CWP No.

2900 of 2013 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.2900 of 2013
Dat of D!"#"o$.09.10.201%
Kuldeep Bishnoi s/o Late Ch. Bhajan Lal ......Petitioner
Versus
Speaker, Haryana Vidhan Sabha, Chandigarh and others
......Respondents
Present !r. S.P. "ain, Senior #d$o%ate &ith
!r. 'heeraj "ain, #d$o%ate
(or the petitioner.
!r. Sanjee$ Shar)a, Senior #d$o%ate &ith
!r. Shekhar Ver)a, #d$o%ate and
!s. Bha$na "oshi, #d$o%ate
(or respondent *os.+ and ,.
!r. !.L. Sarin, Senior #d$o%ate &ith
!s. #nkita Sa)byal, #d$o%ate and
!r. *itin Sarin, #d$o%ate
(or respondent *o.-.
!r. R.S. Chee)a, Senior #d$o%ate &ith
!r. Pa&an .irdhar, #d$o%ate
(or respondent *o./.
!r. Raji$ #t)a Ra), Senior #d$o%ate &ith
!r. #bhishek #rora, #d$o%ate
(or respondent *o.0.
!r. Harbhag&an Singh, Senior #d$o%ate and
!r. #run 1alia, Senior #d$o%ate &ith
!r. 'inesh Shar)a, #d$o%ate
(or respondent *os.2 and 3.
!r. 4arun Veer Vashist, #d$o%ate
(or respondent *o.5.
!r. *a)it Ku)ar, #d$o%ate
(or respondent *o.6.
CORA&'HON(B)E &R. JUSTICE *. *ANNAN
+. 1hether Reporters o( lo%al papers )ay be allo&ed to see the
judg)ent 7 Y#
/. 4o be re(erred to the Reporters or not 7 Y#
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0. 1hether the judg)ent should be reported in the 'igest7 Y#
8.8
*. *ANNAN J.
I. T+ #,-.!t of !+a//$0
+. 4he &rit petition %alls to 9uestion the %orre%tness o( the
de%ision o( the Speaker o( the Haryana Vidhan Sabha rendered on
+0.:+./:+0 reje%ting an appli%ation )o$ed by the petitioner Kuldeep
Bishnoi under Paragraph 5 o( 4enth S%hedule to the Constitution on the
issue o( dis9uali(i%ation o( 2 o( the )e)bers o( the Haryana "anhit
Congress ;BL< ;(or brie( =H"C ;BL<<. 4his %a)e on a petition (iled by the
petitioner (ollo&ing an order issued by the Speaker on :6.++./::6 signed
by - !L#s o( H"C ;BL< na)ely Satpal Sang&an, Vinod Bhayana, *arendra
Singh and >ile Ra) Cho%hra respe%ti$ely respondent *os.0 to 5. 4he
%o))uni%ation signed by the) &as to the e((e%t that a de%ision had
been taken to )erge the H"C ;BL< &ith ?ndian *ational Congress ;(or
brie( =?*C@< party in ter)s o( the pro$isions o( Paragraph - o( the 4enth
S%hedule o( the Constitution. 4he letter re9uested the a%%eptan%e o(
the )erger o( H"C ;BL< &ith ?*C and to re%ogniAe the appli%ant8
legislators as )e)bers o( the ?*C in the Haryana Vidhan Sabha. 4he
)inutes o( the )eeting o( the H"C ;BL< on :6.++./::6 a%%o)panying the
letter &as to the e((e%t that at a )eeting o( the Legislators o( the H"C
;BL< ele%ted to the +/th Haryana Legislati$e #sse)bly held on
:6.++./::6 to %onsider and de%ide to )erge the original H"C ;BL< &ith
the ?*C, the re9uisite legislature party )e)bers ha$e agreed to )erge
H"C ;BL< &ith ?*C. 4he Speaker in his order dated :6.++./::6 stated
%rypti%ally that he had perused the rele$ant pro$isions o( Constitution o(
?ndia and he &as o( the %onsidered opinion that the appli%ation deser$ed
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CWP No.2900 of 2013 -3-
a%%eptan%e in ter)s o( the pro$isions o( the Constitution. He also
re%orded the identity o( the appli%ants as &ell as de%ision as being
borne out o( Btheir (ree &illC. Leader o( the Congress Legislature Party
Sh. Bhupinder Singh Hooda and President, HPCC, Sh. Phool Chand
!ullana &ere reported to ha$e %o))uni%ated to hi) in &riting
a%%epting the )erger. #longside the order passed by the Speaker &as
also a letter o( %o))uni%ation by the 3th respondent in(or)ing the
Speaker that he &as una$ailable at Chandigarh and there(ore, he )o$ed
a separate appli%ation in(or)ing that he had also a%%orded &ith the
de%ision o( the )erger.
/. Di$e separate petitions &ere (iled under Se%tion +6+ read
&ith 4enth S%hedule o( the Constitution and the rules (ra)ed against
respondent *os.0 to 3 praying (or the dis9uali(i%ation o( abo$esaid
respondents as )e)bers o( Haryana Legislati$e #sse)bly. *ine other
petitions &ere also (iled by non8Congress )e)bers seeking (or si)ilar
dis9uali(i%ation against respondent *os.0 to 3. 4he petitions &hi%h had
been nu)bered as petitions *o.+ to +- &ere %lubbed together and the
i)pugned order &as passed on +0.:+./:+0.
II. A 1,"!2 3,$-,4 to !"3!,5#ta$!# /a6"$0 to t+ "54,0$6
o363
0. 4he petitionerEs appli%ations be(ore the Speaker under
Paragraph 5 had been (iled on :6.+/./::6 and it &ould be &orth&hile to
re%apitulate the (a%ts in brie( that led up to the passing o( the i)pugned
order. 4he i)pugned order itsel( %a)e through a judi%ial inter$ention
(ro) the Supre)e Court a(ter going through the initial judi%ial pro%ess
through dire%tions o( a Single Ben%h as )odi(ied by the 'i$ision Ben%h o(
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CWP No.2900 of 2013 -%-
this %ourt. 4he Supre)e Court set a de(inite date (or disposal that &ould
eFplain the pre$ious litigati$e journey (or this %ase.
-. ?n the (irst round o( litigation, &hi%h the petitioner had
initiated by (iling C1P *o.+-+6- o( /:+:, the petitioner )ade out a %ase
that the Speaker &as not likely to take any de%ision and the Speaker
&ho had been des%ribed by na)e and i)pleaded as /nd respondent had
literally de%ided the &hole issue (inally eF parte &ithout hearing the
petitioner. Sin%e he had already eFpressed the )ind, the petitioner
&ould %ontend that he &ould eFpe%t no justi%e (ro) the Speaker and
the subse9uent %ondu%t o( the Speaker in dealing &ith dis9uali(i%ation
petitions &ithout any sense o( urgen%y le(t no roo) to &ait (or any (air
de%ision by the Speaker. # learned Single Ben%h o( this Court passed the
judg)ent holding that an order passed under Paragraph - %ould
ne%essarily be subje%t to an adjudi%ation under Paragraph 5 &hen an
appli%ation had been (iled and the %hallenge brought (or the initial order
passed on :6.++./::6 ought to a&ait the de%ision on the appli%ation
(iled under Paragraph 5 o( the 4enth S%hedule o( the Constitution. 4he
Court also held that there &as no absolute i))unity gi$en to the
Speaker in the )anner o( ho& he &ould deal &ith the %ase parti%ularly
&ith re(eren%e to an a%t o( inde%ision by the Speaker &ithin a
reasonable ti)e. 4he Court issued dire%tions (or disposal o( the
dis9uali(i%ation petition &ithin a period o( - )onths (ro) the date o(
re%eipt o( %opy o( the order. ?n the appeals (iled against the order in
LP# *o.055 o( /:++, the 'i$ision Ben%h )odi(ied the dire%tions and
passed a judg)ent on /:.+/./:++ holding that the respondents &ould
not be dee)ed to be )e)bers o( the ?*C party nor that o( H"C ;BL< till
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a (inal adjudi%ation on the dis9uali(i%ation petitions. 4he 'i$ision Ben%h
dire%ted that they &ould re)ain as unatta%hed )e)bers o( the
asse)bly (or the purpose o( attending the sessions and (or no other
purpose. ?t also obser$ed that they shall not hold any o((i%e till the
de%ision o( the dis9uali(i%ation petitions and that the Speaker shall allot
the) separate seats in the house. 4he Speaker had appeared in Court
and had gi$en an undertaking that he &ill de%ide the %ase be(ore
0:.:-./:+/ and the Court re%orded the undertaking. 4his de%ision
rendered on /:.+/./:++ &as again the subje%t o( spe%ial lea$e petition
be(ore the Supre)e Court. 4he spe%ial lea$e petition had been at the
instan%e o( the Speaker and the respondents, &ho had been treated as
unatta%hed )e)bers. 4he de%ision o( the Supre)e Court that is
reported under the %aption Speaker, Haryana Vidhan Sabha Vs.
Kuldeep Bishnoi and others AIR 2013 S 120 set aside the dire%tions o(
the 'i$ision Ben%h as regards the dire%tion that respondents *o.0 to 3
shall be treated as unatta%hed )e)bers. 4he Supre)e Court obser$ed
that the High Court %ould not ha$e assu)ed jurisdi%tion under its po&ers
o( re$ie& be(ore a de%ision &as taken by the Speaker under Paragraph 5
o( the 4enth S%hedule o( the Constitution. 4he Supre)e Court obser$ed
that its order a)ounted to a restraint against the Speaker (ro) taking a
de%ision under Paragraph 5 o( the 4enth S%hedule and hen%e &as beyond
the jurisdi%tion o( the High Court. ?t held that it &as only a(ter the
Speaker took his de%ision, the High Court &ould assu)e jurisdi%tion and
the order dis9uali(ying the !L#s &hi%h &as in the do)ain o( the Speaker
&as not legally tenable. 4he 2 !L#s stood, there(ore, restored to their
(ull (un%tions as )e)bers o( the Haryana Vidhan Sabha &ithout any
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restri%tions. 1hile allo&ing the appeal, the Supre)e Court, ho&e$er
dire%ted the Speaker to dispose o( the pending appli%ations (or
dis9uali(i%ation &ithin a period o( three )onths (ro) the %o))uni%ation
o( the order. 4he order has %o)e to be passed under su%h
%ir%u)stan%es.
???. Eff!t of $o$-3!o0$"t"o$ of 5303 -9 C+"f E/!t"o$
Co55"##"o$3
2. G$en at the outset, ? )ay point out that the Chie( Gle%tion
Co))issioner, the 6
th
respondent, has itsel( not re%ogniAed the )erger
o( the H"C ;BL< &ith ?*C. ?t is brought out in their reply that H"C ;BL<
%ontinues to be a re%ogniAed State Party in Haryana. #s per the
Co))issionEs re%ords, there has been no )erger. 4he Co))issionEs
noti(i%ation dated +,.:+./:+0 still retains H"C ;BL< as a)ong the list o(
politi%al parties and ele%tion sy)bols. 4he 6
th
respondent has also
brought to (a%t that one Sh. *ishant #hla&at had gi$en a letter on
/2.:/./:+0 seeking (or de8re%ognition o( H"C ;BL< but the re9uest &as
reje%ted. 4he Co))ission has eFplained that registration and
re%ognition o( politi%al parties are done under Se%tion /6# o( the
Representation o( People #%t, +62+ and under the Gle%tion Sy)bols
;Reser$ation and #llot)ent< Hrder, +65,, &hile the de%ision o( the
Speaker is under S%h I o( the Constitution. ? noti%e that their respe%ti$e
(un%tions are )utually eF%lusi$e and de%ision o( one need not in(luen%e
the de%ision o( another. ? &holly a%%ept the argu)ent o( Sh. Sanjee$
Shar)a, the %ounsel (or the +
st
respondent in this regard. 4he eFer%ise
that ? ha$e undertaken no& is &holly independent o( and &ithout
re(eren%e to the CGCEs de%ision.
