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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7125 OF 2012

(Arising out of SLP(C)No.54 of 2012)

Speaker Haryana Vidhan Sabha … Appellant

Vs.

Kuldeep Bishnoi & Ors. … Respondents

WITH

CIVIL APPEAL NO.7126 OF 2012

(Arising out of SLP(C)No.55 of 2012)

Narendra Singh & Anr. … Appellants

Vs.

Kuldeep Bishnoi & Ors. … Respondents

AND

CIVIL APPEAL NO.7127 OF 2012

(Arising out of SLP(C)No.59 of 2012)

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Dharam Singh & Anr. … Appellants

Vs.

Kuldeep Bishnoi & Ors. … Respondents

AND

CIVIL APPEAL NO.7128 OF 2012

(Arising out of SLP(C)No.72 of 2012)

Zile Ram Sharma … Appellant

Vs.

Kuldeep Bishnoi & Ors. … Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The subject matter of challenge in these appeals

is the final judgment and order dated 20

th

December,

2011, passed by the Punjab & Haryana High Court in the

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different Letters Patent Appeals filed by the Appellants

herein.

3. The first Civil Appeal, arising out of SLP(C)No.54

of 2012, has been filed by the Speaker of the Haryana

Vidhan Sabha against the judgment and order passed by the

Punjab and Haryana High Court in his Letters Patent

Appeal No.366 of 2011. By the said judgment, the

Division Bench not only dismissed the appeal and did not

choose to interfere with the directions given by the

learned Single Judge to the Speaker to decide the

petitions for disqualification of five MLAs within a

period of four months, but in addition, directed that

pending such decision, the five MLAs in question would

stand disqualified from effectively functioning as

members of the Haryana Vidhan Sabha. Aggrieved by the

interim directions purportedly given under Order 41 Rule

33 of the Code of Civil Procedure (C.P.C.), the Speaker

filed SLP(C)No.54 of 2012, challenging the same.

4. The other three Special Leave Petitions (now

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appeals) were filed by the five MLAs, who were prevented

from performing their functions as Members of the

Assembly by the directions contained in the impugned

judgment and order dated 20

th

December, 2011. While

SLP(C)No.55 of 2012 was filed by Narendra Singh and

another, SLP(C)Nos.59 of 2012 and 72 of 2012 were filed

by Dharam Singh and another and Zile Ram Sharma, being

aggrieved by the impugned judgment and order for the same

reasons as contained in the Special Leave Petition filed

by Narendra Singh and another. The focal point of

challenge in all these appeals, therefore, is the orders

passed by the Division Bench of the Punjab and Haryana

High Court on 20

th

December, 2011, while disposing of the

Letters Patent Appeals preventing the five named MLAs,

who are also Appellants before us, from effectively

discharging their functions as Members of the Vidhan

Sabha.

5. The facts narrated above give rise to the

following substantial questions of law of public

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importance, namely :-

(a)Whether the High Court in exercise of its powers

under Articles 226 and 227 of the Constitution, has

the jurisdiction to issue directions of an interim

nature to a Member of the House while a

disqualification petition of such Member is pending

before the Speaker of a State Legislative Assembly

under Article 191 read with the Tenth Schedule to

the Constitution of India?

(b)Whether even in exercise of its powers of judicial

review, the High Court, as a constitutional

authority, can issue mandatory directions to the

Speaker of a State Assembly, who is himself a

constitutional authority, to dispose of a

disqualification petition within a specified time?

(c)Can the High Court, in its writ jurisdiction,

interfere with the disqualification proceedings

pending before the Speaker and pass an order

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temporarily disqualifying a Member of the State

Legislative Assembly, despite the law laid down by

this Court in Raja Soap Factory vs. V. Shantharaj &

Ors. [(1965(2) SCR 800] and in L. Chandra Kumar vs.

Union of India [(1997) 3 SCC 261], to the contrary?

(d)When a disqualification petition filed under Article

191 read with the Tenth Schedule to the Constitution

of India is pending consideration before the

Speaker, can a parallel Writ Petition, seeking the

same relief, be proceeded with simultaneously? And

(e)Did the High Court have jurisdiction to give

directions under Order 41 Rule 33 of the Code of

Civil Procedure, despite the express bar contained

in the Explanation to Section 141 of the Code of

Civil Procedure, in proceedings under Article 226 of

the Constitution?

6. In order to provide the peg on which the above

questions are to be hung, it is necessary to understand

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the background in which such substantial questions of law

have arisen.

7. The 12

th

Legislative Assembly Elections in Haryana

were held on 13

th

October, 2009. After the results of the

elections were declared on 22

nd

October, 2009, the Indian

National Congress Party, hereinafter referred to as ‘the

INC’, emerged as the single largest party having won in

40 out of the 90 seats in the Assembly. Since it was

short of an absolute majority, the INC formed the

Government in collaboration with seven independents and

one MLA from the Bahujan Samaj Party. Subsequently, on

9

th

November, 2009, four Legislative Members of the

Haryana Janhit Congress (BL) Party, hereinafter referred

to as ‘the HJC (BL)’, wrote to the Speaker of their

intention to merge the HJC (BL) with the INC in terms of

the provisions of paragraph 4 of the Tenth Schedule to

the Constitution of India. The Speaker was requested to

accept the merger and to recognize the applicant

legislators as Members of the INC in the Haryana Vidhan

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Sabha.

