JUDGMENT
A.K. Mathur, C.J.
1. The petitioners by this petition have prayed that by appropriate writ or order, orders dated 1-5-1991 (Annexures P-12 and P-13) passed by the Speaker may be quashed and they may be allowed to continue to represent their respective constituencies as Members of the Legislative Assembly of Madhya Pradesh till the expiration of the term.
2. Brief facts giving rise to this petition are that all the six petitioners were elected as Members of Legislative Assembly (for short ‘M.L.A.’) of Madhya Pradesh in 1990 Assembly elections on the Janata Dal election symbol. We need not go into the facts as to how Janata Dal splitted at national level and ultimately in the State of Madhya Pradesh. Suffice it to say that the Janta Dal at the national level splitted from the parent body on 27th December, 1990 and a separate new party known as M.P. Janata Dal (Samajvadi) was formed in Madhya Pradesh. A resolution to this effect dated 2nd April, 1991 has been placed on record as Annexure P-1. On 3rd April, 1991 vide Annex. P-2, Shri Vidhya Charan Shukla, Ex-President of Janata Dal informed the Speaker, M.P. Legislative Assembly, Bhopal about the split. Thereafter on 16th April, 1991 (Annex. P-6), the Speaker was informed by the six MLAs’ namely Shri Arun Mishra, Shri Mangal Faraq, Shri Santosh Agrawal, Shri Laxman Jaideo Satpathi, Shri Ashok Rao and Shri Shiv Kumar Singh that in view of the division in Janata Dal with reference to resolution dated 3rd April, 1991, they had formed a separate group known as the Progressive Party which has more than half of the original numbers of the party. On 18th April, 1991, a resolution was passed by the so called Progressive Party that all the six MLAs had unanimously resolved to merge with the Indian National Congress. Copy of the same has been placed on record as Annex. P-7.
3. On 6th April, 1991 vide Annexure P-4, one Neha Singh, M.L.A., Kewlari, District Seoni
filed a petition before the Speaker praying that all the five M.L.A.s of Janata Dal (S) who have joined Indian National Congress Party be disqualified from membership of the Legislative Assembly under the Xth Schedule of the Constitution of India. Subsequently one Shri Shailendra Pradhan also filed a petition in which he complained against all the six MLAs (petitioners). Copies of these petitions were given to the petitioners on 18th April, 1991. A preliminary objection was filed by way of joint reply to the applications/petitions of Neha Singh and Shailendra Pradhan on 16th April, 1991. Copy of reply dated 16-4-1991 is on record as Annexure P-5 that the petition has not been filed in accordance with Rule 6 of the M.P. Legislative Assembly Members (Disqualification on the ground of Defection) Rules, 1986 (for short the Rules of 1986). It was also stated that since there was a very short time, they reserved their right to file detailed reply.
4. On 23rd April, 1991 (Annex. P-8), a notice was issued by the Speaker to all the six MLAs (Petitioners) to appear before him on 29-4-1991 at 4.00 p.m. for personal hearing. On 29th April, 1991, an application was made before the Speaker thereby seeking further time in order to give an opportunity to the petitioners for leading necessary evidence, Secondly it was contended that one of the MLAs Shri Shiv Kumar Singh had filed nomination for by-election of Parliamentary Constituency Khandwa and therefore, it was not possible for him to appear before the Speaker and reasonable time be given to him for arguments and necessary evidence, The case was then fixed for 30-4-1991. On 30-4-1991, the Speaker closed the case and passed order on 1st May, 1991 Annex. P-12 declaring all the six MLAs disqualified under the Rules of 1986. Hence, the present petition was filed before Hon’ble Supreme Court challenging order dated 1st May, 1991 passed by the Speaker and also challenging the validity of Xth Schedule to the Constitution.