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?V. T+ 4o"$t# fo35,/at6 fo3 !o$#"63at"o$ -9 t+ H"0+ Co,3t
5. 4here ha$e been elaborate argu)ents )ade by %ounsel
appearing on behal( o( ea%h o( the parties. 4he Speaker, &ho passed the
order, has also been des%ribed by na)e and arrayed as /nd respondent
apart (ro) being sued in the o((i%ial %apa%ity and arrayed as +st
respondent as su%h Speaker. 4he Speaker has literally joined the (ray
and had also been represented through %ounsel to de(end his o&n order
parti%ularly in $ie& o( the (a%t that )ala (ides had been attributed
against hi). 4he di((erent argu)ents represented through di((erent
%ounsel &ere on issues o( ;i< the eFtent o( judi%ial re$ie& that is
per)issible (or the de%ision rendered by the Speaker and the li)it o(
i))unity to SpeakerCs de%isionJ ;ii< the (a%ts at issue na)ely o( &hether
H"C ;BL< had )erged &ith ?*C and the e((e%t o( the dee)ing pro$isions
in para -;/< o( the 4enth S%hedule that )ade an in(eren%e possible &hen
)e)bers o( house o( not less than //0rd o( the legislati$e party had
agreed to su%h )erger, $iA., that )erger o( the original politi%al party
had taken pla%e, ;iii< the burden o( proo( that ho& the )erger o( the
original politi%al party &as to be established and ;i$< the eFisten%e or
other&ise o( the )ala (ides o( the Speaker. 4hese entire propositions
ste) (ro) judi%ial pre%edents already a$ailable on the subje%t and
dis%ourses undertaken in this %ase %hart no ne& path but atte)pt only
to (it the %ase into the la& already laid do&n.
(i) The extent of judicial review and the limit of
immunity to Speakers decision
3. 4he eFtent o( judi%ial re$ie& literally sets do&n the
boundaries &ithin &hi%h this de%ision %ould tra$erse. ?n !a"#it Sin"h Vs.
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CWP No.2900 of 2013 -;-
State o$ Haryana and others %200&' 11 S 1, the Supre)e Court &as
eFa)ining the de%ision o( Speaker to dis9uali(y a )e)ber (or de(e%tion
and the re9uire)ent o( %o)plian%e o( prin%iples o( natural justi%e in
su%h %ase. 4he Supre)e Court held in the de%ision that pro%eedings
be(ore the Speaker, &hi%h is also a 4ribunal albeit o( a di((erent nature,
ought to %ondu%t the) in a (air )anner and by %o)plying &ith the
prin%iples o( natural justi%e. Sh. !.L. Sarin, Senior #d$o%ate read out
and ? reprodu%e the SpeakerEs pre8e)inent position as outlined in the
(ollo&ing &ords8
Be(ore parting, another aspe%t urged be(ore us deser$es to
be %onsidered. Ho&e$er, at the outset, &e do &ish to state
that the Speaker enjoys a $ery high status and position o(
great respe%t and estee) in the Parlia)entary 4raditions.
He, being the $ery e)bodi)ent o( propriety and
i)partiality, has been assigned the (un%tion to de%ide
&hether a )e)ber has in%urred dis9uali(i%ation or not. ?n
Kihoto Hollohan's judg)ent $arious great Parlia)entarians
ha$e been noti%ed pointing out the %on(iden%e in the
i)partiality o( the Speaker and he being abo$e all parties or
politi%al %onsiderations. 4he High o((i%e o( the Speaker has
been %onsidered as one o( the grounds (or upholding the
%onstitutional $alidity o( the 4enth S%hedule in Kihoto
Hollohan's case.
,. ?n Kihoto Hollohan Vs. (a)hillhu 1**2 Supp %2' S &+1,
the )ajority $ie& &as that e$en a (inality %lause pro$ided under 4enth
S%hedule o( the Constitution to the de%ision o( the Speaker did not
eF%lude judi%ial re$ie& but it shall be li)ited to 9uestion o(
jurisdi%tional errors based on un%onstitutionality, )ala (ides, ultra $ires,
$iolation o( prin%iples o( natural justi%e and per$ersity. 4he Supre)e
Court ruled, per )ajority8
?n spite o( (inality %lause, it is open to the Court to
eFa)ine &hether the a%tion o( the authority under
%hallenge is ultra $ires the po&ers %on(erred on the said
party. Su%h an a%tion %an be ultra $ires (or the reason that
it is in %ontra$ention o( a )andatory pro$ision o( the la& PANKAJ KUMAR
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%on(erring on the authority the po&er to take su%h an
a%tion. ?t &ould also be ultra $ires the po&ers %on(erred on
the authority i( it is $itiated by )ala (ides or is %olourable
eFer%ise o( po&er based on eFtraneous and irrele$ant
%onsideration.@
1hile eFer%ising the %ertiorari jurisdi%tion, the Supre)e Court (urther
obser$ed that,
=Courts ha$e applied the test o( &hether the i)pugned
a%tion (alls &ithin the jurisdi%tion o( the authority taking
the a%tion or it (alls outside su%h jurisdi%tion. #n ouster
%lause %on(ines judi%ial re$ie& in respe%t o( a%tions (alling
outside the jurisdi%tion o( the authority taking su%h a%tion
but pre%ludes %hallenge to su%h a%tion on the ground o( an
error %o))itted in the eFer%ise o( jurisdi%tion $ested in the
authority be%ause su%h an a%tion %annot be said to be an
a%tion &ithout jurisdi%tion. #n ouster %lause atta%hes
(inality to deter)ination, there(ore, does oust the
%ertiorari to so)e eFtent and it &ill be e((e%ti$e in ousting
the po&ers o( the Court to re$ie& the de%ision o( an
in(erior 4ribunal by %ertiorari i( the in(erior 4ribunal has
not a%ted &ithout jurisdi%tion and has )erely )ade error o(
la& &hi%h does not a((e%t its jurisdi%tion and i( this de%ision
is not a nullity (or so)e reason su%h as brea%h o( rule o(
natural justi%e.@
4his judg)ent is also ho)e to a proposition that likens o((i%e o( Speaker
that adjudi%ates under Paragraph 5 to a 4ribunal. 4he Supre)e Court
ruled by a )ajority8
#ll tribunals are not %ourts, though all Courts are
4ribunalsK. 4he &ord KCourtsK is used to designate those
4ribunals &hi%h are set up in an organiAed State (or the
#d)inistration o( "usti%e. By #d)inistration o( justi%e is
)eant the eFer%ise o( judi%ial po&er o( the State to
)aintain and uphold rights and to punish K&rongsK.
1hene$er there is an in(ringe)ent o( a right or an injury,
the Courts are there to restore the vinculum juris, &hi%h is
disturbed. 1here there is a lis8an a((ir)ation by one party
and denial by another8and the dispute ne%essarily in$ol$es a
de%ision on the rights and obligations o( the parties to it
and the authority is %alled upon to de%ide it, there is an
eFer%ise o( judi%ial po&er. 4hat authority is %alled a
4ribunal, i( it does not ha$e all the trappings o( a Court.@
'etailing &ith the %ontours o( judi%ial a%ti$ity that %an engage in
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CWP No.2900 of 2013 -10-
appraising the SpeakerEs reasonings %o)prised in the order, the Supre)e
Court did noti%e so)e ele)ent o( subje%ti$ity that is in$ariably
in$ol$ed
4hough there are %ertain side8e((e%ts and (all8out &hi%h
)ight a((e%t and hurt e$en honest dissenters and
%ons%ientious obje%tors, these are the usual plus and )inus
o( all areas o( eFperi)ental legislation. ?n these areas the
distin%tion bet&een &hat is %onstitutionally per)issible and
&hat is outside it is )arked by a LhaAy gray8lineE and it is
the CourtEs duty to identi(y, Kdarken and deepenK the
de)ar%ating line o( %onstitutionality, an ele)ent o( "udgesE
o&n per%eptions o( the %onstitutional ideals ine$itably
parti%ipate. 4here is no single lit)us test o(
%onstitutionality. #ny suggested sure de%isi$e test, )ight
a(ter all (urnish a Ktransitory delusion o( %ertitudeK &here
the K%o)pleFities o( the strands in the &eb o(
%onstitutionality &hi%h the "udge )ust alone disentangleK
do not lend the)sel$es to easy and sure (or)ulations one
&ay or the other. ?t is here that it be%o)es di((i%ult to
re(ute the ine$itable legislati$e ele)ent in all %onstitutional
adjudi%ations.@
6. 4he learned Senior Counsel Sh. Raji$ #t)a Ra) relied on
Ra#endra Sin"h Rana and others Vs. S,a-i .rasad /aurya and
others %2000' 1 S 200 that )akes re(eren%e to #rt +6+;/< and the
eFtent o( i))unity that the SpeakerCs de%isions enjoy. #rti%le +6+;/<
states as =a person shall be dis9uali(ied (or being a )e)ber o( the
Legislati$e #sse)bly or Legislati$e Coun%il o( a State i( he is so
dis9uali(ied under the 4enth S%hedule.@ 4he de%ision, &hi%h a Speaker
takes, para ,;0< states, shall be &ithout prejudi%e to the pro$isions o(
#rti%le +:2 or, as the %ase )ay be, #rti%le +6- or to any other po&er
&hi%h he )ay ha$e under the Constitution. #rti%le +:2 re(ers to the
po&er, pri$ileges et%. o( the Houses o( Parlia)ent and o( the )e)bers
and %o))ittees thereo( &hi%h is not i))ediately rele$ant to us. 4o our
purpose #rti%le +6- is signi(i%ant and the sa)e is reprodu%ed as under8
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CWP No.2900 of 2013 -11-
19%. Po<3#= 43">"/0#= t!= of t+ Ho,# of )0"#/at,3#
a$6 of t+ 55-3# a$6 !o55"tt# t+3of- ;+< Subje%t
to the pro$isions o( this Constitution and to the rules and
standing orders regulating the pro%edure o( the Legislature,
there shall be (reedo) o( spee%h in the Legislature o( e$ery
State.
;/< *o )e)ber o( the Legislature o( a State shall be liable
to any pro%eedings in any %ourt in respe%t o( anything said
or any $ote gi$en by hi) in the Legislature or any
%o))ittee thereo(, and no person shall be so liable in
respe%t o( the publi%ation by or under the authority o( a
House o( su%h a Legislature o( any report, paper, $otes or
pro%eedings.
;0< ?n other respe%ts, the po&ers, pri$ileges and i))unities
o( a House o( the Legislature o( a State, and o( the )e)bers
and the %o))ittees o( a House o( su%h Legislature, shall be
su%h as )ay (ro) ti)e to ti)e be de(ined by the Legislature
by la&, and, until so de(ined, shall be those o( that House
and o( its )e)bers and %o))ittees i))ediately be(ore the
%o)ing into (or%e o( Se%tion /5 o( the Constitution (orty
(ourth #)end)ent #%t, +63,.
