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CASE NO.:

Writ Petition (civil) 322 of 2004

PETITIONER:

Dr. Mahachandra Prasad Singh

RESPONDENT:

Chairman, Bihar Legislative Council & Ors.

DATE OF JUDGMENT: 27/10/2004

BENCH:

CJI R.C. Lahoti, G. P. Mathur & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

(with W.P. (Civil) No. 370 of 2004)

G. P. MATHUR, J.

1. This petition, under Article 32 of the Constitution, has been filed for

quashing the order dated 26th June, 2004 of Chairman of Bihar Legislative

Council holding that the petitioner is disqualified for being a member of the

House under paragraph 2(1)(a) of the Tenth Schedule read with Article

191(2) of the Constitution and consequently the seat held by him in the

Bihar Legislative Council had fallen vacant from the said date.

2. The petitioner was elected as a member of the Bihar Legislative

Council (MLC) from Tirhut Graduate Constituency as a candidate of Indian

National Congress. The notification for holding elections to Fourteenth

Lok Sabha was issued in March, 2001. The petitioner contested the said

election from Maharajganj Parliamentary Constituency as an independent

candidate. Shri Salman Rageev, a member of Bihar Legislative Council,

sent a petition to the Chairman of the Legislative Council on 10th June, 2004

stating, inter alia, that the petitioner, who was a member of the Congress

Party, had contested the parliamentary election from Maharajganj

Constituency as an independent candidate and consequently in view of the

provisions of the Tenth Schedule to the Constitution he had become

disqualified for being a member of the House. The petitioner was asked to

submit his explanation vide letter dated 12th June, 2004 of the Secretary of

the Council. After considering the explanation offered by the petitioner,

the Chairman of the Legislative Council passed the impugned order dated

26th June, 2004 holding that the petitioner had contested the election for

Bihar Legislative Council in the year 1998 as a candidate of the Congress

Party and was a member of the said political party and that he had contested

the Lok Sabha Election, 2004, as an independent candidate, and thus he had

voluntarily given up his membership of the Congress party and, therefore,

he was disqualified for being a member of the House in view of paragraph

2(1)(a) of the Tenth Schedule read with Article 191 (2) of the Constitution

and the seat held by him in the House has become vacant.

3. Shri P.S. Mishra, learned senior counsel, has raised three contentions

in assailing the order dated 26th June, 2004 passed by the Chairman, Bihar

Legislative Council. The first submission is that in absence of compliance

of Rules 6 and 7 of the Bihar Legislative Council Members

(Disqualification on ground of Defection) Rules, 1994, the assumption of

jurisdiction by the Chairman in initiating the proceedings, whereunder the

petitioner was held to be disqualified for being a member of the House, was

illegal. The second submission is that there was violation of principles of

natural justice as the material relied upon by the Chairman was not

disclosed to the petitioner nor a proper opportunity of personal hearing was

afforded to him. The third and the last submission is that the petitioner had

not voluntarily given up membership of a political party by contesting the

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Lok Sabha Election as an independent candidate and, therefore, he had not

incurred any disqualification within the meaning of paragraph 2(1)(a) of the

Tenth Schedule.

4. Before examining the contentions raised by the learned counsel for

the petitioner, it is necessary to look to the historical background in which

the Tenth Schedule was added to the Constitution. On 8th December, 1967

the Lok Sabha passed a unanimous resolution constituting a Committee to

consider in all its aspects the problem of legislators changing their

allegiance from one party to another and their frequent crossing of the Floor

and make recommendations in this regard. This Committee known as

"Committee on Defections" in its report dated 7th January, 1969 highlighted

the alarming rise in change of party allegiance by legislators. Compared to

roughly 545 cases in the entire period between the First and Fourth General

Elections, at least 438 defections occurred in a short period between March

1967 and February, 1968. Among independents, 157 out of a total of 376

elected joined various parties in this period. Out of 210 defecting

legislators of the States of Bihar, Haryana, M.P., Punjab, Rajasthan, U.P.

and West Bengal, 116 were included in the Council of Ministers which they

helped to bring into being by defections. The Committee noted multiple

acts of defections by the same person or set of persons and the belief held by

the people and expressed in the press that corruption and bribery were

behind some of these defections. (See Kihoto Hollohan v. Zachillhu & Ors.

1992 (Supp) 2 SCC 651 paras 5 and 6).

