the Speaker acting under the Tenth

Schedule, since the discretion of the High Court under

Article 226 of the Constitution must be exercised

judicially, so as not to permit perpetuation of an

illegality. Shri Jethmalani also submitted, that the

doctrine of laches does not apply where declaration sought

is of nullity, in order to prevent its continuing operation,

and laches is not relevant in the domain of public

833

law relating to public office, where the purpose is to

prevent an usurper from continuing to hold a public office.

Shri Harish Salve adopted these arguments and further

submitted that Dr. Kashinath Jalmi and Ramakant Khalap had

consistently taken the stand, that the Speaker's order of

disqualification is final and not open to review by anyone.

He submitted, that for this reason no prevarication in their

stand can be attributed to either of them, as has been done

against Churchill Alemao, by the learned counsel for the

respondents, for his support to Ravi Naik during the

intervening period. It was further urged by the learned

counsel for the appellants, that the motive and conduct of

the writ petitioners in such matters is not decisive or

fatal to the enquiry claimed in the writ petition, in as

much as the relief claimed in the writ petition was not for

personal benefit of the writ petitioner but for larger

public interest and good governance of the State of Goa by

persons holding public offices, including that of the Chief

Minister, only by lawful authority.

Both Shri F.S. Nariman and Shri Ashok Desai supported the

Judgment of the High Court, and strenuously urged that the

High Court in exercise of its discretionary power under

Article 226 of the Constitution was justified in refusing to

exercise that power at the behest of the writ petitioners

who were disentitled to grant of the relief on account of

their conduct and motive for filing the writ petition. It

was submitted by them that the writ petitioners, namely,

Churchill Alemao, Dr. Kashinath Jalmi and Ramakant Khalap

are all persons who, at different times, were associated

with Ravi S.Naik as Chief Minister and were also obtaining

benefit from him, which conduct coupled with their motive of

getting more political power to themselves, disentitled them

from claiming the relief. Shri Nariman submitted that the

doctrine of laches applies equally to a writ of quo

warranto, as it does to a writ of certiorari. It was also

submitted by learned counsel for the respondents that the

explanation given for the delay in filing the writ

petitions, challenging the orders of review made by the

Acting Speaker, is facile and untenable It was submitted,

that notwithstanding the pendency of the question of the

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validity of the Tenth Schedule in this Court, writ petitions

were being filed challenging the orders made by the Speakers

under the Tenth Schedule. It was submitted that all the

writ petitioners, in view of their status in life, were

fully aware that the Speaker's order of review could be

challenged by a writ petition, even before the decision

rendered by this Court on 12th November, 1991

834

in Kihota Hollohan. The main thrust of the argument of the

counsel for the respondents was, that in these circumstances

the High Court was justified in dismissing the writ

petitions at the threshold in exercise of its discretionary

power under Article 226 of the Constitution, and, therefore,

the power under Article 136 of the Constitution also being

discretionary, this Court would be justified in refusing to

interfere with the discretion so exercised by the High

Court.

Having given our anxious consideration to the forceful

submissions of learned counsel for the both sides, we find

ourselves unable to sustain the judgment of the High Court

that the writ petitions were liable to be dismissed, merely

on the ground of laches.

One of the submissions of Shri Nariman was, that even though

there is no period of limitation prescribed by statute for

filing a writ petition, yet in a case like the present, the

apt analogy is of an election petition calling in question

an election, which is required to be filed within 45 days

from the date of election of the returned candidate, as

provided in Section 81(1) of the Representation of the

People Act, 1951, to indicate that unless such a challenge

is made promptly the courts would refuse to examine such a

question after the lapse of a reasonable period. On this

basis, he argued that a writ petition filed after ten months

of the date of the order of review made by the Speaker

acting under the Tenth Schedule, must be treated as unduly

delayed and is liable to rejection on the ground of laches,

as has been done by the High Court in the present case. We

are unable to accept this part of the submission since it is

not an apt analogy.

The remedy of an election petition is statutory, governed by

the limitation prescribed therein, unlike the remedy under

Article 226 of the Constitution. That apart, the analogy

which is more apposite, is the decision on questions as to

the disqualification of Members in accordance with Article

103 in the case of a Member of Parliament or Article 192 in

the case of a Member of a House of a Legislature of a State.