FFFF FFFF FFFF FFFF
+:. ?( these pro$isions are %ited to suggest that the a%tions o(
the Speaker %annot be put to %hallenge and they enjoyed an absolute
i))unity, it is %learly &rong in the proposition &hi%h &e ha$e already
eFtra%ted that the Speaker a%ting under 4enth S%hedule a%ts as a
4ribunal. 4he re(eren%e to #rti%le +6- in Paragraph , enjoins that the
po&er o( the Speaker shall be dire%ted to (ra)e appropriate rules (or
gi$ing e((e%t to the pro$isions. Clause ;0< deals &ith the po&ers o( the
Speaker to dire%t that any &ill(ul %ontra$ention by any person o( the
rules %ould be dealt &ith in the )anner pro$ided (or brea%h o( pri$ilege
o( the House. 4his has nothing to do &ith the nature o( (un%tion &hi%h a
Speaker &ill eFer%ise &hile adjudging the dis9uali(i%ation under
Paragraph - o( the 4enth S%hedule. ?t is, on the other hand, the )anner
o( punish)ent that %ould be handed do&n (or any &ill(ul %ontra$ention
by any person. 4he pri$ileges &hi%h the Speaker &ould enjoy under
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#rti%le +6- %annot be seen in the %onteFt o( a judi%ial re$ie& that is
per)issible (or his position. 4he point in the (irst instan%e is &hether
the Speaker had ade9uate )aterial (or i))ediately a%%epting the %ase
o( )erger.
(ii) actual consideration of the contentious issue of
mer!er in the li!ht of interpretation of "ara #($) of
Sch % of the &onstitution
++. 4he task )ust, there(ore, be to sta$e %lear o(( the tangled
&eb o( the %ir%u)stan%es that ga$e pla%e to 2 o( the )e)bers s&it%hing
loyalty to the single largest party in the asse)bly under a %lai) that the
party to &hi%h they belonged had )erged &ith the largest party. ?n this
)ust %ontain the interpretations o( Paragraph - to eFa)ine &hether the
a%tion resulted in dis9uali(i%ation or it &as sa$ed by a legiti)ate )erger
o( the party. Sin%e the %lai) to )erger &as brought through a %hallenge
by a person %lai)ing to be the President o( the said party, it &ould
re9uire to be seen &hether the SpeakerEs original de%ision (ell outside
the %onstitutional )andate o( &hat &as re9uired to be eFa)ined and
&hether there had been any (ailure in su%h an adjudi%atory pro%ess to
&hate$er )odi%u) o( judi%ial appli%ation o( )ind &as re9uired in su%h a
pro%ess. Sin%e )ala (ides are attributed as $itiating the ulti)ate order,
e$en apart (ro) eFa)ining &hether there had been a brea%h o( the
%onstitutional )andate, the appraisal shall be &hether the Speaker &as
hi)sel( spirited by )ala (ides in taking the de%ision &hi%h is i)pugned
in this &rit petition. 4he )ala (ides is not o( the (irst de%ision rendered
on :6.++./::6 but in the de%ision o( the Speaker eFer%ising the po&er o(
jurisdi%tion on a %hallenge under Paragraph 5 o( the 4enth S%hedule o(
the Constitution. ?n the &rit petition in C1P *o.+-+65 o( /:+:, the
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petitioner %a)e to the Court i)pleading also the earlier Speaker &ho
took a de%ision on :6.++./::6 na)ely Sh. Har)ohinder Singh Chatha but
during the %ourse o( pro%eedings, the %ounsel &as reported to ha$e
)ade a state)ent that he &as gi$ing up his plea on )ala (ides. 4he
ulti)ate de%ision a(ter the adjudi%atory pro%ess &as rendered by Sh.
Kuldeep Shar)a, &ho is arrayed as the /nd respondent, against &ho)
there is a (resh ground o( )ala (ides attributed.
(a) 'esults in the assem(ly elections) $**+
+/. Dirst to the (a%tual details o( the %ir%u)stan%es &hen the
de%ision o( )erger &as %o))uni%ated by the respondents *o.0 to 5
initially and the 3th respondent, a &hile later 4he State o( Haryana
&ent to a publi% poll (or ele%tion o( !e)bers o( Legislati$e #sse)bly to
6: seats. 4he petitionerEs party H"C ;BL< &as reported to ha$e %ontested
(ro) ,, %onstituen%ies out o( total 6:. 4he (inal tally in the asse)bly
&as
?*C -:
?*L' 0+
H"C ;BL< 5
B"P -
BSP +
S#' +
?ndependents 3
Tota/ 90
(() The initial parleys) as admitted (y the petitioner
+0. ?t %an be noti%ed that the party &ith the largest tally &as
still (i$e short o( the )ajority that &as re9uired in the house. 4hey
needed desperately persons to support the) and ad)ittedly there had
been so)e %onsultations &hi%h ?*C had &ith H"C ;BL<. ?n page +,3 o(
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CWP No.2900 of 2013 -1%-
the (ile that %ontains the eFtra%t o( e$iden%e gi$en by the petitioner in
the en9uiry be(ore the Speaker, the 9uestion posed to the petitioner
&as &hether he &as negotiating &ith the Congress Party (or a )erger to
&hi%h he had ans&ered
Mes, ? &as negotiating &ith the Congress Party but there
&as no negotiation on de%ision o( )erger &ith any party (or
that )atter at any point o( ti)e.@
Durther the 9uestion at page +,, &as
'id you )eet the Chie( !inister Haryana separately be(ore
the $ote o( %on(iden%e in /::67@
4he ans&er to the 9uestion &as =Mes, ? )et the Chie(
!inister@.....
1hat &as transpired bet&een you and the Chie( !inister in
one to one )eeting be(ore the $ote o( %on(iden%e )eeting7
;si%<.
?t &as one to one )eeting bet&een )e and Sh. Bhupinder
Singh Hooda, Chie( !inister and ? a) not %onstrained and
not ready to tell you &hat transpired bet&een us.@ ;si%<
Durther in the %ross8eFa)ination, he had also stated that
4he H"C ;BL< had authoriAed )e to talk to the Chie(
!inister prior to the $ote o( %on(iden%e )otion in the
asse)bly and they had gi$en )e authority to dis%uss all the
issues &ith hi) and ha$ing been ar)ed &ith su%h a
resolution, ? had gone to the Chie( !inister to ha$e a one
to one )eeting to dis%uss all issues.@
4his &ould surely sho& that there had been so)e %onsultations but at
e$ery ti)e in the %ross8eFa)ination the petitioner had denied that
there &as any talk o( )erger. 4he a%tual dates o( )eetings &ith the
Chie( !inister had not been eli%ited but the ans&ers &ere only to the
eFtent that he had his )eeting &ith the Chie( !inister prior to the $ote
o( %on(iden%e.
(c) The letter alle!edly si!nifyin! mer!er and the
minutes precedin! it
+-. 4he (irst )ajor politi%al a%ti$ity o( re%koning &ith the
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asse)bly pre%in%ts &as on /,.+:./::6 &hen the (irst session o( the
Vidhan Sabha &as held. #ll siF !L#s o( H"C ;BL< in%luding the petitioner
parti%ipated in the session and also took the) as !L#s o( H"C ;BL<.
Seats had been separately allotted to the). 4he neFt )ost signi(i%ant
a%ti$ity &as on :6.++./::6 &hen the letter o( respondent *os.0 to 5 had
been deli$ered to the Speaker &hi%h reads as under8
# de%ision has been taken to )erge Haryana "anhit
Congress ;BL< party &ith the ?ndian *ational Congress Party
in ter)s o( the pro$isions %ontained in para - o( the 4enth
S%hedule o( the Constitution o( ?ndia. 4he de%ision in this
regard is atta%hed here&ith. #ll the re9uire)ents o( )erger
in ter)s o( the abo$e said %onstitutional pro$isions ha$e
been (ul(illed &hile taking the de%ision. 4hus, you are
re9uested to a%%ept the )erger o( Haryana "anhit Congress
;BL< &ith ?ndian *ational Congress and re%ogniAe the
appli%ant legislators as )e)bers o( the ?ndian *ational
Congress in the Haryana Vidhan Sabha.@
4he )inutes o( the )eeting &hi%h this letter had a%%o)panied %ould
also re9uire to be eFtra%ted, (or, it is these resolutions that purport to
legiti)atiAe the legislatorsE a%tion (or the shi(t in loyalties to ?*C.
# )eeting o( the legislators o( Haryana "anhit Congress
;BL< Party ele%ted to the +/th Haryana Legislati$e #sse)bly
&as held on :6.++./::6 to %onsider and de%ide )erger o(
original Haryana "anhit Congress ;BL< party &ith ?ndian
*ational Congress Party in ter)s o( para - o( the 4enth
S%hedule o( the Constitution o( ?ndia. ?n this )eeting, the
re9uisite nu)ber o( the )e)bers o( the Haryana "anhit
Congress ;BL< Legislature Party na)ely S/Shri Satpal, !L#,
'adri825, Vinod Bhayana, !L#, Hansi82:, *arender Singh,
!L#, *arnaul83: and >ile Ra) Cho%hra, !L#, #ssandh8/0,
ha$e agreed to )erge Haryana "anhit Congress ;BL< Party
&ith ?ndian *ational Congress Party. ?t has also been
de%ided to )ake an appropriate appli%ation to the HonEble
Speaker, Haryana Vidhan Sabha (or re%ogniAing the
undersigned )e)bers as the !e)bers o( ?ndian *ational
Congress Party in the Haryana Vidhan Sabha.@;underlining
)ine<
(d) actors that could have !one into reckonin! for the
Speaker
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+2. 4he a%tion o( the speaker &hi%h &as put to %hallenge on +-
appli%ations that had been (iled by the petitioner and others %a)e on
the sa)e day on :6.++./::6. #t that ti)e e$idently all that the Speaker
had at his %o))and &as the letter (ro) the - legislators &ith the
resolution o( the )inutes o( the )eeting o( the legislati$e party held on
:6.++./::6. 4he SpeakerEs satis(a%tion &as, there(ore, pinned &holly to
&hat this order %ontained. 4he order &ould re9uire to be, there(ore,
reprodu%ed o( &hat &ent into re%koning8
....? ha$e %onsidered the appli%ation along &ith the
a%%o)panying de%ision/resolution )erging the Haryana
"anhit Congress ;BL< party &ith ?ndian *ational Congress
Party. ? ha$e perused the rele$ant pro$isions o( Constitution
o( ?ndia %ontained in the 4enth S%hedule thereo(. ? a) o(
the %onsidered opinion that the appli%ation deser$es
a%%eptan%e in ter)s o( pro$isions o( the Constitution o(
?ndia. ? ha$e also satis(ied )ysel( &ith regard to the identity
o( the appli%ants as also their (ree &ill. Leader o( Congress
Legislature Party, Ch. Bhupinder Singh Hooda and President
HPCC, Shri Phool Chand !ullana ha$e %o))uni%ated to )e
in &riting a%%epting the )erger.