5. Keeping in view the recommendations of the Committee on

Defections several Bills were introduced for amending the Constitution, but

they lapsed. Finally, a Bill which was enacted into Constitution (Fifty-

second Amendment) Act, 1985 was passed by which Tenth Schedule was

added with effect from 1.3.1985. The Statement of Objects and Reasons

appended to the Bill read as under :

1. The evil of political defections has been a matter of

national concern. If it is not combated, it is likely to

undermine the very foundations of our democracy and the

principles which sustain it. With this object, an assurance was

given in the Address by the President to Parliament that the

Government intended to introduce in the current session of

Parliament an anti-defection Bill. This Bill is meant for

outlawing defection and fulfilling the above assurance.

2. The Bill seeks to amend the Constitution to provide that

an elected member of Parliament or a State Legislature, who

has been elected as a candidate set up by a political party and a

nominated member of Parliament or a State Legislature who is

a member of a political party at the time he takes his seat or

who becomes a member of a political party within six months

after he takes his seat would be disqualified on the ground of

defection if he voluntarily relinquishes his membership of such

political party or votes or abstains from voting in such House

contrary to any direction of such party or is expelled from such

party. An independent member of Parliament or a State

Legislature shall also be disqualified if he joins any political

party after his election. A nominated member of Parliament or

a State Legislature who is not a member of a political party at

the time of his nomination and who has not become a member

of any political party before the expiry of six months from the

date on which he takes his seat shall be disqualified if he joins

any political party after the expiry of the said period of six

months. The Bill also makes suitable provisions with respect

to splits in, and mergers of, political parties. A special

provision has been included in the Bill to enable a person who

has been elected as the presiding officer of a House to sever

his connections with his political party. The question as to

whether a member of a House of Parliament or State

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Legislature has become subject to the proposed

disqualification will be determined by the presiding officer of

the House; where the question is with reference to the

presiding officer himself, it will be decided by a member of the

House elected by the House in that behalf.

3. The Bill seeks to achieve the above objects.

The provisions of the Tenth Schedule to the Constitution which are

relevant for the decision of the present case are being reproduced below :

1. Interpretation \026 In this Schedule, unless the context

otherwise requires, -

(a) 'House' means either House of Parliament or the

Legislative Assembly or, as the case may be, either

House of the Legislature of a State;

(b) 'legislative party', in relation to a member of a House

belonging to any political party in accordance with the

provisions of paragraph 2, paragraph 4, means the group

consisting of all the members of that House for the time

being belonging to that political party in accordance

with the said provisions;

(c) 'original political party', in relation to a member of a

House, means the political party to which he belongs for

the purposes of sub-paragraph (1) of paragraph 2;

(d) 'paragraph' means a paragraph of this Schedule.

2. Disqualification on ground of defection \026 (1) Subject

to the provisions of paragraphs 4 and 5, a member of a House

belonging to any political party shall be disqualified for being

a member of the House -

(a) if he has voluntarily given up his membership of such

political party; or

(b) if he votes or abstains from voting in such House contrary

to any direction issued by the political party to which he

belongs or by any person or authority authorized by it in

this behalf, without obtaining, in either case, the prior

permission of such political party, person or authority and

such voting or abstention has not been condoned by such

political party, person or authority within fifteen days

from the date of such voting or abstention.

Explanation \026 For the purposes of this sub-paragraph, -

(a) an elected member of a House shall be deemed to belong

to the political party, if any, by which he was set up as a

candidate for election as such member;

(b) \005\005\005\005\005\005\005\005\005\005 (Omitted as not relevant)

(2) An elected member of a House who has been elected as

such otherwise than as a candidate set up by any political party

shall be disqualified for being a member of the House if he

joins any political party after such election.

(3) \005\005\005\005\005\005\005\005\005. (Omitted as not relevant)

(4) \005\005\005\005\005\005\005\005\005. (Omitted as not relevant)

6. Decision on questions as to disqualification on ground

of defection \026 (1) If any question arises as to whether a

member of a House has become subject to disqualification

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under this Schedule, the question shall be referred for the

decision of the Chairman or, as the case may be, the Speaker

of such House and his decision shall be final;

Provided that where the question which has arisen is as

to whether the Chairman or the Speaker of a House has

become subject to such disqualification, the question shall be

referred for the decision of such member of the House as the

House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-paragraph (1) of this

paragraph in relation to any question as to disqualification of a

member of a House under this Schedule shall be deemed to be

proceedings in Parliament within the meaning of article 122 or,

as the case may be, proceedings in the Legislature of a State

within the meaning of article 212.

7. Bar of jurisdiction of courts. \026 Notwithstanding

anything in this Constitution, no court shall have any

jurisdiction in respect of any matter connected with the

disqualification of a member of a House under this Schedule.