For raising a dispute, giving rise to any question whether a

Member of a House has become subject to any of the

disqualification mentioned in clause (1) of Article 102 or

191, as the case may be, there is no prescribed limitation,

and so also for challenging the decision rendered under

Article 103 or 192 by a writ petition. The question of the

disqualification of a Member on the ground of defection and

the Speaker's order thereon, rendered under the

835

Tenth Schedule, is of a similar nature and not based on the

result of an election which can be challenged only by an

election petition in accordance with the provisions of

Representation of the People Act, 1951.

The decision by a constitution bench in Brundaban Nayak v.

Election Commission of India and another, [1965] 3 SCR 53

indicates the significance of deciding the question of

disqualification of a Member as soon as it arises, even at

the instance of a citizen, since 'the whole object of

democratic elections is to constitute legislative chambers

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composed of members who are entitled to that status, and if

any member forfeits that status by reason of a subsequent

disqualification, it is in public interest,'............

that the matter was decided.

There is no indication in Brundaban Nayak, that the delay in

raising the question of disqualification provides

justification for refusing to decide the same, and the

emphasis really is on a prompt decision by the competent

authority on the question being raised, since it is not the

interest of the constituency which such a Member represents,

to delay the decision. This decision is an indication that

the authority competent to decide the question of

disqualification must act promptly in deciding the same,

once it is raised even by a citizen, in order to prevent a

disqualified Member from representing the constituency after

incurring a disqualification subsequent to his election, so

long as the question remains a live issue during the tenure

of the Member. This aspect is significant for dealing with

the question of laches in the present case.

In order to justify dismissal of the writ petitions for

laches Shri Nariman placed reliance on certain decisions,

some of which have been referred by the High Court. Shri

Nariman argued that the doctrine of laches applies as much

to the writ of quo warranto, as it does to a writ of

certiorari, and that the oblique motives of the petitioner

together with his conduct may disentitled him to grant of

the relief claimed by such a petition. We now refer to some

of these decisions.

The basic decision for submission on the doctrine of laches,

relied on, is The Lindsay Petroleum Company v. Prosper

Armstrong Hurd, Abram Farewell and John Kemp, 1874 L.R. 5 PC

221 which has been followed in the decisions of this Court

in The Moon Mills Ltd. v. M.R. Meher, President, Industrial

Court, Bombay and Ors., AIR 1967 SC 1450 and Maharashtra

State Road Transport Corporation v. Shri Balwant Regular

Motor Service

836

Amravati & Ors., [1969] 1 SCR 808. In The Moon Mills Ltd, a

writ of certiorari was sought to challenge a decision

affecting the rights of the Petitioner, wherein the question

arose whether the petitioner could be denied the relief on

the ground of acquiescence or laches. In that context it

was observed that the issue of a writ of certiorari is a

matter of sound discretion, and that 'the writ will not be

granted if there is such negligence or omission on the part

of the applicant to assert his right as taken in conjunction

with the lapse of time and other circumstances, causes

prejudice to the adverse party.' It was observed, that the

exercise of discretion under Article 226 to issue a writ of

certiorari is based on the principle to a great extent,

though not identical with, similar to the exercise of

discretion in the Court of Chancery.' For this principle,

involving the doctrine of laches in courts of equity,

reference was made to the observation of Sir Barnes Peacock

in Lindsay Petroleum Co. The decision was followed in, and

the principle reitered in Maharashtra State Road Transport

Corporation again in the context of the discretion under

Art. 226 of the Constitution to issue a %Wit of certiorari.

Like all equitable principles, the doctrine of laches

applies where it would be unjust to give a remedy to the

petitioner, who is disentitled to grant of the same by his

conduct or any other relevant circumstances, including the

creation of third party rights during the intervening

period, which are attributable to the laches of the

petitioner.

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Strong reliance was placed on the decision in M/s Tilokchand

Motichand & Ors. v. H.B. Munshi & Anr., [1969] 1 SCC 110,

wherein relief under Article 32 of the Constitution was

refused on the ground of delay, to contend that if delay can

be fatal under Article 32, itself a fundamental right, it is

more so in a petition under Article 226 of the Constitution,

wherein grant of the relief is discretionary. The decision

of this Court in Shri Vallabh Glass Works Ltd. and Anr. v.