?, there(ore, hereby a%%ept the )erger o( Haryana "anhit
Congress ;BL< Party &ith ?ndian *ational Congress Party &ith
i))ediate e((e%t in ter)s o( 4enth S%hedule o( Constitution
o( ?ndia. Conse9uently, all o( the abo$e na)ed (our
legislators Shri Satpal, !L#, 'adri825, Vinod Bhayana, !L#,
Hansi82:, *arender Singh, !L#, *arnaul83: and >ile Ra)
Cho%hra, !L#, #ssandh8/0 &ill be hen%e(orth re%ogniAed as
legislators o( ?ndian *ational Congress Party in the Haryana
Vidhan Sabha.@
(e) &ontention on (ehalf of the petitioner, Speakers
order hasty and without any (asis,
+5. 4he &hole o( argu)ents &ere on &hat the Speaker &as
eFpe%ted to do &hen an appli%ation is (iled by (our )e)bers o( the
#sse)bly and the 2th one joining soon therea(ter by a &ritten
%o))uni%ation that the original politi%al party had )erged &ith the
?*C. 4he letter itsel( )ade no re(eren%e to any parti%ular date o(
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)eeting. 4he letter also does not indi%ate that the original politi%al
party took the de%ision. #ll that it states is that the de%ision to )erge
had taken pla%e in a%%ordan%e &ith Para - o( the 4enth S%hedule o( the
Constitution. G$en the )inutes o( the )eeting &hi%h &as atta%hed to
the letter )ade re(eren%e only to a )eeting o( the Legislators that &as
said to ha$e been held on :6.++./::6. Here &as a re(eren%e that
)e)bers o( the legislati$e party de%ided the )erger o( original politi%al
party. 1hile the Senior Counsel Sh. Satya Pal "ain &ould argue that i(
(our )e)bers had gi$en a letter in person and stated that they had
de%ided that the original politi%al party has de%ided to )erge, the )ost
logi%al thing (or any Speaker &as to do, &as to undertake an en9uiry by
%alling the President o( the politi%al party to eli%it in(or)ation &hether
the assertion &as %orre%t. 4he Senior Counsel &ould sub)it that rules o(
natural justi%e di%tated su%h a %ourse as laid do&n in Kihoto Hollohen2s
)ase ;supra< that the 4ribunal in its adjudi%atory pro%ess &ould (ollo&
the prin%iples o( natural justi%e. 4he )ost (unda)ental pre%ept o(
natural justi%e is built up on the edi(i%e o( personal hearing and
there(ore, the argu)ent &as that a 9ui%k de%ision taken by the Speaker
on the sa)e day that he &as satis(ied that there had been a )erger &as
not )erely hasty but it &as against the %onstitutional )andate.
(f) 'esponse (y respondents, "ara #($) Sch %) the
!overnin! consideration
+3. Hn this there &as a $ery serious %ontest by ea%h o( the
%ounsel appearing on behal( o( the respondents. Parti%ularly the Senior
Counsel Sh. Sanjee$ Shar)a, &ho &as appearing (or the Speaker, Sh.
Chee)a &ho &as appearing (or the Speaker in person and Sh. Raji$
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#t)a Ra) appearing (or respondent *o.0 &ould argue that a Court &ill
not add to the language o( &hat is %ontained in the Constitution. 4here
&ere t&o aspe%ts to the argu)ent. Hne, there is no noti%e
%onte)plated under the pro$ision to any party be(ore taking any
de%ision and t&o, the )ere letter o( %o))uni%ation by //0rd )e)bers
o( the legislati$e party signi(ying their agree)ent to )erger shall be
dee)ed to be proo( o( the de%ision o( su%h )erger o( the original
politi%al party. Para - o( the S%hedule has no %on%ern &ith &hat takes
pla%e outside the #sse)bly. 4he a%tion o( the Speaker &ill depend
&holly on &hat //0
rd
)e)bers o( the Legislature Party de%lare &ithin
the House. 4o appre%iate these %ontentions, Para - and Para 5 &ould
be the go$erning %onsideration (or the &hole %ase and &ould re9uire a
reprodu%tion8
-. D"#1,a/"f"!at"o$ o$ 03o,$6 of 6f!t"o$ $ot to a44/9 "$
!a# of 5303.- ;+< # )e)ber o( a House shall not be
dis9uali(ied under sub8paragraph ;+< o( paragraph / &here
his original politi%al party )erges &ith another politi%al
party and he %lai)s that he and any other )e)bers o( his
original politi%al party8
;a< ha$e be%o)e )e)bers o( su%h other politi%al party or,
as the %ase )ay be, o( a ne& politi%al party (or)ed by su%h
)ergerJ or
;b< ha$e not a%%epted the )erger and opted to (un%tion as a
separate group, and (ro) the ti)e o( su%h )erger, su%h
other politi%al party or ne& politi%al party or group, as the
%ase )ay be, shall be dee)ed to be the politi%al party to
&hi%h he belongs (or the purposes o( sub8paragraph ;+< o(
paragraph / and to be his original politi%al party (or the
purposes o( this sub8paragraph.
;/< Dor the purposes o( sub8paragraph ;+< o( this paragraph,
the )erger o( the original politi%al party o( a )e)ber o( a
House shall be dee)ed to ha$e taken pla%e i(, and only i(,
not less than t&o8thirds o( the )e)bers o( the legislature
party %on%erned ha$e agreed to su%h )erger.
5. D!"#"o$ o$ 1,#t"o$# a# to 6"#1,a/"f"!at"o$ o$ 03o,$6
of 6f!t"o$.- ;+< ?( any 9uestion arises as to &hether a
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CWP No.2900 of 2013 -19-
)e)ber o( a House has be%o)e subje%t to dis9uali(i%ation
under this S%hedule, the 9uestion shall be re(erred (or the
de%ision o( the Chair)an or, as the %ase )ay be, the
Speaker o( su%h House and his de%ision shall be (inal
Pro$ided that &here the 9uestion &hi%h has arisen is as to
&hether the Chair)an or the Speaker o( a House has
be%o)e subje%t to su%h dis9uali(i%ation, the 9uestion shall
be re(erred (or the de%ision o( su%h )e)ber o( the House as
the House )ay ele%t in this behal( and his de%ision shall be
(inal.
;/< #ll pro%eedings under sub8paragraph ;+< o( this
paragraph in relation to any 9uestion as to dis9uali(i%ation
o( a )e)ber o( a House under this S%hedule shall be
dee)ed to be pro%eedings in Parlia)ent &ithin the )eaning
o( arti%le +// or, as the %ase )ay be, pro%eedings in the
Legislature o( a State &ithin the )eaning o( arti%le /+/.
1. 3indin"4 5ant o$ noti)e to the petitioner be$ore
de)ision is not $atal, but a -issed opportunity $or the
Speaker to )olle)t 6ital e6iden)e
+,. 4he Senior Counsel Sh. Raji$ #t)a Ra) &ould argue that
Para - does not %onte)plate any noti%e to the President o( the politi%al
party that is said to ha$e )erged. Relying on 7ni8ue Butyle 9ube
Industries %.' :td. Vs. 7... 3inan)ial orporation %2003' 2 S %77 ,
he &ould urge that Courts &ill not supply &hat is %ausus o)issus in a
statute. 4he %ounsel &ould also argue that the &rit petition does not
a%tually %hallenge either the letter to the Speaker gi$en by respondent
*os.0 to 5 or the )inutes o( the Haryana "anhit Congress ;BL< legislati$e
party that a%%o)panied that letter #nneFure P8+. Ra#endra Sin"h
Rana and others Vs. S,a-i .rasad /aurya and others %2000' 1 S
200 is a de%ision o( the Supre)e Court that )akes rele$ant the nature
o( en9uiry that the Speaker shall )ake &hen an issue o( split in the
politi%al party or a )erger is asserted by one and denied by another
party. 4he Supre)e Court ruled in para /3 as under8
=%all it a de(en%e or &hate$er, a %lai) under para 0 as it
eFisted prior to its deletion or under para - o( the 4enth
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CWP No.2900 of 2013 -20-
S%hedule are really ans&ers to a prayer (or dis9uali(ying the
)e)ber o( the legislature on the ground o( de(e%tion.......
?n that %onteFt, the Speaker %annot say that he &ill (irst
de%ide &hether there has been a split or )erger as an
authority and therea(ter de%ide the 9uestion &hether
dis9uali(i%ation has been in%urred by the )e)bers, by &ay
o( judi%ial adjudi%ation sitting as a 4ribunal. ?t is part and
par%el o( his jurisdi%tion as a 4ribunal &hile %onsidering a
%lai) (or dis9uali(i%ation o( a )e)ber or )e)bers to
de%ide the 9uestion not only in the %onteFt o( the plea
raised by the %o)plainant but also in the %onteFt o( the
pleas raised by those &ho are sought to be dis9uali(ied that
they ha$e not in%urred the dis9uali(i%ation in $ie& o( a split
in the party or in $ie& o( the )erger.
?ndeed, this judg)ent in a &ay eFposes a %ertain (alla%y &hi%h &as
%ontained in an argu)ent presented by the learned Senior Counsel Sh.
Harbhag&an Singh appearing (or so)e o( the respondents. 4he learned
Senior Counsel sought to underplay the la%oni% order passed by the
Speaker initially a%%epting the )erger on :6.++./::6 si)ply a%ting on
the letter gi$en by (our o( the legislators. He sought to %ontend that the
de%ision that a Speaker )akes is pro$isional and the %orre%tness o( the
de%ision &ould be eFa)ined only &hen a %ontest is brought through an
appli%ation under para 5 o( the 4enth S%hedule. 4his argu)ent is
abje%tly &rong in the light o( the obser$ations )ade by the Supre)e
Court in Ra#endra Sin"h Rana2s )ase re(erred to abo$e.
+6. G$en &hen the Senior Counsel (or the respondents &ere
pointing out that there &as no pro%edure )entioned (or issuan%e o( a
noti%e to the President o( the party, it &as also suggested )ildly that
there &as not e$en proo( that the petitioner &as President o( the party
and any noti%e )ust ha$e been gi$en. 4he learned Senior Counsel
appearing on behal( o( the petitioner &ould point out that this &as at all
ti)es ad)itted %ase and &as ne$er doubted. 4he senior %ounsel &ould
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CWP No.2900 of 2013 -21-
)ake re(eren%e to his o&n earlier &rit petition in C1P *o.+-+6- o( /:+:
&here in para 5 o( the &rit petition, the petitioner has stated that in
the (irst )eeting o( the ne&ly ele%ted )e)bers o( H"C ;BL< on
/0.+:./::6 under his %hair)anship at his residen%e at *e& 'elhi &ere o(
the siF ne&ly ele%ted !L#s belonging to the party, they paid tribute to
Sh. Bhajan Lal and the petitioner (or su%%ess(ully leading the party in
(irst e$er .eneral #sse)bly Gle%tion in /::6 and ele%ted the petitioner
unani)ously as leader o( the legislati$e party o( H"C ;BL<. ?n the reply
(iled by the respondents in the said &rit petition, it &as %ontended that
%ontentions )ade in paragraphs / and 5 are not %ontested. ?( that &as
ad)itted position then e$en in the letter o( the respondents, there
ought to ha$e been a re(eren%e to the de%ision &hi%h the President o(
the party had taken. ?t &as natural that i( he had been a sole dissenter,
e$en his dissent )ust ha$e been re(erred to in the letter. 4here &as no
9uestion o( e$en re%ording a dissent in the )inutes o( the )eeting o(
the legislati$e party, (or, ad)ittedly the )inutes did not re%ord e$en
the presen%e o( the petitioner in the legislati$e party )eeting said to
ha$e taken pla%e on :6.++./::6.