6. The underlying object and the purpose which the Tenth Schedule

seeks to achieve were explained as under in Kihoto Hollohan (supra) and it

will be useful to keep them in mind while interpreting its provisions :

"Para 13 : These provisions in the Tenth Schedule give

recognition to the role of political parties in the political

process. A political party goes before the electorate with a

particular programme and it sets up candidates at the election

on the basis of such programme. A person who gets elected as

a candidate set up by a political party is so elected on the basis

of the programme of that political party. The provisions of

Paragraph 2(1)(a) proceed on the premise that political

propriety and morality demand that if such a person, after the

election, changes his affiliation and leaves the political party

which had set him up as a candidate at the election, then he

should give up his membership of the legislature and go back

before the electorate. The same yardstick is applied to a person

who is elected as an Independent candidate and wishes to join a

political party after the election."

7. Paragraph 2 of the Tenth Schedule lays down the contingencies under

which a member of the House belonging to any political party shall be

disqualified for being a member of the House and they are enumerated in

sub-paras (1), (2) and (3). Sub-para (2) deals with a situation where a

member of the House elected as an independent candidate joins any political

party after such election and sub-para (3) deals with a situation where a

nominated member of the House joins any political party after the expiry of

six months from the date on which he takes a seat. Sub-para (1) deals with

a situation where a member of a House belonging to any political party

voluntarily gives up his membership of such political party. It also deals

with a situation where he votes or abstains from voting in the House,

contrary to any direction issued by the political party to which he belongs,

without obtaining prior permission of such political party and such voting or

abstention has not been condoned by such political party within fifteen days

from the said voting or abstention. The scrutiny of the provisions of sub-

para (2) would show that a member of a House belonging to any political

party becomes disqualified for being a member of the House if he does

some positive act which may be either voluntarily giving up his membership

of the political party to which he belongs or voting or abstention from

voting contrary to any direction issued by the political party to which he

belongs and in the case of an independent or nominated member on his

joining a political party. On the plain language of paragraph 2, the

disqualification comes into force or becomes effective on the happening of

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the event. Paragraph 4 is in the nature of an exception to paragraph 2 and

provides for certain contingencies when the rule of disqualification will not

apply in the case of merger of political parties. Paragraph 6 says that where

any question arises as to whether a member of the House has become

subject to disqualification under the Schedule, the same shall be referred for

the decision of the Chairman or, as the case may be, the Speaker of the

House and his decision shall be final. Therefore, the final authority to take

a decision on the question of disqualification of a member of the House

vests with the Chairman or the Speaker of the House. It is to be noted that

the Tenth Schedule does not confer any discretion on the Chairman or

Speaker of the House. Their role is only in the domain of ascertaining the

relevant facts. Once the facts gathered or placed show that a member of the

House has done any such act which comes within the purview of sub-

paragrah (1), (2) or (3) of Paragraph 2 of the Tenth Schedule, the

disqualification will apply and the Chairman or the Speaker of the House

will have to make a decision to that effect.

8. Paragraph 6 of Tenth Schedule attaches finality to the decision of the

Chairman or the Speaker of the House on a question as to whether a

member of a House has become subject to disqualification under the

Schedule. Paragraph 7 excludes the jurisdiction of the Court in respect of

any matter connected with disqualification of a member of a House under

the Schedule. as it says that notwithstanding anything in the Constitution, no

Court shall have any jurisdiction in respect of any matter connected with the

disqualification of a member of House under this Schedule. This provision

being in the Constitution itself, unlike a statutory provision, it effects the

power of judicial review of the High Court and Supreme Court under

Articles 226, 227 and 136 of the Constitution. Further, in view of the

provision contained in sub-paragraph (2) of paragraph 6 the proceedings in

relation to disqualification of a member of the House shall be deemed to be

proceedings in Parliament within the meaning of Article 122 or in the

Legislature of a State within the meaning of Article 212, as the case may be.

These are identical provisions which provide that validity of any

proceedings in Parliament or Legislature shall not be called in question on

the ground of any alleged irregularity in procedure. The vires of Tenth

Schedule was challenged on several grounds including the ground that the

power of judicial review being part of the basic structure of the Constitution,

cannot be taken away by a constitutional amendment. The issue was

considered by a Constitution Bench in Kihoto Hollohan v. Zachillhu & Ors.

1992 (Supp) 2 SCC 651, where Venkatachaliah, J. speaking for the majority

held as under in para 111 of the reports :

"In the result, we hold on contentions (E) and (F) :

That the Tenth Schedule does not, in providing for an

additional ground, for disqualification and for adjudication of

disputed disqualifications, seek to create a non-justiciable

constitutional area. The power to resolve such disputes vested

in the Speaker or Chairman is a judicial power.