Union of India and Ors., [1984] 3 SCC 362 and M/s Delhi

Rohtas Light Railway Company Lid v. District Board, Bhojpur

and Ors., [1992] 2 SCC 598 were also cited on the point. In

Shri Vallabh Glass Words Ltd, a writ petition by way of

alternative remedy was filed after expiry of statutory

period of limitation prescribed for filling suit for the

same claim, and yet that alone was not held to be fatal

taking the view that reasonableness of delay in filing the

writ petition is to be assessed having regard to the facts

and circumstances of the case, since grant of the relief

under Article 226 of the Constitution is a matter of sound

judicial discretion and governed by the doctrine of laches.

837

In M/s Dehri Rohtas Light Railway Company Limited,

Tilokchand Motichand's case was distinguished and it was

indicated that the test is not to physical running of time'

and 'the real test to determine delay in such cases is that

the petitioner should come to the writ court before a

parallel right is created.'

It is significant that all these decisions relate to

enforcement of personal rights, wherein a writ of certiorari

was claimed for quashing some decision adverse to the

petitioner and neither of them related to assertion of a

public right in the nature of a class action. In the

present case the claim is for the issue of a writ of quo

warranto on the ground that Ravi S. Naik, Chopdekar and

Bandekar are holding public office, having suffered

disqualification as Member of the Assembly subsequent to

their election, and of them, Ravi S. Naik continues to hold

the high public office of Chief Minister of Goa. The relief

claimed in the present case is not the conferment of a

personal benefit to the petitioners, but for cessation of

the usurpation of public offices held by these persons, if

the contention of the petitioners be right that orders of

review setting aside the earlier orders of disqualification

made by the Speaker under the Tenth Schedule are nullity

The decision of the Privy Council in the Lindsay Petroleum

Company was followed by the House of Lords in Emile Erlanger

and Ors. v. The New Sombrero Phosphate Company and Ors.,

[1878] 3 Appeal Cases 1218 wherein reliance on the doctrine

of laches by Courts of Equity for refusing relief where it

would be practically unjust to grant the same, was

reiterated. It was also reiterated that two circumstances

always important in such cases are the length of the delay

and the nature of the acts done during the interval, which

might affect the justice of the cause.

Once again this principle was reiterated by the Privy

Council in Anachuna Nwakobi, The Osha of Obosi and Ors. v.

Engene Nzekwu and Anr., [1964] 1 WLR 1019 quoting the same

passage from The Lindsay Petroleum Company.

None of these cases relate to the writ of quo warranto and

in them the relief claimed was only for the personal benefit

of the claimant. We are not persuaded to hold that on the

basis of these decisions, some of which are referred by the

High Court, the writ petitions in the present case could

have been dismissed merely on the ground of laches of the

petitioners.

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838

We would now refer to the contention of Shri Nariman that

this principle attracting the doctrine of laches equally

applies to a writ of Quo Warranto, sought in the present

case. For this purpose, Shri Nariman placed reliance on the

decision in Everett v. Griffiths, [1924] 1 K.B. 941 at 959

in addition to Halsbury's Law of England, Fourth Edition,

Reissue, Volume 16, Para 926.

In Halsbury's Law of England the statement of law is based

primarily on the decision of the Privy Council in The

Lindsay Petroleum Company and those following it. We have

already indicated the inapplicability of those decisions in

the present case. At the same place one of the decisions

referred to, in foot note 3 of para 926, is A.G. v.

Proprietors of the Bradford Canal (1866) LR 2 Equity Cases

71) for the proposition that "Laches is not imputable to the

Crown or to the Attorney General suing on behalf of the

public.' In this decision distinction was drawn between the

claim on behalf of the public and that by an individual

plaintiff indicating that even though delay or laches may be

attributable to an individual plaintiff, it may not be so to

an action brought on behalf of the public. This is more so,

when the grievance made is that a person continues to hold a

public office without the authority of law.

Shri Nariman laid great stress on Everett v. Griffuths,

(1924) 1 K.B. 941 at page 959 where it is stated:

"It is plain, however, that in quo warranto

proceedings the Court can and will inquire

into the conduct and motives of the relator."