/:. ? a) prepared to go as (ar as to a%%ede to the argu)ent
)ade by the learned Senior Counsel appearing on behal( o( the Speaker
that Paragraph - itsel( does not %onte)plate a noti%e but one &ould
eFpe%t su%h a noti%e to be only eFigent, (or, in the light o( the de%ision
in Ra#endra Sin"h Rana2s %ase ;supra<, the de%ision o( the Speaker to
a%t on the letter &as not )eant to be pro$isional but it &as re(erred to
be a part and par%el o( e$ery i)portant sour%e o( in(or)ation and %o)e
to a de%ision a%%epting or reje%ting the %ase o( )erger. 4he language o(
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CWP No.2900 of 2013 -22-
the )inutes ;#nneFure P8/< o( the legislature party )ade no re(eren%e
to any resolution o( )erger o( the original politi%al party but it had
surprisingly, )erely set out that the legislati$e party )et to %onsider
and de%ide ;on the< )erger o( original Haryana "anhit Congress ;BL<
party &ith ?ndian *ational Congress Party. ?n other &ords, the Speaker
had si)ply no )anner o( kno&ing &hen the original politi%al party had
de%ided on the )erger. He surely )issed an opportunity to eli%it the
ne%essary in(or)ation, apart (ro) looking at the letters gi$en to hi) by
respondents *o.0 to 3.
2. 3indin"4 ;ee-in" pro6ision in para 1%2' )annot be
)on)lusi6e< It -erely pro6ides $or a presu-ption and
o))asions to the Speaker the -anner o$ )olle)tin"
e6iden)e
/+. #ll the respondents &ould join in %horus to %ontend that
Para - ;/< )akes possible su%h a de%ision to be )ade by the Speaker
&ithout looking (or )ore. 4he learned Senior Counsel appearing on
behal( o( the Speaker Sh. Sanjee$ Shar)a &as at pains to point out to
the language e)ployed under Para -;/< that )akes an i))ediate
in(eren%e possible by the (a%t that //0rd o( the )e)bers o( the
legislati$e party had agreed to su%h a )erger. #%%ording to hi), i( (our
)e)bers o( the party had gi$en it in &riting that they had )erged, it
&ould )ean that the )erger o( the original politi%al party o( the
)e)bers o( the house shall be dee)ed to ha$e taken pla%e. ?( the issue
(or the Speaker &as at all ti)es the %onsideration o( the (a%t that //0rd
o( the !e)bers in the legislati$e party had agreed to su%h a )erger, the
original politi%al party &ould also be taken as )erged then there &as
hardly any 9uasi judi%ial (un%tion &hi%h the Speaker &as re9uired to
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per(or). ?t &ould %o)e &ith a )athe)ati%al ease that i( //0rd
)e)bers o( the legislati$e party had agreed to su%h a )erger, the
original politi%al party )ust also be taken as ha$ing )erged. 4he
language in the paragraph %annot be understood thus and ? &ill state the
reasons &hy.
//. Para -;/< )ust be used in the %onteFt o( ho& a Speaker to
&ho) the %o))uni%ation is gi$en &ould start the pro%ess o( taking a
de%ision only i( //0rd o( the )e)bers o( the legislati$e party ha$e
agreed to the )erger. ?( the persons, &ho applied to hi), &ere e$en
less than //0rd in a situation &here they had e$en a%tually de%ided
)erger o( the original politi%al party, the Speaker )ay not be re9uired
to take noti%e o( the sa)e at their instan%e. He is entitled to insist that
till //0rd o( the legislati$e party had a%tually agreed to the )erger,
there &ill be no in(eren%e o( the )erger o( the original politi%al party.
4his pro$ision only )akes possible the Speaker to set the pro%ess )o$ing
(or adjudi%ation o( &hether the )erger as pleaded by the appli%ants
&ould be re9uired to be %onsidered or not. ?t is not as i( the Speaker
&ill not undertake an adjudi%ation at all, i( less than //0rd )e)bers
signi(y their %onsent to the )erger. 4hat &ould still be re9uired to be
done but in su%h a situation the appli%ants are bound to se%ure
appropriate e$iden%e o( the de%ision o( the original politi%al party
regarding )erger. 4here &ill be no auto)ati% presu)ption or dee)ing
in su%h a situation.
/0. ?t is possible e$en under Para -;+<;b< that in spite o( the
original politi%al party de%iding to )erge by a )ajority, i( any one
)e)ber o( the legislati$e party )ay not a%%ept su%h a )erger, he shall
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not still be dis9uali(ied. He is entitled to retain his o&n identity in the
original politi%al party and the identity &ill re)ain (or hi) &ithout
being in any &ay a((e%ted by )erger o( the )ajority de%ision o( the
)e)bers o( the original politi%al party. Hn the other hand, i( the
original politi%al party had taken a de%ision not to )erge, there is no
9uestion o( //0rd o( the )e)bers o( the legislati$e party de%iding to
)erge and )ake possible a dee)ing o( )erger o( the politi%al party
be%ause Para -;/< &ill )ake possible (or dee)ing o( Bsu%h )ergerC o(
the original politi%al party.C ?n other &ords, &ithout the a%tual de%ision
o( the )erger o( the original politi%al party, there %annot be a dee)ing
o( Bsu%h )ergerC. 4he (irst task o( the speaker shall be to go along &ith
the presu)ption o( )erger and look (or %orroborati$e e$iden%e o( su%h
)erger o( the original politi%al party. 4he )ini)u) that the Speaker
shall do &ould be to eli%it details o( the de%ision o( the original politi%al
party. 4he //0rd o( nu)ber o( the legislati$e party )ay the)sel$es
bring to noti%e o( the Speaker proo( o( su%h (a%t or the Speaker shall
engage in so)e en9uiry to eli%it su%h in(or)ation. ?n e((e%t, in )y $ie&,
the de%ision o( the //0rd o( the )e)bers agreeing to the )erger does
not dispense &ith ha$ing to pro$e the a%tual )erger o( original politi%al
party not&ithstanding the dee)ing pro$ision. 4he Speaker is bound to
eFa)ine and eli%it details o( the in(or)ation that the original politi%al
party has a%tually )erged and there &as e$iden%e (or su%h a %ourse. ?( it
&as %on%lusi$e (or the Speaker to pronoun%e on the )erger o( the
original politi%al party by the only (a%t that //0rd o( the )e)bers o( the
legislati$e party ha$e agreed to Bsu%h )erger o( the original politi%al
partyC then it %an lead to absurd situation o( &hen, (or eFa)ple, a lone
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)e)ber o( the legislati$e party &ho represents +::N presen%e in the
asse)bly announ%es a )erger o( the original politi%al party and his
%onsent to su%h a %ourse as re9uiring a )andatory a%%eptan%e (or the
Speaker that the original politi%al party has a%tually )erged. ?t %ould
&ell be that out o( se$eral %ontestants, there &as only one su%%ess(ul
%andidates in the asse)bly and the original politi%al party %ontained
se$eral delegates &ho though not su%%ess(ul &ere entitled to eFer%ise
their de)o%rati% %ontrol &ithin the party and take a de%ision
independently o( ho& the )e)ber o( the legislati$e party took a
de%ision. 4his is )erely to eFplain the pra%ti%al i)possibility o( %asting
the &hole &eight on the eFpression o( %onsent to )erger by the
)e)bers o( the legislati$e party (or an in(eren%e that the original
politi%al party has also )erged.
(a) "recedents on "aras $ to - of Sch % examined
/-. 4here &as (airly large $olu)e o( %ase la&s that the parties
relied on and )ost o( the ti)e &as dealt on the eFa)ination o( the
de%isions that ha$e appeared under para -;/<. ?t should, there(ore, be
the ti)e to turn into the rele$ant la&s (or ho& para -;/< %ould be
understood. #ll the %ounsel (or the respondents deri$e their strength
(ro) the argu)ents on the e((e%t o( Para - as interpreted by this Court
through a Dull Ben%h de%ision in Bal#it Sin"h Bhuller and another Vs.
Hon. Speaker .un#ab Vidhan Sabha, .un#ab Vidhan Sabha and others
Vol.=VII %1**0>3' .:R 3&0. ?t &as a %ase o( lone )e)ber o( a
Co))unist Party ;OCP?< &ho de%ided to )erge &ith the Congress8? party
in the State Legislature. Hn a letter gi$en by hi) that there had been a
)erger o( the Co))unist Party &ith the Congress Party, the Speaker
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a%%eded to the letter and allo&ed the )erger o( the Co))unist Party
&ith Congress8? legislati$e party. 4he Se%retary o( Punjab State
Co))ittee o( OCP? approa%hed the Speaker o( the asse)bly that
original politi%al party OCP? ne$er passed any resolution &ith regard to
the )erger and that the lone legislati$e party )e)ber had joined
Congress party on his o&n and that he had in%urred a dis9uali(i%ation to
%ontinue as a )e)ber o( the legislati$e asse)bly be%ause o( his
de(e%tion. #(ter setting out the de(initions o( legislature party, a Dull
Ben%h o( this Court held that Paragraph / pro$ided (or dis9uali(i%ation
on the ground o( de(e%tion and a%%ording to it, a )e)ber o( the House
belonging to any politi%al party shall be dis9uali(ied (ro) being a
)e)ber o( the house i( he had $oluntarily gi$en up his )e)bership o(
su%h politi%al party or i( he $oted or abstained (ro) $oting in su%h house
%ontrary to any dire%tion issued by the politi%al party to &hi%h he
belonged. 4he Dull Ben%h held that Paragraphs 0 and - &ere in the
nature o( eF%eptions to Paragraph /. Para 0 sa$ed the )e)ber o( a
legislati$e party (ro) in%urring dis9uali(i%ation i( there &as a split in the
original party, &hile Para - sa$ed a )e)ber (ro) being dis9uali(ied i(
his original politi%al party )erged &ith another politi%al party. 4aking
the logi% to the (arthest, the Dull ben%h held on &hat &as i)portant and
&hat support &holly the %ontention o( the respondents as (ound in para
3 as (ollo&s8
3. # situation )ay arise &here there )ay be a )erger o(
t&o politi%al parties at the national le$el but at the State
le$el i( t&o8thirds o( the )e)bers o( the Legislature party
o( the politi%al party do not agree (or su%h a )erger then it
%annot be taken as a )erger be%ause o( the pro$ision
%ontained in sub paragraph / o( paragraph - as it re9uires
that t&o8thirds o( the )e)bers o( the Legislati$e party )ust
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agree to su%h )erger. 4hus, it is %lear &hile in%orporating
sub paragraph /, the Parlia)ent intended that Legislature
party has to be treated separately (ro) the politi%al party
(or the purpose o( seeing &hether there is a )erger o( the
politi%al party. 4his aspe%t has to be de%ided keeping in
$ie& o( the (a%t that +:th S%hedule &as added in the
Constitution o( ?ndia &ith an intention to pre$ent an ele%ted
)e)ber o( Parlia)ent or State Legislature (ro) %rossing the
(loor in the House and to pre$ent politi%al de(e%tion (or
eFtraneous %onsiderations other than an honest dissent. ?(
t&o8thirds )e)bers o( a Legislature party o( a politi%al
party agree to )erge &ith another politi%al party then it
should be taken that there &as a )erger (or the purpose o(
paragraph -. 4he intention o( the parlia)ent &as %lear in
this regard by the &ords used in sub paragraph / o(
paragraph - in its &isdo). ?n sub paragraph / o( paragraph -
the &ords used are the )erger o( the original politi%al party
o( a )e)ber o( the House Kshall be dee)ed to ha$e taken
pla%e.K 4he &ords Kshall be dee)ed to ha$e taken pla%eK
%reates a legal (i%tion by in%orporating a dee)ing
pro$ision......@
/2. 4he e((e%t o( the Dull Ben%h de%ision, there(ore, &ould be
that Clause -;/< &hi%h pro$ides (or a (i%tion by introdu%ing a dee)ing
%lause &ould )ake irrele$ant any (urther en9uiry. ?t is per(e%tly possible
that a %andidate &ho represented //0rd o( the legislati$e party sa$ed
hi)sel( o( the dis9uali(i%ation by the only (a%t that he or a group
representing //0rd o( the )e)bers o( the legislati$e party de%laring
that they agreed to the )erger by the original politi%al party and the
proo( o( su%h )erger is dee)ed by the Speaker a%ting on the
representation. ?( it ho&e$er, turns out that the representation &as not
%orre%t and the //0rd )e)bers had eFpressed &hat &as against the
de%ision o( the original politi%al party, say it did not (a$our )erger,
then the dee)ing has per(or%e to be re$ersed. 4he language o( para -
;/< presu)es a de%ision o( )erger by the original politi%al party and the
//0rd )e)bers agreeing to su%h )erger. ?( there &as no )erger
outside, there &as no 9uestion o( sa$ing the dis9uali(i%ation (or the
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)e)bers o( the legislature party. But that &as not ho& the Dull Ben%h
interpreted the pro$ision. 4he e((e%t to the de%ision (inds eFpressed in
para ++ &here the Dull Ben%h ruled that the /nd respondent being the
lone )e)ber o( the OCP? de%ided to )erge &ith Congress8? party in the
State Legislature his %ase s9uarely (ell &ithin the s%ope and a)bit o( sub
paragraph / o( paragraph -. 4he Dull Ben%h &ent as (ar as to state in the
penulti)ate paragraph that pro%eedings be(ore the Speaker &ere
prote%ted (ro) being 9uestioned or %hallenged on the ground o( alleged
irregularity o( pro%edure under sub8paragraph / o( paragraph 5 to 4enth
S%hedule read &ith #rti%le /+/;+< o( the Constitution and purported to
apply &hat &as stated by the Supre)e Court in Kihoto Hollohon Vs.