That Paragraph 6(1) of the Tenth Schedule, to the extent

it seeks to impart finality to the decision of the

Speakers/Chairman is valid. But the concept of statutory

finality embodied in Paragraph 6(1) does not detract from or

abrogate judicial review under Articles 136, 226 and 227 of the

Constitution insofar as infirmities based on violations of

constitutional mandates, mala fides, non-compliance with

Rules of Natural Justice and perversity, are concerned.

That the deeming provision in Paragraph 6(2) of the

Tenth Schedule attracts an immunity analogous to that in

Articles 112(1) and 212(1) of the Constitution as understood

and explained in Keshav Singh case (AIR 1965 SC 745) to

protect the validity of proceedings from mere irregularities of

procedure. The deeming provision, having regard to the words

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'be deemed to be proceedings in Parliament' or 'proceedings in

the legislature of a State' confines the scope of the fiction

accordingly."

This authoritative pronouncement clearly lays down that the decision

of the Chairman or the Speaker of the House can be challenged on very

limited grounds, namely, violation of constitutional mandate, mala fides,

non-compliance with rules of natural justice and perversity and further a

mere irregularity in procedure can have no bearing on the decision.

9. The question as to when a member of a House belonging to a political

party can be said to have given up his membership of such political party

has been considered in two later decisions of this Court. In Ravi S. Naik v.

Union of India 1994 (Supp.) 2 SCC 641 two M.L.A.s, Bandekar and

Chopdekar, had been elected on the ticket of MGP party, but they

accompanied the leader of Congress (I) Legislative Party when he met the

Governor to show that he had the support of 20 MLAs. On this conduct

alone, the Speaker held that they had given up membership of the MGP

party and disqualified them for being a member of the House. The decision

of the Speaker under which he held that the two MLAs shall be disqualified

for being a member of the House under paragraph 2(1)(a) of the Schedule

was upheld by this Court. The scope and amplitude of paragraph 2(1)(a)

was explained as under in para 11 of the reports :

"11. \005\005\005\005The said paragraph provides for

disqualification of a member of a House belonging to a

political party "if he has voluntarily given up his membership

of such political party". The words "voluntarily given up his

membership" are not synonymous with "resignation" and have

a wider connotation. A person may voluntarily give up his

membership of a political party even though he has not

tendered his resignation from the membership of that party.

Even in the absence of a formal resignation from membership

an inference can be drawn from the conduct of a member that

he has voluntarily given up his membership of the political

party to which he belongs".

10. In G. Viswanathan & Ors. v. Hon'ble Speaker Tamil Nadu

Legislative Assembly & Ors. 1996 (2) SCC 353 the appellants had been

elected as members of the Legislative Assembly in 1991 as candidates of

AIDMK party but they were expelled from the said party on 8th January,

1994. The Speaker declared them as unattached members of the Assembly

on 16th March, 1994. Sometime thereafter, an MLA informed the Speaker

that the appellants had joined MDMK party and, therefore, they should be

disqualified from membership of the Assembly. After calling for their

explanation the Speaker held that they had incurred the disqualification

under paragraph 2(1)(a) of the Tenth Schedule and had ceased to be

members of the Assembly. The main contention raised on behalf of the

appellants was that paragraph 2(1)(a) of the Tenth Schedule comes into play

only to disqualify a member who voluntarily gives up his membership of

that political party that had set him up as a candidate, and not when he is

expelled from the party and declared "unattached" i.e. not belonging to any

political party. It was further contended that para 2(a) will apply only when

a member himself of his own volition gives up his membership of the party.

Any member thrown out will cease to be a member of the party that had set

him up as a candidate and if he joins another party thereafter, it will not be a

case of "voluntary giving up his membership of the political party" that had

set him up as a candidate for the election. It was held that if the contention

urged on behalf of the appellants is accepted, it will defeat the very purpose

for which the Tenth Schedule came to be introduced and would fail to

suppress the mischief, namely, breach of faith of the electorate. The

principle on which such a view was taken was explained as under in para 11

of the reports :

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"11. It appears that since the explanation to para 2(1) of the

Tenth Schedule provides that an elected member of a House

shall be deemed to belong to the political party, if any, by

which he was set up as a candidate for election as such

member, such person so set up as a candidate and elected as a

member, shall continue to belong to that party. Even if such a

member is thrown out or expelled from the party, for the

purposes of the Tenth Schedule he will not cease to be a

member of the political party that had set him up as a

candidate for the election. He will continue to belong to that

political party even if he is treated as 'unattached'. The further

question is when does a person "voluntarily give up" his

membership of such political party, as provided in para

2(1)(a)? The act of voluntarily giving up the membership of

the political party may be either express or implied. When a

person who has been thrown out or expelled from the party

which set him up as a candidate and got elected, joins another

(new) party, it will certainly amount to his voluntarily giving

up the membership of the political party which had set him up

as a candidate for election as such member."