Reference is made to a passage from Halsbury's Laws of

England and some earlier decisions which have been referred

for treating the point as well settled. These observations

were made after examining the claim on merits, and in view

of the fact that the plaintiff was known for his frequent

persistent and fruitless litigation proceedings, having

commenced primarily with the motive of resentment. In spite

of these strong observations in the judgment about the

conduct and motive of the plaintiff the court did not refuse

to go into the points raised, for that reason alone. In our

opinion this decision can not persuade us to hold that the

dismissal at the admission stage of the present petitions by

the High Court, on the ground merely of laches can be

sustained, when the alleged usurpation of the public

offices, including that of the Chief Minister of the State

of Goa, continues.

839

Reference was made by Shri Nariman as well as Shri Ashok

Desai to Rules 1 and 4 of Order 53 of the Rules of Supreme

Court and Section 30 of the Supreme Court Act, 1981

(England) wherein limitation is prescribed for application

for judicial review and delay in applying for relief 'LS a

ground for denying the relief, unless the Court considers

that there is good reason for extending the period of making

the application. It was urged that these provisions are

substantially the same as the earlier English Practice

according to which, as held in Everett v. Griffuths (supra)

the order is not issued as of course, and the conduct and

motives of the applicant may be enquired into. Reference

was also made to R. v. Stratford-on-Avon District Council

and Anr., ex parts Jackson (1985) 3 All ER 769 which was

followed by the House of Lords in Caswell and Another v.

Dairy Produce Quota Tribunal for England and Wales [1990] 2

WLR 1320.

In our opinion, the position remains the same. Emphasis in

these decisions is on public interest and good

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administration, and the jurisdiction of the Court to extend

time in suitable cases for making such an application. In

Caswell, the House of Lords took into account the larger

public interest for the view that the interest of good

administration required non-interference with the decision

which was challenged after a lapse of a considerable time,

since any interference at that stage, when third party

interests had also arisen, would be detrimental to good

administration.

In our opinion the exercise of discretion by the court even

where the application is delayed, is to be governed by the

objective of promoting public interest and good

administration; and on that basis it cannot be said that

discretion would not be exercised in favour of interference

where it is necessary to prevent continuance of usurpation

of office or perpetuation of an illegality.

We may also advert to a related aspect. Learned counsel for

the respondents were unable to dispute, that any other

member of the public, to whom the oblique motives and

conduct alleged against the appellants in the present case

could not be attributed, could file such a writ petition

even now for the same relief, since the alleged usurpation

of the office is continuing, and this disability on the

ground of oblique motives and conduct would not attach to

him. This being so, the relief claimed by the appellants in

their writ petitions filed in the High Court being in the

nature of a class action, without seeking any relief

personal to them, should not

840

have been dismissed merely on the ground of laches. The

motive or conduct of the appellants, as alleged by the

respondents, in such a situation can be relevant only for

denying them the costs even if their claim succeeds, but it

cannot be a justification to refuse to examine the merits of

the question raised therein, since that is a matter of

public concern and relates to the good governance of the

State itself

Shri R.K. Garg submitted that laches of the appellants can

not legitimise usurpation of office by Ravi S. Naik,

Chopdekar and Bandekar; and Shri Jethmalani submitted that

manifest illegatlity will not be sustained solely on the

ground of laches when it results in continuance in a public

office of a person without lawful authority. The fact that

the situation continues unaltered, since these persons

continue to hold the public offices, to which they are

alleged to be disentitled, is in our opinion sufficient to

hold that the writ petitions ought not to have been

dismissed merely on the ground of laches at the admission

stage, without examining the contention on merits that these

offices including that of the Chief Minister of the State,

are being held by persons without any lawful authority. The

dismissal of the writ petitions by the High Court merely on

this ground can not, therefore, be sustained.

The further question now is of the availability of power of

review in the Speaker under the Tenth Schedule.

POWER OF REVIEW

The challenge to the orders dated 7th and 8th March, 1991

made by the Acting Speaker under the purported exercise of

power of review, setting aside the earlier orders of the

Speaker disqualifying Ravi S. Naik, Chopdekar and Bandekar

under the Tenth Schedule, is made by the appellants on the

ground that the Speaker does not have any power of review

under the Tenth Schedule. It was stated in Patel Narshi

Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, AIR

1970 SC 1273, thus

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"It is well settled that the power to review

is not an inherent power. It must be

conferred by law either specifically or by

necessary implication."