(a)hillu ;supra< that these pro$isions attra%t an i))unity (ro) doing
)ere irregularities o( pro%edure and i( the Speaker had to interpret sub
para / o( para -, it did not in$ol$e any deter)ination o( disputed (a%t.
?n (a%t, it is pre%isely a disputed 9uestion that al&ays %o)es (or hearing
in an adjudi%ation under para 5. 4he strength o( reasoning o( a Dull
Ben%h, ? &ould, under nor)al %ir%u)stan%es, ha$e no po&er to 9uestion
but this reasoning (ound re(le%ted in yet another judg)ent deli$ered by
the sa)e Dull Ben%h on the sa)e day in /adan /ohan /ittal, /:A Vs.
9he Speaker, .un#ab Vidhan Sabha, handi"arh and others
Vol.=VII %1**0>3' .:R 301 &as brought under judi%ial s%rutiny by the
Supre)e Court in !a"#it Sin"h Vs. State o$ Haryana and others %200&'
11 S 1 and ad$ersely %o))ented. ?t should be%o)e ne%essary to
eFa)ine the (a%ts and the de%ision in .adan .ohan .ittal (supra)/
/5. ?n the abo$e latter %ase, the respondents *o.0 and -, &ho
had been set up as %andidates by Bhartiya "anta Party and ele%ted
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a)ong (our other )e)bers o( the sa)e party, de%ided to lea$e B"P and
joined Congress8?. ?t &as stated that the -th respondent &as e$en
eFpelled (ro) the pri)ary )e)bership o( the B"P (or anti8party a%ti$ity
and the sa)e &as also inti)ated to the Speaker o( the legislati$e
asse)bly. 4he petitioner, &ho &as a leader o( the original politi%al
party in(or)ed the Speaker that there &as no split in the party as
%lai)ed by respondents *o.0 and -. 4he petitioner also sent a letter to
the Speaker to de%lare respondents *o.0 and - as dis9uali(ied. 1ithout
gi$ing any opportunity to lead any e$iden%e or personal hearing to the
petitioner, the 'eputy Speaker passed the i)pugned order on
:5.:2.+660 holding that there &as split in the party and the original
party o( B"P ha$ing siF seats &as %learly seen to be split &ith
respondents *o.0 and - %onstituting +/0rd o( the )e)bers o( legislati$e
party de%iding to join Congress8? and there(ore, they &ere not
dis9uali(ied in $ie& o( para 0. 4he Dull Ben%h applied the sa)e logi% as
&hat &as eFpounded in the other de%ision in Bal#it Sin"h Bhuller2s )ase
re(erred to abo$e and held that the %andidates &ere sa(e.
/3. 4he de%isions eFe)pli(y a typi%al situation &here the Ben%h
&as %o)(ortable about holding that there need not be a )erger o( t&o
politi%al parties at national le$el but at the State le$el i( //0rd )e)bers
o( the legislati$e party agreed (or su%h a )erger then it %ould be taken
as a )erger be%ause o( the pro$isions %ontained in sub para /. H( the
eFtre)e illustration o( &hat &e ha$e gi$en about a lone )e)ber &as
s9uarely applied here that the Speaker &as not re9uired to see anything
beyond &hether the persons agreeing (or )erger %onstituted //0rd o(
the legislati$e party or not. ?( he or they did, there &as a )erger (or the
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CWP No.2900 of 2013 -30-
purpose o( S%hedule 4en, no )atter that there &as no )erger o( the
original politi%al party outside. 4he learned Senior Counsel (or the
petitioner &ould, there(ore, %on(ront the situation dire%tly &ith &hat
had typi%ally happened in this %ase. 4he Gle%tion Co))ission o( ?ndia
did not re%ogniAe the )erger o( H"C ;BL< &ith ?*C and su%h a plea )ade
be(ore it &as reje%ted. 1e ha$e already seen that the de%ision o( CGC
not to re%ogniAe )erger had nothing to do &ith SpeakerEs duty as
enjoined under S%hedule +:. 4his de%ision o( the Speaker &as )ade to
be e((e%ti$e only (or the purpose o( S%hedule +: and it %annot alter the
situation as (ar as the Gle%tion Co))ission &as %on%erned or $i%e $ersa.
/,. 4he learned Senior Counsel Sh. Sanjee$ Shar)a &ould,
there(ore, argue that a Speaker &ho enjoys an i))unity and takes a
de%ision, does so on the strength o( &hat para -;/< &ith a dee)ing
pro$ision that )akes possible (or hi) to in(er that there had been
a%tually a )erger o( the original politi%al party &ith ?*C. 4he Senior
Counsel (or the petitioner pointed out to a de%ision o( *agaland
Legislati$e #sse)bly rendered on /2.:,./:+- &hen 0 )e)bers o( the
House out o( - )e)bers belonging to Congress Party had de%lared that
the original politi%al party had )erged &ith Bharatiya "anata Party.
4hey hoped to sail through the dee)ing pro$ision under Para -;/<. 4he
Speaker, ho&e$er, dis9uali(ied the )e)bers holding that =upon en9uiry
as re9uired under la&@, he (ound that their original politi%al party had
not )erged &ith B"P on the date o( their %lai). G$en this order &ould
be seen to be bad i( &e apply the argu)entati$e relian%e on Para -;/<
but Sh. Chee)a, Senior Counsel (or the /
nd
respondent &ill underplay
the sa)e by %ontending that the Speaker had not re(erred to the Dull
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CWP No.2900 of 2013 -31-
Ben%h de%ision o( the Punjab and Haryana High Court in Bal#it Sin"h
Bhuller.
/6. 4he e((e%t o( dee)ing pro$ision &as also %an$assed by Sh.
Raji$ #t)a Ra) re(erring to the de%ision o( the Supre)e Court in ..K.
7nni Vs. ?ir-ala Industries and others %1**0' 2 S 30@. 4he
de%ision said &hile interpreting Hrder /+ Rules ,6 and 6/;/< relating to a
%on(li%t o( the period o( li)itation (or setting aside sale that the
legislature &ould be presu)ed to ha$e )ade no )istake and it intended
&hat it said. ?n 7nion o$ India Vs. Ra#i6 Ku-ar %2003' & S +1&, the
Supre)e Court &as eFplaining the e((e%t o( a dee)ing pro$ision in the
%onteFt o( Rule +: ;/< o( Central Ci$il Ser$i%es ;Classi(i%ation, Control
and #ppeal< Rules, +652 that dee)ing a suspension o( an e)ployee to
ha$e taken pla%e i( he had been taken into judi%ial or poli%e %ustody.
4he Supre)e Court &as holding that i( the e)ployee had been released
(ro) %ustody, the suspension is dee)ed to be i))ediately re$oked and
an order o( suspension subse9uently )ade by re(erring to a person as
ha$ing been taken in %ustody &ould be inoperati$e. 4he Supre)e Court
held that under Rule +: ;/<, an a%tual order o( suspension &as not
re9uired to be passed thereunder. 4hat is dee)ed to ha$e been by the
operation o( legal (i%tion.
0:. 4he relian%e on ..K. 7nni ;supra< and Ra#i6 Ku-ar ;supra<
is (alla%ious be%ause the dee)ing pro$isions do not %o)e &ith ho& su%h
a presu)ption %ould be %hallenged subse9uently. 4he legal (i%tion
ena%ted )akes %o)plete and render unne%essary any (urther
eFa)ination in those %ases. Here &e ha$e Para 5 &hi%h thro&s open the
de%ision to a %hallenge. 4here is no irre$ersibility to the de%ision o( the
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Speaker under Para -, a situation that %annot arise in the pro$ision dealt
&ith in the abo$e t&o %ases. ?( the interpretation o( the Dull Ben%h in
Bal#it Sin"h Bhuller ;supra< still holds the (ield, there %ould be really no
%ontest &hen an appli%ation is (iled under para 5. #ll that a Speaker
&ould be re9uired to do is to see &hether the persons applying to the
Speaker represented //0rd o( the legislature party eFpressing agree)ent
to the )erger o( the original politi%al party &ith another party. ?( the
)athe)ati%al %al%ulation &as %o)plete &hi%h %ould be done in a tri%e,
the pro%eedings %ould %o)e to a stop, (or, the Speaker is not re9uired
to really eFa)ine &hether there is an a%tual )erger o( the original
politi%al party &ith another party. ?t &ould dee) and )ake (inal su%h a
%ase o( )erger i( //0rd o( the )e)bers o( the legislati$e party de%lared
so. #ll this legal &rangling that is spread during the entire span o( (i$e
years &ould re)ain ans&ered by a si)ple )athe)ati%al %al%ulation that
2 out o( 5 persons o( the legislati$e party de%lared that there &as a
)erger &ith the original politi%al party and that %losed all options (or
e$en a person to %o)e &ith an appli%ation under Se%tion 5 and %ontest
su%h a de%ision. G$en at the ti)e &hen a %hallenge &as brought by
)eans o( a &rit petition at the instan%e o( the petitioner that the
Speaker &as not taking up the en9uiry, the Speaker %ould ha$e %losed
options by )erely pointing out to the nu)bers and pre8e)pted any
de%ision o( this %ourt. #ll these eFpansi$e argu)ents on interpretation
o( the $arious pro$isions %ould ha$e been s%uttled by re(eren%e to para -
;/< in the )anner interpreted by the Dull Ben%h. ?( this interpretation
has (ound judi%ial approbation in other %ases (ollo&ing it, ? &ill (ind no
)ore %ause to pronoun%e and de%lare the de%ision o( the Speaker as
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$alid. 4hat shall not be. Here is a reason &hy a sear%hing eFer%ise o( the
legal proposition no& lying e)bedded in other de%isions that ha$e
i)pliedly o$erruled the reasoning %ontained in the Dull Ben%h in 0aljit
Sin!h 0hullar (supra) be%o)es ne%essary.