11. In the present case, the Chairman of the Legislative Council has held

that the petitioner had been elected to the Legislative Council on the ticket

of the Indian National Congress but he contested the parliamentary election

as an independent candidate. On these facts a conclusion has been drawn

that he has given up his membership of Indian National Congress. This

being a matter of record, the petitioner could not possibly dispute them, and

that is why he has admitted these facts in the writ petition as well. In such a

situation there can be no escape from the conclusion that the petitioner has

incurred the disqualification under paragraph 2(1)(a) of the Schedule and

the decision of the Chairman is perfectly correct.

12. Paragraph 8 gives the rule making powers and it provides that the

Chairman or the Speaker of a House may make rules for giving effect to the

provisions of the Tenth Schedule. Clause (d) of sub-para (1) of this rule

provides that the Rule may provide the procedure for deciding any question

referred to in sub-para (1) of paragraph 6 including the procedure for any

inquiry which may be made for the purpose of deciding such question. In

exercise of the power conferred by paragraph 8 of the Tenth Schedule, the

Chairman, Bihar Legislative Council has made the Bihar Legislative

Council Members (Disqualification on ground of Defection) Rules, 1994

(hereinafter referred to as "the Rules"). Rule 3 of the Rules provides that

the leader of each legislature party shall furnish to the Chairman a statement

in writing containing the names of members of such political party. Sub-

rules (1) and (6) of Rule 6 and Sub-rules (1) and (2) of Rule 7 read as under:

6. REFERENCES TO BE BY PETITIONS.

(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) \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005........

........

\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005

\005\005.

(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.

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7. PROCEDURE

(1) On receipt of a petition under rule 6, the Chairman shall

consider whether the petition complies with the

requirements of that rule.

(2) If the petition does not comply with the requirements of

rule 6, the Chairman shall dismiss the petition and

intimate the petitioner accordingly.

13. It may be noted that under Paragraph 8, the Chairman or the Speaker

of a House is empowered to make rules for giving effect to the provisions of

the Tenth Schedule. The rules being delegated legislation are subject to

certain fundamental factors. Underlying the concept of delegated legislation

is the basic principle that the legislature delegates because it cannot directly

exert its will in every detail. All it can in practice do is to lay down the

outline. This means that the intention of the legislature, as indicated in the

outline (that is the enabling Act), must be the prime guide to the meaning of

delegated legislation and the extent of the power to make it. The true

extent of the power governs the legal meaning of the delegated legislation.

The delegate is not intended to travel wider than the object of the

legislature. The delegate's function is to serve and promote that object,

while at all times remaining true to it. That is the rule of primary intention.

Power delegated by an enactment does not enable the authority by

regulations to extend the scope or general operation of the enactment but is

strictly ancillary. It will authorise the provision of subsidiary means of

carrying into effect what is enacted in the statute itself and will cover what

is incidental to the execution of its specific provision. But such a power will

not support attempts to widen the purposes of the Act, to add new and

different means of carrying them out or to depart from or vary its ends.(see

Section 59 in chapter Delegated Legislation in Francis Bennion's Statutory

Interpretation 3rd Edn.). The aforesaid principle will apply with greater rigour

where rules have been framed in exercise of power conferred by a

constitutional provision. No rules can be framed which have the effect of

either enlarging or restricting the content and amplitude of the relevant

constitutional provisions. Similarly, the rules should be interpreted

consistent with the aforesaid principle.

14. Shri Mishra has submitted that as provided in sub-rule (6) of Rule 6

of the Rules, the petition filed by Shri Salman Rageev had to be signed and

verified in the manner laid down in the Code of Civil Procedure (for short

'CPC') for verification of pleadings and, therefore, in terms of sub-rule (4)

of Order VI Rule 15 CPC an affidavit in support of the petition had to the

filed. Since the requisite affidavit had not been filed, the requirement of the

Rule had not been complied with, and the petition was liable to be

dismissed in view of sub-rule (2) of Rule 7 of the Rules. The Chairman of

the House had, therefore, no authority or jurisdiction to initiate any

proceedings or to hold that the petitioner had become disqualified for being

a member of the House. The question which requires consideration is

whether the provisions of Rules 6 and 7 are so mandatory in nature that

even a slight infraction of the Rules would render the entire proceedings

initiated by the Chairman invalid, or without jurisdiction.