5. Hon’ble Supreme Court in the case of Kihota Holichen v. Zechilhu, AIR 1993 SC 412 by majority judgment affirmed the validity of Tenth Schedule to the Constitution excluding paragraph 7 thereof. When this matter came up before the Hon’ble Supreme Court, their Lordships by order dated 12th December, 1991 transferred this case to this Court. The Hon’ble
Supreme Court passed following order in W.P. No. 848 of 1991 :
“The six petitioners in this writ petition were elected members of the Madhya Pradesh Legislative Assembly. On 1st May, 1991 the Speaker of the Madhya Pradesh Legislative Assembly, in exercise of the powers under the Tenth Schedule of the Constitution (introduced by the Constitution (52nd Amendment) Act, 1985 made an order disqualifying them on the ground of defection.
One of the reliefs sought in the writ petition was a declaration as to the invalidity of the Amendment itself by which the Tenth Schedule was inlrodueed. That aspect of the matter is now covered by the pronouncement of the Constitutional Bench of this Court made in Shri Kihota Hollchon v. Zachillu, T.P. (C) No. 40/91, dated 12-11-91. It was held that the Amending Bill containing a provision like Paragraph 7 of the Tenth Schedule attracted the proviso to Article 368(2) of the Constitution and the non-compliance with requirements of the said proviso had the effect of invalidating the paragraph 7 of the Tenth Schedule. The wider proposition that the effect of such non-compliance was to render the whole of the Tenth Schedule itself as a mere short lived attempt to amend was not accepted,
The aspects and contentions in the present writ petition that survive for consideration pertain to, and turn on the construction of certain provisions of the Tenth Schedule as to when a split could be said to take place whether it is a one-time transaction occuring at a fixed point of time or whether the expression can take within its ambit a series of connected or correlated events depending on the fact situation of each case. It is appropriate that the writ petition is examined under Article 226 of the Constitution by the High Court.
We accordingly transfer this petition to the High Court of Madhya Pradesh, to be registered as a writ petition under Article 226 of the Constitution of India, heard and disposed of in accordance with law. During the pendency of the writ petition, the interlocutory order of stay granted by this Court shall subsist.
The parties shall be at liberty to move the High Court for leave to permit such additional pleading as the High Court may consider necessary or
appropriate.”
This is how we are now seized with the matter to decide whether the order of the Speaker dated 1st May, 1991 is valid or not. Before, we do so, we may summarise the conclusions of their Lordships given in the case of Kihota Mollchon v. Zachilhu, (AIR 1993 SC 412) (supra). The operative conclusions in the majority judgment have been summarised as under:–
“(A) That having regard to the background and evalution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Artsicles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would be required to be ratified in accordance with the proviso to Sub-Article (2) of Article 368 of the Constitution of India.
(B) That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that ‘thereupon the Constitution shall stand amended’ the operation of the proviso should not be extended to Constitutional amendments in a Bill which can stand by themselves without such ratification.
(C) That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified.
(D) That paragraph 7 of the Tenth Schedule contains a provision which is independent of, and
stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of paragraph 7.
(E) That the paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.
The provisions of paragraph 2 do not violate any rights or freedom under Artsicles 105 and 194 of the Constitution.
The provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.
(F) the contention that the provisions of the Tenth Schedule, even with the exclusion of paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, the principles of Parliamentary democracy in unsound and is rejected.
(G) The Speakers/Chairman while exercising powers and discharging function under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quis timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repurcussions and consequence.
(H) That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But
the concept of statutory finality embodied in Paragraph 6(1),does not detract from or abrogate judicial review under Artsicles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of Constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity are concerned.
(I) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh’s case Spl. Ref. No. 1 (1965) 1 SCR 413 : AIR 1965 SC 745 to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the” words ‘be deemed to be proceedings in Parliament’ or ‘proceedings in the Legislature of a State’ confines the scope of the fiction accordingly.
(J) The contention that the investiture of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the Schme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and to take far-reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such a Constitutional functionaries should not be considered exceptionable.
(K) In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and paragraph 7 of the Tenth Schedule violates such basic structure.”
6. As per the majority view, the Speaker shall exercise powers and discharge functions under the Tenth Schedule as a Tribunal adjudicating rights and obligations under the Tenth Schedule and the decision of the Speaker is amenable to judicial review. It was also observed that the concept of statutory finality embodied in paragraph 6(1) does not detract from or abrogate judicial review under the Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity are concerned. Thus, the
judicial Courts can review the orders passed by the Speaker under the Tenth Schedule of the Constitution and examine the validity of the same, under Articles 226 and 227 of the Constitution of India by the High Court. Hence, now we will embark upon the merits of the orders passed by the Speaker on 1st May, 1991.