This position is not disputed before us. Admittedly, there

is no express provision conferring the power of review on

the Speaker in the

841

Tenth Schedule. The only question therefore, is whether the

Speaker acting as the authority under the Tenth Schedule has

the power of review by necessary implication, empowering him

to set aside the earlier order of disqualification made by

him on merits.

On behalf of the appellants it was contended that such a

power of review in the Speaker can not be implied from the

provisions in the Tenth Schedule, and the only remedy

available to the aggrieved Member is by judicial review of

the order of disqualification. In reply it was contended on

behalf of the respondents, that the power of review inheres

in the Speaker under the Tenth Schedule, in view of the

finality attaching to the order made under.para 6 of the

Tenth Schedule. It was submitted that this inherent power

of review in the Speaker must be read in the Tenth Schedule,

at least up to 12th November, 1991 when the Judgment in

Kihoto Hollohan was rendered declaring the availability of

judicial review against the Speaker's order of

disqualification made under para 6 of the Tenth Schedule.

It was further submitted by learned counsel for the

respondents, that only a limited judicial review being

available against the Speaker's order of disqualification,

as held by the majority in Kihoto Hollohan, some power of

review inheres in the Speaker even thereafter to correct

palpable errors falling outside the limited scope of

judicial review. It was then submitted, that the defects in

the orders of disqualification made by the Speaker in the

present case, which were corrected by review, were such

defect which come within the ambit of the limited power of

review available to the Speaker in addition to availability

of judicial review as declared in Kihoto Hollohan. Both

sides referred to the merits of the orders of dis-

qualification made by the Speaker but we refrain from

adverting to this aspect as indicated earlier, in view of

the conclusion reached by us that the Speaker has no power

of review under the Tenth Schedule, and an order of

disqualification made by him under para 6 is subject to

correction only by judicial review as held in Kihoto

Hollohan. Accordingly, the alleged defects would require

examination by judicial review in the writ petitions filed

in the High Court challenging the orders of

disqualification.

Shri Nariman contended that the power of review inheres in

the Speaker under the Tenth Schedule as a necessary incident

of his otherwise plenary jurisdiction to decide the question

of disqualification. He submitted that according to the

majority in Kihoto Hallohan only 'limited scope of judicial

review' is available, and, therefore, the power of review

842

inheres in the Speaker to review his own orders on grounds

analogous to those in Order 47, Rule 1, Code of Civil

Procedure. In support of this submission Shri Nariman placed

reliance on the decisions in Shivdeo Singhs and Ors. v.

State of Punjab and Ors., AIR 1963 SC 1909 and Grindlays

Bank Ltd. v. Central Government Industrial Tribunal and Ors.

[1981] 2 SCR 341. Another limb of Shri Nariman's

submission is that the majority opinion in Kihoto Hollohan

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does not declare para 7 of the Tenth Schedule to be

unconstitutional from the inception, and Article 13 having

no application to a constitutional amendment, the existence

of para 7 in the Tenth Schedule till the judgment was

rendered in Kihoto Hollohan on 12th November, 1991 must be

accepted, and the provisions in the Tenth Schedule,

including para 7 therein, must be examined for determining

the implied power of review in the Speaker till 12th

November, 1991. On this basis, it was submitted that the

finality declared in para 6 of the Tenth Schedule coupled

with the ouster of judicial review in para 7 re-enforces

existence of the implied power of review in the Speaker at

least till 12th November, 1991, prior to which the

impugned orders of review were made in the present case. A

further submission made by Shri Nariman was that by virtue

of para 6(2) read with para 8 of the Tenth Schedule, the

general rules of procedure as well as Rule 7(7) of the

Members of the Goa Legislative Assembly (Disqualification on

ground of Defection) Rules, 1986 applied, under which the

Speaker ordinarily has the power of review. In this

connection, reference was made particularly to Rule 77 of

the Rule of Procedure and Conduct of Business of the Goa

Legislative Assembly, regarding breach of privilege which

enables the Speaker to reconsider his earlier decision, and

Rule 7(7) of the Members of the Goa Legislative Assembly

(Disqualification on grounds of defection) Rules, 1986,

relating to the procedure. It was submitted that these

general rules relating to Speaker's power while dealing with

a breach of privilege can be read to confer an express

power of review.