15. It may be noticed that the nature and degree of inquiry required to be

conducted for various contingencies contemplated by paragraph 2 of Tenth

Schedule may be different. So far as clause (a) of paragraph 2 (1) is

concerned, the inquiry would be a limited one, namely as to whether a

member of the House belonging to any political party has voluntarily given

up his membership of such political party. The inquiry required for the

purpose of clause (b) of paragraph 2(1) may, at times, be more elaborate.

For attracting clause (b) it is necessary that the member of the House (i)

either votes or abstains from voting (ii) contrary to any direction issued by

the political party to which he belongs or by any person or authority

authorized by it in this behalf; (iii) without obtaining the prior permission of

such political party, person or authority; and (iv) such voting or abstention

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has not been condoned by such political party, person or authority within

fifteen days from the date of such voting or abstention. Therefore, for the

purpose of clause (b), inquiry into several factual aspects has to be

conducted. It may be noticed that clause (b) does not say that the prior

permission has to be in writing and, therefore, it can be oral as well.

Similarly, the manner in which condonation has to be expressed has not

been indicated. Therefore, for holding that a member of a House has

incurred a disqualification under Clause (b) of paragraph 2(1) findings on

several aspects will necessarily have to be recorded. Similarly, for

application of paragraph 4, inquiry has to be made whether the original

political party merged with another political party, whether the member of

the House has become member of such other political party or, as the case

may be, of a new political party formed by such merger or whether he has

not accepted the merger and opted to function as a separate group.

16. Sub-rule (1) of Rule 6 says that 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 the said Rule and sub-rule (6) of

the same Rule provides that every petition shall be signed by the petitioner

and verified in the manner laid down in the Code of Civil Procedure for the

verification of pleadings. The heading of Rule 7 is 'PROCEDURE". Sub-

rule (1) of this Rule says that on receipt of petition under Rule 6, the

Chairman shall consider whether the petition complies with the requirement

of the said Rule and sub-rule (2) says that if the petition does not comply

with the requirement of Rule 6, the Chairman shall dismiss the petition.

These rules have been framed by the Chairman in exercise of power

conferred by paragraph 8 of Tenth Schedule. The purpose and object of the

Rules is to facilitate the job of the Chairman in discharging his duties and

responsibilities conferred upon him by paragraph 6, namely, for resolving

any dispute as to whether a member of the House has become subject to

disqualification under the Tenth Schedule. The Rule being in the domain

of procedure, are intended to facilitate the holding of inquiry and not to

frustrate or obstruct the same by introduction of innumerable technicalities.

Being subordinate legislation, the Rules cannot make any provision which

may have the effect of curtailing the content and scope of the substantive

provision, namely, the Tenth Schedule. There is no provision in the Tenth

Schedule to the effect that until a petition which is signed and verified in the

manner laid down in the CPC for verification of pleadings is made to the

Chairman or the Speaker of the House, he will not get the jurisdiction to

give a decision as to whether a member of the House has become subject to

disqualification under the Schedule. Paragraph 6 of the Schedule does not

contemplate moving of a formal petition by any person for assumption of

jurisdiction by the Chairman or the Speaker of the House. The purpose of

Rules 6 and 7 is only this much that the necessary facts on account of which

a member of the House becomes disqualified for being a member of the

House under paragraph 2, may be brought to the notice of the Chairman.

There is no lis between the person moving the petition and the member of

the House who is alleged to have incurred a disqualification. It is not an

adversarial kind of litigation where he may be required to lead evidence.

Even if he withdraws the petition it will make no difference as the duty is

cast upon the Chairman or the Speaker to carry out the mandate of the

constitutional provision, viz. the Tenth Schedule. The object of Rule 6

which requires that every petition shall be signed by the petitioner and

verified in the manner laid down in the CPC for the verification of

pleadings, is that frivolous petitions making false allegations may not be

filed in order to cause harassment. It is not possible to give strict

interpretation to Rules 6 and 7 otherwise the very object of the Constitution

(Fifty-second Amendment) Act by which Tenth Schedule was added would

be defeated. A defaulting legislator, who has otherwise incurred the

disqualification under paragraph 2, would be able to get away by taking the

advantage of even a slight or insignificant error in the petition and thereby

asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7.

The validity of the Rules can be sustained only if they are held to be

directory in nature as otherwise, on strict interpretation, they would be

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rendered ultra vires.

17. The petition filed by Shri Salman Rageev was signed and verified in

the following manner :

"All the facts stated in this petition are true and correct to my

knowledge and belief and no part of it is false.

Sd/- (Salman Rageev)

M.L.C.