0+. ?n !a"#it Sin"h Vs. State o$ Haryana and others ;supra<,
the petitioners &ere ele%ted as independent )e)bers and had been
dis9uali(ied under Para /;/< (or ha$ing joined the Congress Party. 4he
Speaker had relied on $ideo re%ording o( inter$ie&s on tele$ision &here
the petitioners had ad)itted and a%kno&ledged joining the Congress
Party, $ideo re%ordings o( parti%ipation in )eetings o( Congress
legislati$e party in the pre)ises o( the legislati$e asse)bly soon a(ter
the inter$ie& and the petitionersE o&n signatures on the CLP pro%eedings
register. 4he Speaker had gi$en an opportunity to gi$e a reply (or a
)otion (or dis9uali(i%ation and instead o( e$en pleading o( ho& the
ad)issions )ade by the) in the $ideo re%orded inter$ie&s &ere
erroneous or that the re%ordings &ere do%tored or inauthenti%, he
%o)plained o( being de%lined the opportunity to &at%h the re%ordings
and adopted a %ourse o( $ague denial and insisting on opportunity to
lead e$iden%e and %ross8eFa)ine the person &ho &ould ha$e obtained
the $ideo re%ordings (ro) the tele$ision %hannels. 4he Speaker denied
su%h an opportunity and the petitioners %o)plained $iolation o(
prin%iples o( natural justi%e. 4he Supre)e Court, &hile eFa)ining the
sa)e, held that persons &ho had (ailed to plead as to ho& the
state)ents attributed to the) &ere erroneous %annot be heard to state
that non8grant o( opportunity to %ross8eFa)ine led to $iolation o(
natural justi%e. 4he Court %autioned that petitioners &ould not be
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per)itted to sit on the (en%e, take $ague pleas and )ake general
denials in pro%eedings under S%hedule +:. 4he Supre)e Court allo&ed
(or su((i%ient (leFibilities in rules and pro%edure (or the Speaker to
pre$ail and (ound that the de%ision o( the Speaker not to allo& (or
additional ti)e sought (or by the petitioners to (ile a reply to be
justi(ied and e$en the relian%e o( the $ideo %lippings by the Speaker &as
(ound to be su((i%ient in the light o( Se%tion 52B o( the ?ndian G$iden%e
#%t, +,3/. G$en a personal kno&ledge o( the Speaker o( ha$ing seen and
heard the )e)bers on $arious o%%asions in sessions o( the house %ould
not be taken as illegal, (or, Speaker &as the only authority &ho %ould
de%ide on su%h dis9uali(i%ation. Dinding a pe%uliar situation that a
Speaker %ould not trans(er the %ase to so)e other 4ribunal, the sa)e
&ay that a Court %ould do i( a "udge %o)es (ro) a personal kno&ledge,
the Supre)e Court applied do%trine o( ne%essity to hold that the
Speaker %annot do &hat a Court %ould ha$e done but &ould still take a
de%ision and apply e$en the in(or)ation se%ured on personal kno&ledge
as not $iolati$e o( prin%iples o( natural justi%e.
0/. 4he Supre)e Court dealt at length the obje%ts (or ena%ting
the de(e%tion la& na)ely to %urb the )ena%e o( de(e%tion. 'espite
de(e%tion, a )e)ber %annot be per)itted to get a&ay &ith it &ithout
(a%ing the %onse9uen%es o( su%h de(e%tion only be%ause o( )ere
te%hni%alities. ?n para /6 o( the judg)ent in 1a!jit Sin!h, it is
obser$ed8
=?t is essential to bear in )ind the obje%ts (or ena%ting the
de(e%tion la&, na)ely to %urb the )ena%e o( de(e%tion.
'espite de(e%tion a )e)ber %annot be per)itted to get
a&ay &ith it &ithout (a%ing the %onse9uen%es o( su%h
de(e%tion only be%ause o( )ere te%hni%alities. 4he
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CWP No.2900 of 2013 -37-
substan%e and spirit o( la& are the guiding (a%tors to de%ide
&hether an ele%ted )e)ber has joined a politi%al party or
not a(ter his ele%tion.@
4his judg)ent a%tually eFa)ines the de%ision o( Dull Ben%h in /adan
/ohal /ittal2s )ase ;supra<, a judg)ent deli$ered on the $ery sa)e day
by applying the $ery sa)e logi% in Bal#it Sin"h Bhuller2s )ase ;supra<.
4he Dull Ben%h &as %onsidering the legality o( an order passed by the
'eputy Speaker de%lining to de%lare respondents *o.0 and - as
dis9uali(ied under Para / o( 4enth S%hedule, &here it had obser$ed,
the Parlia)ent intended to treat the State unit o( a
politi%al party as a separate entity (or the purpose o(
deter)ining &hether there is any dis9uali(i%ation o( a
)e)ber o( the House o( the State Legislature.@
?n a %ase o( split, the Supre)e Court said in !a"#it Sin"h2s )ase ;supra<
that
+/0rd )e)bers o( the State Legislature belonging to that
politi%al party )ust (or) a group to )ake a split e((e%ti$e
&ith the State Legislature but does not lead to the
%on%lusion that the Parlia)ent intended to treat the State
unit o( a politi%al party as a separate entity (or the bene(it
o( para 0..... i( the )e)ber is set up by a national party, it
&ould be no ans&er to say that e$ents at national le$el has
no %on%ern to de%ide &hether there is a split or not. ?n %ase
a )e)ber is put up by a national politi%al party it is split in
that party &hi%h is rele$ant %onsideration and not a split o(
that politi%al party at the State le$el.@
4he Supre)e Court &as a%tually (inding the judg)ent in /adan /ohan
/ittal2s )ase to ha$e not laid do&n a %orre%t la&, the de%ision that &as
in a%%ord &ith the logi% propounded in Bal#it Sin"h Bhuller2s )ase that a
lone )e)ber in a legislature party %ould %ause a dee)ing )erger o( the
original politi%al party and that &as su((i%ient by $irtue o( para -;/<.
4he Supre)e Court applied the reasoning eFpounded in A.
Vish,anathan Vs. Hon2ble Speaker 9a-il ?adu :e"islati6e Asse-bly
%1**&' 2 S 3+3 to dispel the $ie& eFpressed in /adan /ohan /ittal
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CWP No.2900 of 2013 -38-
;supra< to be &rong. ?t 9uoted in 2/ 3ishwanathan,4
BPara + ;b< ;de(ining Elegislature partyE< %annot be read in
isolation. ?t should be read along &ith paras /, 0 and -.
Para +;b< in re(erring to the legislature party in relation to a
)e)ber o( a House belonging to any politi%al party, re(ers
to the pro$isions o( paras /, 0, -, as the %ase )ay be, to
)ean the group %onsisting o( all )e)bers o( that House (or
the ti)e being belonging to that politi%al party in
a%%ordan%e &ith the said pro$isions, na)ely, paras /, 0 and
- as the %ase )ay be. Para /;+< read &ith the GFplanation
%learly points out that an ele%ted )e)ber shall %ontinue to
belong to that politi%al party by &hi%h he &as set up as a
%andidate (or ele%tion as su%h )e)ber.....@
?t obser$ed, a(ter the dis%ussion that the Punjab %ase ;i.e. !adan !ohan
!ittal< &as not %orre%tly de%ided. 4he %ongruen%e o( the de%ision o( the
Legislature Party to an earlier de%ision o( the original politi%al party
regarding )erger has to be %o)plete and established as su%h. #(ter all,
=# legislature party is not a separate entity. ?t is only a &ing &ithin the
original politi%al party@ ;Ra- Bilas Shar-a Vs. Speaker, Haryana
Vidhan Sabha 1**0%1' RR %i6il' +1*, 1**0 %3' .:R 31@'.
00. 4he in%orre%tness o( the $ie& eFpressed in Bal#it Sin"h
Bhuller2s )ase operates by i)plied o$erruling by the reasoning adopted
by the Supre)e Court in !a"#it Sin"h2s )ase and its eFpress ruling that
Dull Ben%h de%ision in the Punjab %ase to be &rong. 1e %an arri$e by
the sa)e in(eren%e by ad$erting to another judg)ent o( the Supre)e
Court. Ra#endra Sin"h Rana and other Vs. S,a-i .rasad /aurya and
others %2000' 1 S 200 &as a %ase o( split in the party &here +0 !L#s
o( Bahujan Sa)aj Party &ho lent support to Sa)aj&adi Party to (or) the
.o$ern)ent. 4he leader o( the BSP legislature party (iled a petition
under #rti%le +6+ (or dis9uali(i%ation. ?t &as %ontested by 03 !L#s said
to be on behal( o( -: !L#s ele%ted on BSP ti%ket re9uesting the Speaker
to re%ogniAe the split on the basis that +/0rd o( the )e)bers o( BSP PANKAJ KUMAR
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CWP No.2900 of 2013 -3:-
legislati$e party %onsisting o( +:6 legislators had in a body separated
(ro) the party pursuant to a )eeting held at !L#sE hostel, Lu%kno&. 4he
Speaker $eri(ied that 03 )e)bers &ho had signed the appli%ation
presented to hi) had in (a%t signed it, sin%e they &ere physi%ally
present be(ore hi). H$er8ruling the obje%tion o( the BSP, the Speaker
passed an order ordering a split in the BSP party on the arith)eti% that
03 out o( +:6 %o)prised +/0rd o( the )e)bers o( the legislati$e party.
4his group &hi%h had been kno&n as Lok 4antrik Bahujan 'al &as short
li$ed, (or, the 'al had )erged &ith SP party. 4he Speaker did not de%ide
the appli%ation )ade by BSP seeking dis9uali(i%ation o( +0 !L#s &ho
&ere part o( 03 that appeared be(ore the Speaker and postponed the
de%ision. Hn the subse9uent date, 0 )ore !L#s supported 03 &ho had
appeared be(ore hi) and the Speaker a%%epted their %lai) as &ell. 4he
de%ision o( the Speaker &as put to a %hallenge through a &rit petition
(iled to the High Court o( the judi%ature at #llahabad. 4he de%ision
be(ore the High Court had a %he9uered %areer and it is not ne%essary (or
us to deal &ith it eF%ept to re(er to the la& laid do&n by the Supre)e
Court in the said %ase. 4he Supre)e Court held that de%isions taken by
the Speaker in ter)s o( Para 0, Para - or Para / o( the +:th S%hedule
enjoyed a 9uali(ied i))unity as pro$ided in para 5 o( the 4enth
S%hedule ;e)phasis supplied<.
0-. 4he Supre)e %ourt obser$ed (urther that in the %onteFt o(
the introdu%tion o( sub8arti%le ;/< o( #rti%le +:/ and #rti%le +6+ o( the
Constitution, a pro%eeding under the 4enth S%hedule to the Constitution
is one to de%ide &hether )e)bers has be%o)e dis9uali(ied to hold his
de%ision as a !e)ber o( Parlia)ent or o( the #sse)bly on the ground o(
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CWP No.2900 of 2013 -3;-
de(e%tion. 4he 4enth S%hedule %annot be read or %onstrued independent
o( #rti%les +:/ and +6+ o( the Constitution and the obje%t o( those
arti%les. # de(e%tion is added as a dis9uali(i%ation and the 4enth
S%hedule %ontains the pro$isions as to dis9uali(i%ation on the ground o(
de(e%tion. # pro%eeding under the 4enth S%hedule %ould not be started
be(ore the Speaker only on a %o)plaint being )ade that %ertain persons
belonging to a politi%al party had in%urred dis9uali(i%ation on the ground
o( de(e%tion. Dinding a justi(i%ation (or inter(eren%e, the Supre)e Court
held that there &as a )erit in the %ontention that the Speaker )ay not
enjoy (ull i))unity in ter)s o( Para 5 o( the 4enth S%hedule o( the
Constitution and that e$en i( he did, the po&er o( judi%ial re$ie&
re%ogniAed by the Court in Kihoto Hollohan's case &as su((i%ient to
&arrant inter(eren%e &ith the order in 9uestion. ?n this de%ision, it
%ould be noti%ed that the Supre)e Court &as literally applying the sa)e
prin%iple in the nature o( en9uiry (or both a %ase (iled under Para 0
;no& repealed< that dealt &ith a split in the politi%al party and the
)erger that is %onte)plated in para -.