8. On hearing the four legislators, namely, Shri

Satpal Sangwan, Shri Vinod Bhayana, Shri Narendra Singh

and Shri Zile Ram Sharma, who appeared before him, the

Speaker by his order dated 9

th

November, 2009, accepted

the merger with immediate effect, purportedly in terms of

paragraph 4 of the Tenth Schedule to the Constitution and

directed that from the date of his order the said four

legislators would be recognized as legislators of the INC

in the Haryana Vidhan Sabha. Thereafter, a similar

request was made to the Speaker by Shri Dharam Singh,

another Member of the Vidhan Sabha elected as a candidate

of the HJC (BL) to recognize the merger of the HJC (BL)

with the INC and to also recognize him, along with the

other four legislators, as Members of the INC in the

Haryana Vidhan Sabha. Subsequently, another application

was filed by Shri Dharam Singh before the Speaker on 10

th

November, 2009, requesting him to be recognized as a part

of the INC in the Haryana Vidhan Sabha. The Speaker by a

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separate order dated 10

th

November, 2009, allowed the

said application upon holding that the same was in

consonance with paragraph 4(1) of the Tenth Schedule to

the Constitution.

9. Challenging the aforesaid orders, the Respondent

No.1, Shri Kuldeep Bishnoi, filed five separate petitions

before the Speaker under Article 191 read with the Tenth

Schedule to the Constitution of India and the Haryana

Legislative Assembly (Disqualification of Members on

Ground of Defection) Rules, 1986, on the ground that they

had voluntarily given up the membership of their original

political party and had joined the INC in violation of

the provisions of paragraph 4(1) of the Tenth Schedule.

10. On receipt of the said petitions, the Speaker on

22

nd

December, 2009, forwarded copies thereof to the

concerned MLAs, asking them to submit their comments

within a period of three weeks. On 7

th

April, 2010,

applications were received by the Speaker from the

concerned MLAs praying for time to file their written

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statement. The matter was accordingly adjourned and

further time was granted to the concerned MLAs to file

their explanation. The Respondent No.1, Shri Kuldeep

Bishnoi, however, filed a Writ Petition, being C.W.P.

No.14194 of 2010, in the Punjab & Haryana High Court,

seeking quashing of the orders passed by the Speaker on

9

th

and 10

th

November, 2009, and also for a declaration

that the five MLAs in question were disqualified from the

membership of the Haryana Vidhan Sabha, and, in the

alternative, for a direction on the Speaker to dispose of

the disqualification petitions within a period of three

months. Notice of motion was issued to the Respondents

on 16

th

August, 2010, directing them to enter appearance

and to file their written statements, within three days

before the next date of hearing fixed on 1

st

September,

2010, either in person or through a duly-instructed

Advocate.

11. On receipt of notice from the High Court, the

Speaker by his order dated 30

th

August, 2010, adjourned

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the hearing of the disqualification petitions sine die.

On 20

th

December, 2010, the learned Single Judge of the

High Court allowed the Writ Petition and directed the

Speaker to finally decide the disqualification petitions

pending before him within a period of four months from

the date of receipt of the certified copy of the order,

which direction has given rise to the question as to

whether the High Court in its jurisdiction under Articles

226 and 227 of the Constitution was competent to issue

such a direction to the Speaker who was himself a

constitutional authority.

12. In terms of the order passed by the learned

Single Judge, the date of hearing of the five

disqualification petitions was fixed for 20

th

January,

2011, by the Speaker. On the said date, Dharam Singh,

one of the Appellants before us, filed his reply before

the Speaker along with an application for striking out

“the scandalous, frivolous and vexatious” averments made

in the disqualification petition. The matters had to be

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adjourned on the said date till 4

th

February, 2011, to

enable the Writ Petitioner to file his reply to the said

application and for further consideration.

13. On the very next day, Letters Patent Appeal No.366

of 2011 was filed by the Speaker, challenging the order

passed by the learned Single Judge of the High Court on

20

th

December, 2010. On 1

st

March, 2011, the said LPA was

listed before the Division Bench which stayed the

operation of the judgment of the learned Single Judge. A

submission was also made by the learned Solicitor General

of India, appearing on behalf of the Speaker, that every

attempt would be made to dispose of the disqualification

petitions as expeditiously as possible.