10.06.2004"

18. There cannot be any dispute that sub-rules (1), (2) and (3) of Order

VI Rule 15 CPC were complied with. Learned counsel for the petitioner

has, however, laid great emphasis on the fact that Shri Salman Rageev had

not filed any affidavit in support of his petition and consequently the

provisions of sub-rule (4) of Order VI Rule 15 CPC which provides that the

person verifying the pleadings shall also furnish an affidavit in support of

his pleadings were not complied with. For the reasons stated earlier, we

are of the opinion that the provisions of Rules 6 and 7 are directory in nature

and on account of non-filing of an affidavit as required by sub-rule (4) of

Order VI Rule 15 CPC, the petition would not be rendered invalid nor the

assumption of jurisdiction by the Chairman on its basis would be adversely

effected or rendered bad in any manner. A similar contention was raised

before a Bench presided by Venkatachaliah, C.J. in Ravi S. Naik v. Union

of India 1994 (Supp.) 2 SCC 641, but was repelled. The relevant portion of

para 18 of the reports is being reproduced below :

"18. \005\005\005\005The Disqualification Rules have been framed

to regulate the procedure that is to be followed by the Speaker

for exercising the power conferred on him under sub-

paragraph (1) of paragraph 6 of the Tenth Schedule to the

Constitution. The Disqualification Rules are, therefore,

procedural in nature and any violation of the same would

amount to an irregularity in procedure which is immune from

judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as

construed by this Court in Kihoto Hollohan case 1992 (Supp) 2

SCC 651. Moreover, the field of judicial review in respect of

the orders passed by the Speaker under sub-paragraph (1) of

paragraph 6 as construed by this Court in Kihoto Hollohan

case is confined to breaches of the constitutional mandates,

mala fides, non-compliance with Rules of Natural Justice and

perversity. We are unable to uphold the contention of Shri Sen

that the violation of the Disqualification Rules amounts to

violation of constitutional mandates. By doing so we would be

elevating the rules to the status of the provisions of the

Constitution which is impermissible. Since the

Disqualification Rules have been framed by the Speaker in

exercise of the power conferred under paragraph 8 of the Tenth

Schedule they have a status subordinate to the Constitution and

cannot be equated with the provisions of the Constitution.

They cannot, therefore, be regarded as constitutional mandates

and any violation of the Disqualification Rules does not afford

a ground for judicial review of the order of the Speaker in view

of the finality clause contained in sub-paragraph (1) of

paragraph 6 of the Tenth Schedule as construed by this Court

in Kihoto Hollohan case."

19. Shri Mishra has next submitted that the Chairman of the Bihar

Legislative Council did not afford an opportunity of personal hearing to the

petitioner and he also relied upon certain material, copy of which was not

furnished to the petitioner and consequently the rules of natural justice have

been violated. We do not find any substance in the contention raised.

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Initially, the Secretary of the Bihar Legislative Council sent a letter dated

19th May, 2004 to the petitioner stating that the petitioner had contested the

election for Bihar Legislative Council as a candidate of Indian National

Congress and that information had been received that he had contested the

Parliamentary Election, 2004 as an independent candidate. Attention of the

petitioner was invited to Article 191 (2) and Tenth Schedule to the

Constitution of India and he was asked to submit his clarification within

seven days. The petitioner gave a reply to this letter on 25th May, 2004

wherein he requested to supply him a photocopy of the information received

by the Secretariat of Bihar Legislative Council and prayed for 15 days' time

to explain his position after obtaining advice from legal experts.