The last limb of Shri Nariman's contention may be disposed

of, at the outset. There is no scope for reading into the

Tenth Schedule any of the powers of the Speaker which he

otherwise has while functioning as the Speaking in the

House, to clothe him with any such power in his capacity as

the statutory authority functioning under the Tenth Schedule

of the Constitution. This is well settled by the decisions

of the Court relating to Speaker's orders under the Tenth

Schedule. Accordingly, any power of the Speaker, available

to him while functioning in the House, is not to be

843

treated as his power or privilege as the authority under

the Tenth Schedule.

The majority opinion in kihoto Hollohan was pressed into

service by Shri Nariman as well as Shri Ashok Desai to

support several aspects of their submissions. We may now

refer to that opinion.

In Kihoto Hollohan there was no difference between the

majority and minority opinions on the nature of finality

attaching to the Speaker's order of disqualification made

under para 6 of the Tenth Schedule, and also that para 7

therein was unconstitutional in view of the non-compliance

of the proviso to clause 2 of Article 368 of the

Constitution, by which judicial review was sought to be

excluded. The main difference in the two opinions was, that

according to the majority opinion this defect resulted in

the constitution standing amended from the inception with

insertion of the Tenth Schedule minus para 7 therein, while

according to the minority the entire exercise of

constitutional amendment was futile and an abortive attempt

to amend the constitution, since Para 7 was not severable.

According to the minority view, all decisions rendered by

the several Speakers under the Tenth Schedule were,

therefore, nullity and liable to be ignored. According to

the majority view, para 7 of the Tenth Schedule being

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unconstitutional and severable, the Tenth Schedule minus

para 7 was validly enacted and, therefore, the orders made

by the Speaker under the Tenth Schedule were not nullity but

subject to judicial review. On the basis of the majority

opinion, this Court has exercised the power of judicial

review over the orders of disqualification made by the

speakers from the very inception of the Tenth Schedule, and

the exercise of judicial review has not been confined merely

to the orders of disqualification made after 12th November,

1991 when the judgment in Kihoto Hollohan was rendered.

Venkatachaliah, J (as he then was) wrote the majority

opinion and, thereafter, on this premise, exercised the

power of judicial review over orders of disqualification

made prior to 12.11.1991. The basic fallacy in the

submission made on behalf of the respondents that para 7

must be treated as existing till 12th November, 1991 is that

on that view there would be no power of judicial review

against an order of disqualification made by the Speaker

prior to 12th November, 1991 since para 7 in express terms

totally excludes judicial review.

Accepting the submission of learned counsel for the

respondents that para 7 must be read in the Tenth Schedule

till 12th November, 1991 when

844

the judgment in Kihoto Hollohan was rendered, for which

submission they place reliance on the majority opinion in

Kihoto Hollohan, would amount to taking a view contrary to

the decision in Kihoto Hollohan itself, as indicated.

At one stage, Shri Nariman also attempted to read the

majority opinion in Kihoto Hollohan as not expressly

declaring para 7 in the Tenth Schedule as unconstitutional,

adding that such a declaration was made only in the minority

opinion which declared the entire Tenth Schedule to be

unconstitutional. We are unable to read the majority

opinion in this manner. Any attempt to find support for the

submissions of the respondents, in the majority opinion in

Kihoto Hollohan, is futile.

The Constitution Bench decision in Shivdeo Singh and Ors. v.

State of Punjab and Ors. (supra) is distinguishable and of

no assistance to the respondents in the present case. That

was a case, wherein the High Court had exercised its power

in a second writ petition filed under Article 226 of the

Constitution by a person who was not made a party in the

earlier writ petition, the order made in which was adverse

to him. This court held that the second writ petition by

such a person was maintainable, and the High Court had not

acted without jurisdiction in reviewing its previous order

at the instance of a person who was not a party to the

previous writ proceedings. That decision has no application

in this situation.