7. The State of Madhya Pradesh framed the Rules known as Madhya Pradesh Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 for disposing of such kind of petitions. Detailed rules have been framed in order to adjudicate such rights of the MLAs in the event they change parties. We need not go into the question of scheme of the rules because we are only concerned with regard to procedure for filing petition and its adjudication. Rule 6 of the Rules of 1986 deals with the manner in which a petition is to be filed. Rule 6 of the Rules of 1986 reads thus:–
“6. (1) No reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of this rule.
(2) A petition in relation to a member may be made in writing to the Speaker by any other member;
Provided that a petition in relation to the Speaker shall be addressed to the Secretary;
(3) The Secretary shall:
(a) as soon as may be after the receipt of a petition under the proviso to Sub-rule (2) make a report in respect thereof to the House and
(b) as soon as may be after the House has elected a member in pursuance of the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule place the petition before such member.
(4) Before making any petition in relation to any member, the petitioner shall satisfy himself that there are reasonable grounds for believing that a question has arisen as to whether such member has become subject to disqualification under the Tenth Schedule.
(5) Every petition;
(a) shall contain a concise statement of the material facts on which the petitioner relies; and
(b) shall be accompanied by copies of the
documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing the names and addresses of such persons and the gist of such information as furnished by each such person.
(6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings.
(7) Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.”
Rule 7 of the Rules of 1986 is also relevant here. Rule 7 reads as under :–
“7. (1) On receipt of petition under Rule 6, the Speaker 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 Speaker shall dismiss the petition and intimate the petitioner accordingly.
(3) If the petition complies with the requirements of Rule 6, the Speaker shall cause copies of the petition and of the annexures thereto to be forwarded,–
(a) to the member in relation to whom the petition has been made; and
(b) where such member belongs to any legislature party and such petition has not been made by the leader thereof also to such leader, and such member or leader shall, within seven days of the receipt of such copies, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the speaker.
(4) After considering the comments, if any, in relation to the petition, received under Sub-rule (3) within the period allowed (whether originally or on extension under that sub-rule), if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the petition to the Committee for making a preliminary inquiry and submitting a report to him.
(5) The Speaker shall, as soon as may be after referring a petition to the Committee under Sub-rule (4), intimate the petitioner accordingly and make an announcement with respect to such
reference in the House or, if the House is not then in session, cause the information as to the reference to be published in the Bulletin.
6. Where the Speaker makes a reference under Rule (4) to the Committee, he shall proceed to determine the question as soon as may be after receipt of the report from the Committee.
7. The procedure which shall be followed by the Speaker for determining any question and the procedure which shall be followed by the Committee for the purpose of making a preliminary inquiry under Sub-rule (4) shall be, so far as may be, the same as the procedure for enquiry and determination by the Committee of any question as to breach of privilege of the House by a member, and neither the Speaker nor the Committee shall come to any finding that a member has become subject to disqualification under the Tenth Schedule without affording a reasonable opportunity to such member to represent his case and to be heard in person.
8. The provisions of Sub-rules (1) to (7) shall apply with respect to petition in relation to the Speaker as they apply with respect to a petition in relation to any other member and for this purpose, reference to the Speaker in these Sub-rules shall be construed as including reference to the Member elected by the House under the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule.”
Rule 8 of the Rules of 1986 deals with recording of the conclusions of the Speaker or the member under the proviso to paragraph 6 of Tenth Schedule in the order dismissing the petition, or declaring that the member in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule.