14. Thereafter, the disqualification petitions were

taken up for hearing by the Speaker on 1

st

April, 2011,

and the case was adjourned till 20

th

April, 2011, for

further arguments. On 20

th

April, 2011, counsel for the

parties were heard and order was reserved on the

application under Order 6 Rules 2 and 16 of the Code of

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Civil Procedure, which had been filed by Shri Dharam

Singh. By his order dated 27

th

April, 2011, the Speaker

dismissed the said application filed by Dharam Singh and

Shri Kuldeep Bishnoi was directed to file his list of

witnesses along with their affidavits within 15 days from

the date of the order. It was also mentioned in the

order that counsel for the Respondents would be given an

opportunity to cross-examine the Writ Petitioner’s

witnesses. Thereafter, the Speaker fixed 25

th

May, 2011,

for examination/cross-examination of Shri Kuldeep

Bishnoi, MLA, and his witnesses, and on the said date

Shri Bishnoi’s evidence was tendered and recorded.

However, his cross-examination could not be completed and

the next date for further cross-examination of Shri

Kuldeep Bishnoi was fixed for 6

th

June, 2011. In

between, on 2

nd

June, 2011, the matter came up before the

Division Bench of the High Court when directions were

given for hearing of the petitions at least every week

i.e. at least four times in a month. However, on account

of the sudden demise of Chaudhary Bhajan Lal, M.P. and

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former Chief Minister of Haryana, and also the father of

Shri Kuldeep Bishnoi, the disqualification petitions were

adjourned by the Speaker till 20

th

June, 2011. On 21

st

June, 2011, the Speaker fixed all disqualification

petitions for hearing on 24

th

June, 2011 and for further

cross-examination of Shri Kuldeep Bishnoi. The cross-

examination of Shri Kuldeep Bishnoi was concluded before

the Speaker on 7

th

July, 2011, and 5

th

August, 2011, was

fixed for recording the evidence of the MLAs. On 18

th

July, 2011, Letters Patent Appeal No.366 of 2011 and

other connected matters were listed before the Division

Bench of the High Court. The said Appeal was heard on

three consecutive days when judgment was reserved.

15. In the meantime, proceedings before the Speaker

continued and since the same were not being concluded in

terms of the assurances given, the Division Bench of the

High Court directed the Speaker to file an affidavit on

or before 11

th

November, 2011. Finally, being

dissatisfied with the progress of the pending

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disqualification petitions before the Speaker, the

Division Bench took up the Letters Patent Appeals on 2

nd

December, 2011, when directions were given for production

of the entire records of the matter pending before the

Speaker. On 7

th

December, 2011, the relevant records of

the proceedings before the Speaker were submitted to the

High Court which adjourned the matter till 19

th

December,

2011, for further consideration. However, as alleged on

behalf of the Appellants, the Bench was not constituted

on 19

th

December, 2011, and without any further hearing

or giving an opportunity to the Speaker’s counsel to make

submissions on the status report, the High Court

proceeded to pronounce its judgment on the Letters Patent

Appeals. By its judgment which has been impugned in

these proceedings, the Division Bench upheld the

directions of the learned Single Judge directing the

Speaker to decide the disqualification petitions within a

period of four months. However, while disposing of the

matter, the Division Bench stayed the operation of the

orders passed by the Speaker on the merger of the HJC

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(BL) with the INC dated 9

th

November, 2009 and 10

th

November, 2009. It also declared the five MLAs, who have

filed separate appeals before this Court, as being

unattached members of the Assembly with the right to

attend the Sessions only. It was directed that they

would not be treated either as a part of the INC or the

HJC(BL) Party, with a further direction that they would

not hold any office either. It is the aforesaid

directions and orders which have resulted in the filing

of the several Special Leave Petitions (now Civil

Appeals) before this Court by the Speaker and the five

concerned MLAs. As a consequence of the order passed by

the Division Bench of the High Court, the five

independent Appellants before us have been prevented from

discharging their functions as Members of the Haryana

Vidhan Sabha, even before the disqualification petitions

filed against them by Shri Kuldeep Bishnoi could be heard

and decided.

16. Appearing for the Speaker of the Vidhan Sabha, who

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is the Appellant in the appeal arising out of SLP(C)No.54

of 2012, Mr. Rohington F. Nariman, Solicitor General of

India, contended that this was not a case where the

survival of the Government depended upon allegiance of

the five MLAs under consideration, since the Government

was formed with the support of seven Independents and one

MLA from the Bahujan Samaj Party. In fact, the five MLAs,

against whom disqualification petitions are pending

consideration before the Speaker, were not part of the

Government when it was initially formed.

17. Mr. Nariman contended that the learned Single

Judge decided the issue of merger in terms of paragraph 4

of the Tenth Schedule to the Constitution by holding that

the two orders dated 9

th

and 10

th

November, 2009, were not

final or conclusive and that, in any event, when the

disqualification petitions came to be decided, it would

be open for the Speaker to reconsider the issue of

merger. The learned Solicitor General emphasized the

fact that there was neither any appeal nor any cross-

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objection in respect of the aforesaid decision of the

learned Single Judge and even if the same fell within one

of the exceptions indicated in Banarsi Vs. Ram Phal

[(2003) 9 SCC 606], the judgment must still be held to

have become final between the parties. The learned

Solicitor General urged that all the decisions which had

been cited on behalf of the Respondent No.1, were

decisions rendered prior to the judgment in Banarsi’s

case (supra). It was, therefore, submitted that the

decision in Banarsi’s case (supra) is the final view in

regard to the provisions of Order 41 Rule 33 of the Code

of Civil Procedure.