Strong reliance was placed by Shri Nariman as well as Shri

Ashok Desai on the decision of a two Judge bench in

Grindlays Batik Ltd. It was submitted by learned counsel,

that in the present case the defects in the orders of

disqualification fell in the first of the two categories

mentioned at page 347 (SCR), to which extent there is

inherent power of review in the Speaker. It may be

mentioned that the decision in Patel Narshi Thakershi & Ors.

v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 is

referred and distinguished at page 347 SCR on the facts of

that case. In that decision the question was, whether the

Industrial Tribunal constituted under Section 7A of the

Industrial Disputes Act, 1947 had the power to set aside an

exparte award made by it. It was held with the aid of Rule

24(b), Industrial Disputes (Central) Rules, 1957 that the

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Tribunal had the power of a civil court under Order XVII of

the Code of Civil Procedure relating to grant of

adjournments and therefore, as a necessary corollary the

power under Order IX, Rule 13 was attracted to enable the

Tribunal to set aside an ex

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parte award. In our opinion, the decision in Grindlays Bank

Ltd., wherein certain statutory rules attracted the power

under Order XVII read with Order IX, Rule 13 of the Code of

Civil Procedure in the Tribunal to set aside an ex parte

award, is clearly distinguishable and is of no assistance in

the present case.

The power of review which, it is suggested by counsel for

the respondents, inheres in the Speaker by necessary

implication has to be found in the provisions made in the

Tenth Schedule alone, and not elsewhere. Para 7 has to be

treated as non-existent in the Tenth Schedule from the very

inception, as earlier indicated. As held by the majority in

kihoto Hollohan, judicial review is available against an

order of disqualification made by the Speaker under para 6

of the Tenth Schedule, notwithstanding the finality

mentioned therein. It is on account of the nature of

finality attaching by virtue of para 6, that the judicial

review available against the Speaker's' order has been

labeled as limited in para 110 (at page 711 of SCC) of the

decision in Kihoto Hollohan? [1992] Supp 2 SCC 651, and the

expression has to be understood in that sense distinguished

from the wide power in an appeal, and no more. As held in

Kihoto Hollohan, the Speaker's order is final being subject

only to judicial review, according to the settled parameters

of the exercise of power of judicial review in such cases,

which it is not necessary to elaborate in the present

context. The existence of judicial review against the

Speaker's order of disqualification made under para 6 is

itself a strong indication to the contrary that there can be

no inherent power of review in the Speaker, read in the

Tenth Schedule by necessary implication. The need for

correction of errors in the Speaker's order made under the

Tenth Schedule is met by the availability of judicial review

against the same, as held in Kihoto Hollohan.

In our opinion there is no merit in the submission that the

power of review inheres in the Speaker under the Tenth

Schedule as a necessary incident of his jurisdiction to

decide the question of disqualification; or that such a

power existed till 12th November, 1991 when the decision in

Kihoto Hollohan was rendered; or at least a limited power of

review inheres in the Speaker to correct any palpable error

outside the scope of judicial review.

CONSEQUENCE

On the above view taken by us, the orders dated 7th and 8th

March, 1991 made by the Acting Speaker in purported exercise

of the power of

846

review are liable to be declared nullity and to be ignored,

with the result that the order dated 13th December, 1990

disqualifying Chopedekar and Bandekar and dated 15th

February, 1991 disqualifying Ravi S.Naik as Members of Goa

Legislative Assembly would continue to operate.

Writ petition No.321 of 1990 filed by Chopdekar and Bandekar

challenging the orders of their disqualification is pending

in the High Court wherein an interim order staying the

operation of their orders of disqualification is subsisting.

Chopdekar and Bandekar can pursue that remedy to challenge

their disqualification and no further order is required to

be made by this Court for that purpose.

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However, writ petition No.48 of 1991 which was filed in the

High Court by Ravi S. Naik challenging his disqualification,

wherein also an interim order was made staying the operation

of the order of his disqualification, was not pressed by

Ravi S.Naik after the order in purported exercise of power

of review was made in his favour on 8th March, 1 991 and,

therefore, that writ petition was dismissed as not pressed

on 22.4.1991. The question is of the order, if any, required

to be made by this Court in this situation.