Thereafter, Shri Salman Rageev gave a petition to the Chairman on 10th

June, 2004, details of which have already been given earlier. In pursuance

of this petition, the Secretary of the Bihar Legislative Council sent a letter

dated 12th June, 2004 to the petitioner stating the relevant facts and asking

him to submit his written reply to the Chairman of the Council within one

week. The copy of the petition submitted by Shri Salman Rageev was

enclosed. The petitioner gave a reply to this petition on 18th June, 2004,

wherein he only raised objection about the maintainability of the petition

alleging non-compliance of sub-rule (6) of Rule 6 of the Rules and prayed

for its dismissal under sub-rule (2) of Rule 7 of the Rules. He also prayed

for opportunity of personal hearing on the aforesaid points. He sent another

letter to the Secretary of the Legislative Council on 19th June, 2004, wherein

he reiterated the same grounds. A communication was then sent by the

Secretary on 19th June, 2004 informing the petitioner that he should appear

in the office of the Chairman at 1.30 p.m. on 22nd June, 2004 for a personal

hearing. The petitioner then addressed a letter to the Secretary on 22nd

June, 2004, wherein he again pressed for rejection of the petition under sub-

rule (2) of Rule 7 of the Rules and also sought 15 days' time in order to

obtain advice from legal experts. A reply was then sent by the Secretary on

22nd June, 2004 informing him that the Chairman had fixed 1.30 p.m. on

25th June, 2004 for personal hearing and he should appear in his office at the

said time. On 25th June, 2004, the petitioner sent a letter to the Secretary

that he had fallen sick and prayed for 10 days' further time. The facts

stated above would show that the Chairman of the Bihar Legislative Council

had afforded ample opportunity of personal hearing to the petitioner but he

himself did not avail of it. Regarding the complaint of non-supply of the

copy of the letter sent by Prof. Arun Kumar, leader of Indian National

Congress in Bihar Legislative Council, whereby he had informed that the

petitioner Shri Mahachandra Prasad Singh had ceased to be a member of

Indian National Congress for violating the party discipline is concerned, the

only relevant fact stated therein is that the petitioner had been elected as a

member of the Bihar Legislative Council on a Congress ticket but he had

contested the parliamentary election as an independent candidate. These

facts have never been disputed by the petitioner in his replies, which he

submitted before the Chairman of the Legislative Council and have also

been admitted in paragraphs 5 and 7 in the present writ petition. Therefore,

the non-supply of copy of the letter of the leader of the Congress Legislative

Party has no bearing at all as no prejudice can be said to have been caused

to the petitioner and consequently in the facts of the present case, no

principle of natural justice can be said to have been violated.

20. The third submission of Shri Mishra has hardly any substance. In

view of explanation (a) appended to sub-paragraph (1) of paragraph 2 of the

Tenth Schedule, the petitioner shall be deemed to belong to Indian National

Congress Party by which he was set up as a candidate for contesting the

election for member of Legislative Council in the year 1998. By contesting

the parliamentary election as an independent candidate, he voluntarily gave

up the membership of the Congress Party. In G. Viswanathan & Ors. v.

Hon'ble Speaker Tamil Nadu Legislative Assembly & Ors. (supra), the

Bench quoted with approval the observations made in Ravi S. Naik v. Union

of India (supra) in para 11 of the reports that even in the absence of a formal

resignation from membership, an inference can be drawn from the conduct

of a member that he has voluntarily given up his membership of the political

party to which be belongs. On the facts of the present case, it cannot be

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said that the finding arrived at by the Chairman of the Legislative Council

that the petitioner gave up the membership of the Indian National Congress

Party to which he belonged is one which could not reasonably and possibly

have been arrived at.

21. For the reasons discussed above, there is no merit in the writ petition

and the same is hereby dismissed with costs.

CIVIL WRIT PETITION NO.370 OF 2004

Shiva Nandan Prasad Singh .. Petitioner

-vs-

Hon. Chairman, Bihar Legislative Council & Ors. ... Respondents

1. The petitioner was elected as member of Bihar Legislative Council as

a candidate of Indian National Congress Party in 1998. He filed his

nomination papers for contesting the parliamentary election held in May,

2004 as a candidate of Samajwadi party. The Secretary of the Legislative

Council sent a letter dated 19th May, 2004 asking the petitioner to clarify his

position. On 12th June, 2004, another letter was sent to him asking him to

submit his explanation on the basis of a petition filed by Shri Salman

Rageev on 10th June, 2004. The letter was accompanied by the copy of the

petition. The petitioner gave a reply on 18th June, 2004 raising objection

regarding non-compliance of Rules 6 and 7(2) of the Rules. The Chairman

fixed 22nd June, 2004 for personal hearing, on which date the petitioner

appeared and made request for some more time, on which 25th June, 2004

was fixed. Thereafter, the Chairman passed the impugned order dated 26th

June, 2004 holding that the petitioner is disqualified for being a member of

the House under paragraph 2(1)(a) of the Tenth Schedule and Article 191(2)

of the Constitution and the seat held by him in the Council had become

vacant.

2. No new point has been urged by Shri P.S. Mishra in the present case.

It is admitted in paras 4 and 6 of the writ petition that the petitioner had

been elected as member of the Legislative Council in the year 1998 as a

candidate of the Indian National Congress party and that he filed his

nomination papers for contesting the parliamentary election held in May

2004 as a candidate of Samajwadi Party. This factual position was not

disputed by the petitioner in the replies given by him to the Chairman of the

House. In such circumstances, there cannot be even a slightest doubt that

the petitioner has voluntarily given up his membership of the Indian

National Congress party. No exception can, therefore, be taken to the

decision taken by the Chairman of the House that the petitioner has incurred

the disqualification for being a member of the House under paragraph

2(1)(a) of the Tenth Schedule and Article 191(2) of the Constitution and the

seat held by him had fallen vacant.

3. The writ petition lacks merit and is dismissed with costs.