8. We have gone through the order passed by the Speaker dated 1st May 1991. By his detailed order dated 1 st May 1991, the Speaker has found that all the six petitioners had become disqualified -as per Tenth Schedule and accordingly he has given this declaration. Shri Tankha, learned counsel for the petitioners submits that the order of the Speaker is without jurisdiction for the simple reason that the procedure prescribed under Rule 6 of the Rules of 1986 in regard to presentation of a petition has not been followed. Sub-rule (6) of Rule 6 of the Rules 1986 says that every petition shall be signed by the petitioner
and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. It is also pointed out that on the petition being filed under Rule 6, the Speaker shall consider whether the petition complies with the requirements of that rule, vide Sub-rule (1) of Rule 7 of the Rules of 1986. Sub-rule (2) of Rule 7 says that if the petition does not comply with the requirements of Rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly. Learned counsel for the petitioners submits that the petition which was filed before the Speaker did not contain a proper verification as required under Sub-rule (6) of Rule 6 which requires that the petition shall be duly signed and verified according to the provisions of Code of Civil Procedure 1908. It is submitted by the learned counsel that the petition which was filed initially with the Speaker did not contain any due verification as per the CPC. This is also apparent from the order passed by the Speaker. When this preliminary objection was raised before the Speaker, then it was observed by the Speaker that he got the petition properly verified. The Speaker observed as follows :
“19………… Yet, since Rule 6 (7) is mandatory,
that every paragraph or annexures should be verified by the complainant, hence this was got done by the applicant (complainant). Now, there remains no strength on this technical objection. Looking to this, the applications (complaints) filed by Smt. Neha Singh and Shri Shailendra Pradhan under Rule (6) as a whole arc treated to be according to Rules”.
From this, it appears that the original petition which was filed before the Speaker did not contain due verification as required under Sub-rule (6) of Rule 6 of the Rules of 1986. For not presenting a properly constituted petition before the Speaker, effect has been provided in Sub-rule (2) of Rule 7 of the Rules of 1986 that in such a situation the Speaker shall dismiss the petition and intimate the petitioner accordingly. The effect of non-compliance of Sub-rule (6) of Rule 6 of the Rules of 1986 is that the petition would have to be rejected under Sub-rule (2) of Rule 7 by the Speaker. Rule 7 (2) of the Rules of 1986 leave no room for discretion to the Speaker to get the incompetent and incomplete petition corrected during the course of hearing. If the petition filed before the Speaker is incompetent, then it cannot
be made competent by amending or correcting the same. Since the requirement of filing a correct and competent petition is a mandatory provision and effect of non-compliance thereof has been made mandatory, there was no option to the Speaker to permit any amendment at a later stage. The Speaker had no jurisdiction to permit amendment in the petition so as to bring it in order as required by Rule 6 (6) of the Rules of 1986. The only option which was available to the Speaker was to dismiss the incompetent petition as there was no rule permitting any amendment in the so called defective petition.
9. In the present case, as is clear from the order of the Speaker himself, the initial petition filed by Smt. Neha Singh and Shailendra Pradhan were defective and the Speaker permitted both the petitioners to amend the petitions in order to bring them in line with Sub-rule (6) of Rule 6 of the Rules of 1986 proceeded to decide the same on merits. This approach of the Speaker was absolutely illegal and without jurisdiction. The Speaker had no jurisdiction to permit any kind of correction or modification in the petition. If the petitions were not filed in terms of Sub-rule (6) of Rule 6 of the Rules of 1986, there was no option left to the Speaker but to dismiss the petitions. Unfortunately the Speaker permitted the amendment which was not warranted in law. The Speaker should have dismissed the petitions on the preliminary objection filed by petitioners and not to have addressed himself on the merit of the petitions. Hence, the order passed by the Speaker is illegal and deserves to be quashed.
10. Shri Tankha, learned counsel for the petitioners also submitted that the petitioners sought time to lead evidence as the time given was very short but the Speaker refused the request and proceeded to decide the matter with posthaste. Therefore, the order suffers from the/vice of principles of natural justice. We need not dilate on this question. We are satisfied that the order impugned is bad in law and without jurisdiction as the petition was not duly verified and signed as per Rule 6 (6) of the Rules of 1986 rendering it incompetent and incomplete and the Speaker could not have examined the same on merits.
11. Consequently, the order dated 1st May 1991 (Annexure-P12) passed by the Speaker is quashed and the consequential notification dated
1st May 1991 (Annexure-P13) disqualifying the petitioners (MLAs) is also quashed. The petition is accordingly allowed. There shall be no order as to costs. Security amount if any be refunded to the petitioners.