18. The learned Solicitor General then challenged the

orders of the Division Bench of the High Court on the

ground of violation of the principles of natural justice.

It was contended that while the High Court had concluded

the hearing and reserved judgment on 20

th

July, 2011, by

order dated 12

th

October, 2011, it directed the Speaker

to place on record the status of the proceedings relating

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to the disqualification petitions. Although, the same

were duly filed, without giving the parties further

opportunity of hearing with regard to the said records,

the Division Bench directed the matter to be listed for

further consideration on 19

th

December, 2011. It was

submitted that though the Bench did not assemble on 19

th

December, 2011, the Division Bench delivered the impugned

judgment on 20

th

December, 2011, without any further

opportunity of hearing to the parties.

19. The learned Solicitor General submitted that the

procedure adopted was contrary to the law laid down in

Kihoto Hollohan vs. Zachillhu [(1992) Supp. (2) SCC 651],

wherein it was stated as under:-

“110. In view of the limited scope of judicial

review that is available on account of the

finality clause in Paragraph 6 and also having

regard to the constitutional intendment and the

status of the repository of the adjudicatory

power i.e. Speaker/Chairman, judicial review

cannot be available at a stage prior to the

making of a decision by the Speaker/Chairman and

a quia timet action would not be permissible.

Nor would interference be permissible at an

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interlocutory stage of the proceedings.

Exception will, however, have to be made in

respect of cases where disqualification or

suspension is imposed during the pendency of the

proceedings and such disqualification or

suspension is likely to have grave, immediate

and irreversible repercussions and consequence.”

20. The learned Solicitor General sought to reemphasize

the fact that the present case is not a case involving

disqualification or suspension of a Member of the House

by the Speaker during the pendency of the proceedings,

but relates to disqualification proceedings pending

before the Speaker, which were not being disposed of for

one reason or the other. It was submitted that the fact

that the Speaker had not finalized the disqualification

petitions for almost a period of two years, could not and

did not vest the High Court with power to usurp the

jurisdiction of the Speaker and to pass interim orders

effectively disqualifying the five MLAs in question from

functioning effectively as Members of the House. The

learned Solicitor General urged that the facts of this

case would not, therefore, attract the exceptions carved

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out in Kihoto Hollohan ’s case (supra).

21. The learned Solicitor General lastly urged that

the single-most important error in the impugned judgment

is that it sought to foreclose the right of the Speaker

to decide the disqualification petitions under paragraph

4 of the Tenth Schedule. The said decision was also

wrong since the Division Bench chose to follow judgments

which related to the concept of “split” under paragraph 3

of the Tenth Schedule, which today stands deleted

therefrom. The learned Solicitor General submitted that

there was a clear difference between matters relating to

the erstwhile paragraph 3 of the Tenth Schedule and

paragraph 4 thereof. While paragraph 3 of the Tenth

Schedule required proof of two splits, paragraph 4(2)

requires proof of only one deemed merger. The learned

Solicitor General submitted that there was no concept of

deemed split in paragraph 3. It was submitted that

paragraph 4(2) is meant only as a defence to a petition

for disqualification and the same would succeed or fail

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depending on whether there was a deemed merger or not.

22. It was further submitted that under paragraph 4 of

the Tenth Schedule, the Speaker was not the deciding

authority on whether a merger of two political parties

had taken place or not. It was urged that the

expression used in paragraph 4(2) of the Tenth Schedule

“for the purpose of paragraph 4(1)” clearly indicates

that the deeming provision is not in addition to, but for

the purpose of paragraph 4(1), which is entirely

different from the scheme of paragraph 3 which uses the

expression “and”, thereby indicating that a split takes

place only if there is a split in the original political

party and at least one-third of the members of the

legislature party also joined in. It was further

submitted that the use of the expression “if and only if”

in paragraph 4 of the Tenth Schedule is to re-emphasize

the fact that the Speaker cannot decide whether merger of

the original party had taken place, as he is only

required to decide whether merger was a defence in a

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disqualification petition filed under paragraph 6 of the

Tenth Schedule.

23. The learned Solicitor General then urged that the

submission advanced on behalf of the Respondent No.1 that

in view of the delay by the Speaker in disposing of the

disqualification petitions, this Court should decide the

same, was wholly misconceived, since it pre-supposes the

vesting of power to decide such a question on the Court,

though the same is clearly vested in the Speaker. Even

otherwise, in the absence of any Special Leave Petition

by the Respondent No.1, the most that could be done by

this Court would be to dismiss the Special Leave

Petition.

24. Distinguishing the various decisions cited before

the Division Bench on behalf of the Respondent No.1, and,

in particular, the decision in Rajendra Singh Rana vs.