Shri Ram Jethmalani appearing for the appellants in C.A.

No.1094/92 suggested that, in all fairness writ petition

No.48 of 1991 should be revived in the High Court to enable

Ravi S.Naik to pursue his remedy of seeking judicial review

against his disqualification. On the other hand, Shri R.K.

Garg, learned counsel for the appellant in Civil Appeal

No.1096/92 opposed the making of such an order. Both the

learned counsel, however. submitted that the interim order

of stay made therein would not revive even if that writ

petition is revived and the High Court will have to consider

Afresh the question of making an interim order, at the

behest of Ravi S. Naik. On the other hand, Shri F.S.

Nariman appearing for Ravi S. Naik in both these appeals

submitted that it would be just in the circumstances of the

case, to revive writ petition No.48 of 1991 for decision on

merits by the High Court and the interim order of stay

should also enure to the benefit of Ravi S. Naik during the

pendency of the writ petition, more so when he is the Chief

Minister of the State and refusal of stay would result in

uncertainty in the State.

Having given our anxious consideration to the matter we have

no doubt that the fact to Ravi S. Naik being the Chief

Minister of the State

847

of Goa is a wholly irrelevant circumstance for this purpose.

All the same an order which would be just and proper to make

in the circumstances of this case has to be made, taking

into account also the fact that the law was declared and

came to be settled only by the decision of this Court in

Kihoto Hollohan, after making of the orders of review by the

Acting Speaker in the present case, where after writ

petition No.48 of 1991 was dismissed as not pressed. We

have no doubt that Article 142 of the Constitution enables

us, if necessary, to enlarge the powers of this Court for

making an order which would be just in the facts and

circumstances of this case.

In our opinion, it would be appropriate to revive writ

petition No.48 of 1991 for hearing on merit by the High

Court as suggested even by Shri Ram Jethmalani, and to also

order interim stay of the operation of the order of

disqualification dated 15.2.1991 made by the Speaker, which

was the situation prevailing till that writ petition was

dismissed as not pressed. It is, however, necessary that

writ petition No.48 of 1991 and also writ petition No.321 of

1990 should be heard and disposed of at the earliest, on

account of their expediency.

RELIEF

Accordingly, we allow these appeals in the following manner

(1) The impugned orders of the High Court, dated 4.2.1992

dismissing writ petition No.11 of 1992; dated 24.2.1992

dismissing writ petition No.70 of 1992; and dated 4.2.1992

dismissing writ petition No.8 of 1992 are set aside;

(2) Writ petition Nos.11 of 1992, 70 of 1992 and 8 of 1992

are allowed declaring that orders dated 7.3.1992 and

8.3.1992 made by the Acting Speaker in purported exercise of

power of review are nullity and liable to be ignored.

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(3) Consequently, orders dated 13.12.1990 made by the

Speaker disqualifying Ratnakar Chopdekar and Sanjay Bandekar

continue to operate and writ petition No.321 of 1990 pending

in the High Court has to be heard and decided on merits, in

accordance with law;

(4) Similarly, order dated 15.2.1991 made by the Speaker

disqualifying Ravi S. Naik continues to operate and writ

petition No.48 of 1991 filed in the High Court by him is

revived by setting aside the High Court's order

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dated 24.2.1991 dismissing that writ petition as not

pressed. The High Court will proceed to decide that writ

petition also on merits, in accordance with law-,

(5) The interim order staying the order of disqualification

in writ petition No.48 of 1991 is revived. However, the

parties would be at liberty to apply to the High Court for

modification or cancellation of the said interim order or

for any other interim relief or direction, if so advised;

(6) The High Court should hear and dispose of the writ

petition No.48 of 1991 itself on merits as expeditiously as

possible, preferably by 30th April, 1993;

(7) Writ Petition No321 of 1990 filed by Ratnakar M.

Chopdekar and Sanjay Bandekar pending in the High Court be

also heard and disposed of as expeditiously as possible,

preferably by 30th April, 1993.

(8) Parties are directed to appear at the Goa Bench of the

Bombay High Court on 6th April, 1993, without any further

notice, for obtaining further directions in this behalf.

(9) In the circumstances of the case, the parties will bear

their own costs.

T.N.A.

Appeals allowed.

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