Swami Prasad Maurya [(2007) 4 SCC 270], the learned

Solicitor General submitted that in the said case, the

life of the Assembly was almost over, whereas in the

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present case the next election would be held only in

October, 2014. Furthermore, the same was a judgment

where the final orders passed by the Speaker on the

disqualification petitions were under challenge, unlike

in the present case where the disqualification petitions

are still pending decision with the Speaker.

25. The learned Solicitor General submitted that if

the decision in Rajendra Singh Rana ’s case (supra) which,

inter alia, dealt with the question relating to the

Speaker’s powers to decide a question in respect of

paragraph 4 of the Tenth Schedule independent of any

application under paragraph 6 thereof, is to be made

applicable in the facts of this case, the same would be

contrary to the decision of this Court in Raja Soap

Factory vs. S.P. Shantharaj [(1965) 2 SCR 800]. The

learned Solicitor General also made special reference to

the decision of this Court in Mayawati vs. Markandeya

Chand & Ors. [(1998) 7 SCC 517], wherein it was, inter

alia, held that if the order of the Speaker disqualifying

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a Member was to be set aside, the matter had to go back

to the Speaker for a fresh decision, since it was not the

function of this Court to substitute itself in place of

the Speaker and decide the question which had arisen in

the case.

26. In addition to his aforesaid submissions, the

learned Solicitor General also submitted that various

substantial questions of law in regard to the

interpretation of the Constitution, had arisen in the

facts of the present case, namely,

(a)Whether paragraph 4 of the Tenth Schedule to the

Constitution, read as a whole, contemplates that

when at least two-thirds of the members of the

legislature party agree to a merger between one

political party and another, only then there is a

“deemed merger” of one original political party

with another?

(b)Whether in view of the difference in language

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between paragraphs 3 and 4 of the Tenth Schedule,

a deemed merger is the only thing to be looked at

as opposed to a “split” which must be in an

original political party cumulatively with a group

consisting of not less than one third of the

members of the legislature party?

(c)Whether post-merger, those who do not accept the

merger are subject to the anti-defection law

prescribed in the Tenth Scheudle?

(d)Whether there is a conflict between the five-judge

Benches in Rajendra Singh Rana v Swami Prasad

Maurya, (2007) 4 SCC 270 as against Kihoto

Hollohan, 1992 Supp (2) SCC 651 and Supreme Court

Advocate-on-Record Association case, (1988) 4 SCC

409?

(e)What is the status of an ‘unattached’ Member in

either House of Parliament or in the State

Legislature? [already under reference to a larger

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Bench in Amar Singh v Union of India, (2011) 1 SCC

210]?

(f)Whether in view of Article 212(2) of the

Constitution of India, if a Speaker of a State

Legislature fails to decide a Petition for

disqualification, he would not be subject to the

jurisdiction of any Court?

(g)Whether the Speaker, while exercising original

jurisdiction/powers in a disqualification petition

under Para 6(1) of the Tenth Schedule to the

Constitution of India, has power to pass interim

orders?

27. According to the learned Solicitor General, the

aforesaid questions, which involved interpretation of

the Constitution, were required to be decided by a Bench

of not less than 5 Judges in view of the constitutional

mandate in Article 145(3) of the Constitution, before a

final decision was taken in these appeals.

Page 28 28

28. Appearing for Shri Kuldeep Bishnoi, the Respondent

No.1 in the appeals preferred by the Speaker, Haryana

Vidhan Sabha, and the five MLAs, against whom

disqualification proceedings were pending, Mr. Nidhesh

Gupta, learned Senior Advocate, at the very threshold of

his arguments submitted that this was a case which

clearly demonstrated how the process of law was being

misapplied and misused by the Speaker of the Haryana

Vidhan Sabha, so as to defeat the very purpose and

objective of the anti-defection law as contained in the

Tenth Schedule to the Constitution. Mr. Gupta emphasized

in great detail the manner in which the Speaker had

deferred the hearing of the disqualification petitions

filed by the Respondent No.1 against the five MLAs, on

one pretext or the other, despite the fact that the

applications for disqualification under paragraph 4(2) of

the Tenth Schedule to the Constitution had been made as

far back as on 9

th

December, 2009.

29. Mr. Gupta submitted that till today, the said

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disqualification applications are pending decision before

the Speaker and since such delay in the disqualification

proceedings was against the very grain and object of the

Tenth Schedule to the Constitution, the Division Bench of

the High Court had no other option but to pass

appropriate orders by invoking jurisdiction under Order

41 Rule 33 of the Code of Civil Procedure. In effect,

the entire burden of Mr. Gupta’s submissions was directed

against the prejudice caused to the Respondent No.1 on

account of the inaction on the part of the Speaker in

disposing of the pending disqualification petitions

within a reasonable time. Mr. Gupta sought to justify

the impugned order passed by the Division Bench of the

High Court on the ground that on account of the

deliberate delay on the part of the Speaker in allowing

the five dissident MLAs from continuing to function as

Members of the House despite their violation of the

provisions of paragraph 4(4) of the Tenth Schedule to the

Constitution, the High Court in exercise of its appellate

powers under Order 41 Rule 33 of the Code of Civil

Page 30 30

Procedure gave interim directions so as to ensure that

the Petitioner before the Speaker was non-suited on

account of the Speaker’s attempts to delay the

disqualification of the said five MLAs.

30. Mr. Gupta submitted that by virtue of the interim

order passed by the Division Bench of the High Court

under Order 41 Rule 33 of the Code of Civil Procedure,

hereinafter referred to as “CPC”, the High Court merely

suspended the said Members from discharging all their

functions as Members of the House, without touching their

membership. He submitted that such a course of action

was the only remedy available to the High Court to

correct the deliberate and willful attempt by the Speaker

to subvert the very essence of the Tenth Schedule to the

Constitution.

31. For all the submissions advanced by Mr. Gupta, the

main weapon in his armoury is Order 41 Rule 33 CPC. The

same is only to be expected, since no final order had

been passed by the Speaker on the disqualification

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petitions, which would have entitled the High Court to

pass interim orders in exercise of its powers under

Article 226 and 227 of the Constitution, since it is only

the Speaker, who under paragraph 6 of Tenth Schedule to

the Constitution, is entitled to decide questions in

regard to disqualification of a Member of the House on

the ground of defection. Furthermore, all the different

cases cited by Mr. Gupta relate to proceedings taken

against final orders passed by the respective Speakers

and the width of the jurisdiction of the High Court under

Articles 226 and 227 of the Constitution.

32. Mr. Gupta dealt separately with the law relating

to Order 41 Rule 33 CPC in support of his contention that

under the said provision, the High Court was competent to

pass interim orders effectively disqualifying a Member of

the House, notwithstanding the provisions of paragraph 6

of Tenth Schedule to the Constitution. Mr. Gupta has

relied heavily on the decision of this Court in Mahant

Dhangir & Anr. vs. Madan Mohan & Ors. [(1987) Supp. SCC

Page 32 32

528] wherein, while considering the width of Order 41

Rule 33 CPC, this Court was of the view that a litigant

should not be left without remedy against the judgment of

a learned Single Judge and that if a cross-objection

under Rule 22 of Order 41 CPC was not maintainable

against the co-respondent, the Court could consider it

under Rule 33 of Order 41 CPC. This Court held that

Rules 22 and 33 are not mutually exclusive, but are

closely related to each other. If objection could not be

taken under Rule 22 against the co-respondent, Rule 33

could come to the rescue of the objector. It was also

observed that “the sweep of the power under Rule 33 is

wide enough to determine any question, not only between

the appellant and respondent, but also between the

respondent and co-respondents. The appellate court could

pass any decree or order which ought to have been passed

in the circumstances of the case.”

33. Mr. Gupta urged that the law, as declared by this

Court, indicates that under Order 41 Rule 33 CPC, this

Page 33 33

Court as an appellate Court, has power to pass any decree

or make any order which ought to have been passed or make

such further decree or order as the case may require.

34. Mr. Gupta also referred to the Constitution Bench

decision of this Court in L. Chandra Kumar vs. Union of

India [(1997) 3 SCC 261], in which the Bench was

considering the question as to whether under clause 2(d)

of Article 323-A, the jurisdiction of all Courts, except

the jurisdiction of this Court under Article 136 of the

Constitution, was excluded.

35. The very foundation of Mr. Gupta’s submissions is

based upon Order 41 Rule 33 CPC which ordinarily empowers

the Civil Court to pass any interim order in appeal.

What we are, however, required to consider in these

appeals is whether such jurisdiction could at all have

been invoked by the High Court when no final order had

been passed by the Speaker on the disqualification

petitions.

Page 34 34

36. Mr. Gupta lastly urged that the ground relating to

the mala fides of the Speaker’s inaction in delaying the

final decision in the disqualification proceedings, had

not been given up finally, as the very conduct of the

Speaker revealed such mala fides at almost every stage of

the pending proceedings.

37. While adopting the submissions made by the

Solicitor General, Mr. K.K. Venugopal and Mr. Mukul

Rohatgi, learned senior counsel, appearing for the

Appellants in the other appeals, submitted that the order

of the Division Bench would have far-reaching

consequences since the power to decide all matters

relating to disqualification of Members of the

Legislative Assembly were vested in the Speaker under

paragraph 6 of the Tenth Schedule to the Constitution.

38. During the pendency of the Special Leave

Petitions, I.A. Nos.2 and 3 were filed in Special Leave

Petition (Civil) No.54 of 2012 by S/Shri Ajay Singh

Chautala and Sher Singh Barshami, both MLAs in the

Page 35 35

Haryana Vidhan Sabha. A further application, being I.A.

No.4 of 2012, was filed by one Shri Ashok Kumar Arora,

who is also an MLA of the Haryana Vidhan Sabha. The

prayer in all the said applications was for leave to

intervene in the Special Leave Petition filed by the

Speaker of the Haryana Vidhan Sabha. The same were

allowed by Order dated 28

th

February, 2012.

39. Pursuant to the said order, Dr. Rajeev Dhawan,

learned senior counsel, appeared for Shri Ajay Singh

Chautala and the other interveners and urged that the

orders passed by the Speaker on 9

th

and 10

th

November,

2009, were void ab-initio and in excess of jurisdiction.

However, in the lengthy submissions advanced by Dr.

Dhawan in relation to the provisions of erstwhile

paragraph 3 and paragraph 4 of the Tenth Schedule to the

Constitution, reference was made to various decisions of

this Court, including that in Rajendra Singh Rana ’ s case

(supra). The same are, however, all based on decisions

taken by the Speaker on the question of “split” or

Page 36 36

“merger”, while in the instant case we are concerned with

the inaction of the Speaker in disposing of the

disqualification petitions filed by the Respondent No.1

and the jurisdiction of the High Court to issue interim

orders restraining a Member of the House from discharging

his functions as an elected representative of his

constituents despite the provisions of paragraph 6 of the

Tenth Schedule to the Constitution.

40. Most of the questions raised by Mr. Nidhesh Gupta

and Dr. Rajeev Dhawan contemplate a situation where the

Speaker had taken a final decision on a disqualification

petition. However, in the instant case we are really

required to consider whether the High Court was competent

to pass interim orders under its powers of judicial

review under Articles 226 and 227 of the Constitution

when the disqualification proceedings were pending before

the Speaker. In fact, even in Kihoto Hollohan ’s case

(supra), which has been referred to in extenso by Dr.

Dhawan, the scope of judicial review has been confined to

Page 37 37

violation of constitutional mandates, mala fides, non-

compliance with rules of natural justice and perversity,

but it was also very clearly indicated that having regard

to the constitutional scheme in the Tenth Schedule,

normally judicial review could not cover any stage prior

to the making of the decision by the Speaker or the

Chairman of the House, nor any quia timet action was

contemplated or permissible.

41. From the submissions made on behalf of the

respective parties, certain important issues emerge for

consideration. One of the said issues raised by Mr.

Nidhesh Gupta concerns the competence of the High Court

to assume jurisdiction under Order 41 Rule 33 CPC when

disqualification petitions were pending before the

Speaker and were yet to be disposed of. Another

important issue which arises, de hors the submissions

made on behalf of the respective parties, is whether the

question of disqualification on account of merger, which

had been accepted by the Speaker, could have been

Page 38 38

entertained by the Speaker under paragraph 4 of The Tenth

Schedule, when such powers were vested exclusively in the

Speaker under paragraph 6 thereof.

42. Relying on the decisions of this Court in Kihoto

Hollohan’s case (supra), Jagjit Singh Vs. State of

Haryana [(2006) 11 SCC 1] and Mayawati’s case (supra),

the learned Single Judge came to the conclusion that

while passing an order under paragraph 4 of the Tenth

Schedule to the Constitution, the Speaker does not act as

a quasi-judicial authority and that such order would

necessarily be subject to adjudication under paragraph 6.

43. Accordingly, the main challenge to the impugned

decision of the Division Bench of the Punjab & Haryana

High Court is with regard to the competence of the

Speaker of the Assembly to decide the question of

disqualification of the Members of the Haryana Janhit

Congress (BL) Party on their joining the Indian National

Congress Party on the basis of the letters written by the

five Members of the former legislature party.

Page 39 39

Incidentally, the learned Single Judge held that the

issue would have to be decided by the Speaker himself

while considering the disqualification petitions under

paragraph 6 of the Tenth Schedule to the Constitution.

What is important, however, is the question as to whether

such a decision could be arrived at under paragraph 4 of

the Tenth Schedule to the Constitution whereunder the

Speaker has not been given any authority to decide such

an issue. Paragraph 4 merely indicates the circumstances

in which a Member of a House shall not be disqualified

under Sub-paragraph (1) of Paragraph 2. One of the

circumstances indicated is where the original political

party merges with another political party and the Member

claims that he and any other Member of his original

political party have become Members of such other

political party, or, as the case may be, of a new

political party formed by such merger. As stressed by

the learned Solicitor General, for the purpose of sub-

paragraph (1), the merger of the original political party

of a Member of the House, shall be deemed to have taken

Page 40 40

place if, and only if, not less than two-thirds of the

Members of the legislature party concerned agreed to such

merger. In other words, a formula has been laid down in

paragraph 4 of the Tenth Schedule to the Constitution,

whereby such Members as came within such formula could

not be disqualified on ground of defection in case of the

merger of his original political party with another

political party in the circumstances indicated in

paragraph 4(1) of the Tenth Schedule to the Constitution.

44. The scheme of the Tenth Schedule to the

Constitution indicates that the Speaker is not competent

to take a decision with regard to disqualification on

ground of defection, without a determination under

paragraph 4, and paragraph 6 in no uncertain terms lays

down that if any question arises as to whether a Member

of the House has become subject to disqualification, the

said question would be referred to the Speaker of such

House whose decision would be final. The finality of the

decisions of the Speaker was in regard to paragraph 6

Page 41 41

since the Speaker was not competent to decide a question

as to whether there has been a split or merger under

paragraph 4. The said question was considered by the

Constitution Bench in Rajendra Singh Rana ’s case (supra).

While construing the provisions of the Tenth Schedule to

the Constitution in relation to Articles 102 and 191 of

the Constitution, the Constitution Bench observed that

the whole proceedings under the Tenth Schedule gets

initiated as a part of disqualification proceedings.

Hence, determination of the question of split or merger

could not be divorced from the motion before the Speaker

seeking a disqualification of the Member or Members

concerned under paragraph 6 of the Tenth Schedule. Under

the scheme of the Tenth Schedule the Speaker does not

have an independent power to decide that there has been

split or merger as contemplated by paragraphs 3 and 4

respectively and such a decision can be taken only when

the question of disqualification arises in a proceeding

under paragraph 6. It is only after a final decision is

rendered by the Speaker under paragraph 6 of the Tenth

Page 42 42

Schedule to the Constitution that the jurisdiction of the

High Court under Article 226 of the Constitution can be

invoked.

45. We have to keep in mind the fact that these

appeals are being decided in the background of the

complaint made to the effect that interim orders have

been passed by the High Court in purported exercise of

its powers to judicial review under Articles 226 and 227

of the Constitution, when the disqualification

proceedings were pending before the Speaker. In that

regard, we are of the view that since the decision of the

Speaker on a petition under paragraph 4 of the Tenth

Schedule concerns only a question of merger on which the

Speaker is not entitled to adjudicate, the High Court

could not have assumed jurisdiction under its powers of

review before a decision was taken by the Speaker under

paragraph 6 of the Tenth Schedule to the Constitution.

It is in fact in a proceeding under paragraph 6 that the

Speaker assumes jurisdiction to pass a quasi-judicial

Page 43 43

order which is amenable to the writ jurisdiction of the

High Court. It is in such proceedings that the question

relating to the disqualification is to be considered and

decided. Accordingly, restraining the Speaker from

taking any decision under paragraph 6 of the Tenth

Schedule is, in our view, beyond the jurisdiction of the

High Court, since the Constitution itself has vested the

Speaker with the power to take a decision under paragraph

6 and care has also been taken to indicate that such

decision of the Speaker would be final. It is only

thereafter that the High Court assumes jurisdiction to

examine the Speaker’s order.

46. The submissions made by Mr. Nidhesh Gupta relating

to Order 41 Rule 33, in our view, are not of much

relevance on account of what we have indicated

hereinabove. Order 41 Rule 33 vests the Appellate Court

with powers to pass any decree and make any order which

ought to have been passed or made and to pass or make

such further or other decree or the order, as the case

Page 44 44

may require. The said power is vested in the Appellate

Court by the statute itself, but the principles thereof

cannot be brought into play in a matter involving a

decision under the constitutional provisions of the Tenth

Schedule to the Constitution, and in particular paragraph

6 thereof.

47. The appeal filed by the Speaker, Haryana Vidhan

Sabha, against the judgment of the Division Bench of the

High Court, is not, therefore, capable of being sustained

and the Appeal filed by the Speaker is accordingly

dismissed. The other Appeals preferred by the five

disqualified MLAs have, therefore, to be allowed to the

extent of the directions given by the learned Single

Judge and endorsed by the Division Bench that the five

MLAs would stand disqualified from effectively

functioning as Members of the Haryana Vidhan Sabha till

the Speaker decided the petitions regarding their

disqualification, within a period of four months.

48. In our view, the High Court had no jurisdiction to

Page 45 45

pass such an order, which was in the domain of the

Speaker. The High Court assumed the jurisdiction which it

never had in making the interim order which had the

effect of preventing the five MLAs in question from

effectively functioning as Members of the Haryana Vidhan

Sabha. The direction given by the learned Single Judge

to the Speaker, as endorsed by the Division Bench, is,

therefore, upheld to the extent that it directs the

Speaker to decide the petitions for disqualification of

the five MLAs within a period of four months. The said

direction shall, therefore, be given effect to by

Speaker. The remaining portion of the order

disqualifying the five MLAs from effectively functioning

as Members of the Haryana Vidhan Sabha is set aside. The

said five MLAs would, therefore, be entitled to fully

function as Members of the Haryana Vidhan Sabha without

any restrictions, subject to the final decision that may

be rendered by the Speaker in the disqualification

petitions filed under paragraph 6 of the Tenth Schedule

to the Constitution.

Page 46 46

49. The Speaker shall dispose of the pending

applications for disqualification of the five MLAs in

question within a period of three months from the date of

communication of this order.

50. Having regard to the peculiar facts of the case,

the parties shall bear their own costs.

……………………………………………………… J.

(ALTAMAS KABIR)

……………………………………………………… J.

(J. CHELAMESWAR)

New Delhi

Dated:28.09.2012.