02. Rigour o( en9uiry (or dis9uali(i%ation under Para 0 or Para -
is not $ery di((erent. 4his be%o)es rele$ant sin%e all the senior %ounsel
appearing (or the respondents &ould state that the reasoning in !a"#it
Sin"h ;supra< o$erruling /adan /ohan /ittal ;supra< &ill not apply
be%ause the de%ision &as &ith re(eren%e to split in the politi%al party
%o$ered in Para 0, sin%e repealed, and not (or )erger dealt &ith in Para
-. 4he latter %ontains a dee)ing pro$ision under sub %lause ;/< &hi%h is
not %ontained in para 0. 4his argu)ent is &rong, be%ause, e$en apart
(ro) the (a%t that de%ision o( 1a!jit Sin!h itsel( re(ers to the
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CWP No.2900 of 2013 -39-
insu((i%ien%y o( just the $ie& o( the legislature party not )erely in the
%ase o( split but also in the %ase )erger, as seen in pre%eding
paragraph, the eFisten%e o( Para 5 itsel( )akes $ulnerable any de%ision
that assu)es an auto)ati% irre(utable presu)ption o( )erger by
re(erring to the dee)ing pro$ision. 4he de%ision o( the Speaker under
Para - is by no )eans a )e%hani%al eFer%ise. #s obser$ed by the
Supre)e Court in ;r. /aha)handra .rasade Sin"h Vs. hair-an,
Bihar :e"islati6e oun)il %2001' @ S 010, in the %onteFt o( nature o(
en9uiry %onte)plated (or de%iding on dis9uali(i%ation under para /,
&here (indings on se$eral (a%ts ha$e to be re%orded,
=Si)ilarly, (or appli%ation o( Para -, en9uiry has to be
)ade &hether the original politi%al party )erged &ith
another politi%al party, &hether the )e)ber o( the House
has be%o)e )e)ber o( su%h other politi%al party, as the
%ase )ay be, o( a ne& politi%al party (or)ed by su%h
)erger or &hether he has not a%%epted the )erger and
opted to (un%tion as a separate group.@
4his de%ision ought to be a %o)plete ans&er to the s%ope o( en9uiry in
spite o( the dee)ing pro$ision.
05. 4he sa)e de%ision in Ra#inder Sin"h Rana ;supra< also
appro$es o( the )ajority $ie& o( the Dull Ben%h in .arkash Sin"h Badal
and others Vs. 7nion o$ India and others AIR 1*@0 .CH 2&3. 4he
Court &as holding that under para 5, the Speaker &ould ha$e
jurisdi%tion only i( any 9uestion arises as to &hether a )e)ber o( the
House has be%o)e subje%t to dis9uali(i%ation under the said S%hedule
and the sa)e has been re(erred to hi) (or de%ision. 4he Speaker &ould
ha$e no suo )otu po&ers to reopen an issue and the pre8re9uisite (or
in$oking the jurisdi%tion itsel( &ould be the eFisten%e o( a 9uestion (or
dis9uali(i%ation o( so)e )e)ber. 4his %ould happen only in one &ay
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CWP No.2900 of 2013 -%0-
that so)e )e)ber is alleged to ha$e in%urred the dis9uali(i%ation
enu)erated in para /;+< and so)eone interested approa%hes the
Speaker (or de%laring that the said )e)ber is dis9uali(ied (ro) being
)e)ber o( the house.
%iii' Burden o$ proo$ o$ establishin" -er"er, on ,ho- it
6ests and ,hether established
(a) 5part from oral assertions) there is no tan!i(le material
to prove mer!er
03. ?( a )ere re(eren%e to the nu)eri%al strength o( )ore than
//0rd de%laring that they ha$e agreed to )erger o( the original politi%al
party &ill not su((i%e in the light o( %hallenge to it and that it &ould still
be ne%essary (or a Speaker to de%ide that there had been su%h )erger,
the neFt issue that &ould (all (or %onsideration is the (a%tual basis &hi%h
&as brought be(ore the Speaker that %ould test the %orre%tness o( the
de%ision. 1e ha$e already set (orth the li)it o( inter(eren%e that is
possible through a judi%ial re$ie& o( the de%ision o( the Speaker. ?t )ay
not be the appre%iation o( (a%ts brought on )aterial be(ore it that
&ould be a subje%t o( re$ie&. ?( the Speaker did not (ind the need to
eli%it in(or)ation (ro) the President o( the party legislators about the
truth o( their plea by &ay o( %orroboration, ? &ould eFpe%t that the
Speaker had so)e other )aterial on the basis o( &hi%h he %ould ha$e
a%ted that there &as a )erger o( the original politi%al party. ?n su%h a
%ase the de%ision %ould pass the test. #t an en9uiry brought under para
5, there &as surely an o%%asion to bring strength to the de%ision that
had already been taken. ?t is at that ti)e that the respondents had yet
another o%%asion to pro$e &hat they &ere %lai)ing that there had been
a )erger o( the original politi%al party. ?( the argu)ent that the )erger
PANKAJ KUMAR
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Chandigarh
CWP No.2900 of 2013 -%1-
agreed to by the) as )e)bers o( the legislati$e party &ill not by itsel(
be su((i%ient to pro$e the )erger o( the original politi%al party by the
&ay &e ha$e interpreted para -;/< in the light o( %hallenge under para
5, then it &ould be essential to eFa)ine &hether the do%u)ents
produ%ed by respondent *os.0 to 5 &ere su((i%ient (or the Speaker to
%o)e to the de%ision that he did originally on :6.++./::6 and (or the
a((ir)ation o( su%h a de%ision through the i)pugned order. 1e ha$e
already eFtra%ted the entire portion o( the letter and as &ell as the
)inutes. 4hey )ake no re(eren%e to any de%ision o( the original politi%al
party and the letter )erely eFpresses that )e)bers o( legislati$e party
had %onsidered and de%ided on the )erger o( the original politi%al
party. 1e ha$e pointed out to the insu((i%ien%y o( )erely the )e)bers
o( the legislati$e party de%iding that the original politi%al party has
)erged to (ul(ill the re9uire)ent and sa$e the )e)bers (ro)
dis9uali(i%ation. 4here ought to ha$e been a de%ision o( the original
politi%al party that )erged &ith the Congress party.
(() 6mpro(a(ility of meetin! of dele!ates on 7/+/$*8#) as
pointed out (y the petitioner
0,. 4he learned Senior Counsel appearing on behal( o( the
petitioner pointed out that at no point o( ti)e at the pre$ious
pro%eeding &as any re(eren%e to any other )eeting o( the original
politi%al party (or its de%ision to )erge &ith Congress. ?t &as (or the
(irst ti)e &hen a reply &as (iled in C1P *o.+-+6: o( /:+: that a %ase o(
)eeting o( the delegates o( the original politi%al party &as brought in
the replies o( respondents *o.0 to 3. ?t &as stated in paragraph 6 that a
)eeting &as held on :,.++./::6 o( the H"C ;BL< &here it &as de%ided
PANKAJ KUMAR
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CWP No.2900 of 2013 -%2-
by o$er&hel)ing )ajority by the pri)ary )e)bers o( the party to
)erge the sa)e &ith the ?*C. Both the parties stood )erged on
:,.++./::6 itsel(. ?n a separate )eeting on the sa)e day, 2 )e)bers o(
H"C ;BL< endorsed the de%ision taken by the pri)ary )e)bers o( the
party. 4he learned Senior Counsel &ould argue on the (ollo&ing
(allibilities/i)probabilities to the plea o( )erger ;i< that e$en in the
reply, there &as no re(eren%e )ade as to the pla%e &here su%h )eeting
took pla%eJ ;ii< there &as no re(eren%e to any resolution as ha$ing been
passedJ ;iii< there &as again no re(eren%e about &ho %alled the )eeting
and &hether noti%e had been gi$en to all the )e)bersJ ;i$< &hen
)inutes o( the )eeting had been dra&n up (or the legislati$e party that
the )e)bers o( the legislati$e party had %onsidered and de%ided )erger
o( original politi%al party, there &as no resolution o( the original
politi%al party (or the )erger o( the partyJ ;$< there &ere no re%ords
su%h as noti%es or $ideo or audio re%ordings o( any o( the pro%eedings o(
the original politi%al partyJ ;$i< there &as no representation e$en to the
Gle%tion Co))ission to in(or) about the )erger till +,.:+./:+0, that is,
till a(ter the de%ision o( the Speaker that is i)pugned in this &rit
petitionJ ;$ii< H"C ;BL< had literally %ontested (ro) ,, %onstituen%ies
and the delegates &ere said to ha$e been present and so)e o( &ho)
eFa)ined as &itnesses be(ore this Court &ere all persons dra&n (ro)
that (i$e %onstituen%ies that respondent *os.0 to 3 represented. *ot one
single delegate o( any other %onstituen%y had been eFa)inedJ ;$iii< ea%h
one o( the &itnesses &ho &as eFa)ined &as dire%tly %on(ronted &ith
the 9uestions that the )eeting did not take pla%e and there &ere not
the)sel$es delegates o( the politi%al party to &hi%h they &ere no )ore
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Chandigarh
CWP No.2900 of 2013 -%3-
than )ere denials &hen they ought to ha$e had do%u)entary proo( o(
their %ontentions i( the assertions &ere trueJ ;iF< stereo typed a((ida$its
had been prepared reprodu%ing $erbati) in a typeset that (illed up
)erely the na)es o( the respe%ti$e deponents.
(c) &onduct of the petitioner at the time of en9uiry) as
pointed out (y the respondents
06. #ll the respondents &ould point out to the %ondu%t o( the
petitioner in the %ourse o( %ross8eFa)ination as a person not &illing to
speak truth and &ho &as )erely gi$ing e$asi$e ans&ersJ o( a person &ho
&as not &illing to ad)it the position o( the (ather in the partyJ o( his
un&illingness to state &hy he did not (ile the )inutes o( the (irst
)eeting held on /0.+:./::6J re(usal to gi$e the agenda (or the )eetingJ
un&illingness to state the %ontent o( the )eeting that he had &ith the
Chie( !inister be(ore the $ote o( %on(iden%e and re(usal to gi$e dire%t
9uestion &hether his (ather &as )inister in the .o$ern)ent o( Ch. 'e$i
Lal (ro) +633 to +636 and +636 to +6,5 &hen he responded that he did
not kno& or as si)ple as a 9uestion as &here he stayed &hene$er he
%a)e (or holiday at Chandigarh. 4he 9uestions and ans&ers, ? )ust
obser$e &ere e9ually baseJ as (ri$olous as bordering on being ridi%ulous
and at on%e, irrele$ant. ?( a person &as teased by asking 9uestions
&hether his (ather Sh. Bhajan Lal &as a !inister or &here he spent his
holidays at Chandigarh, it )ust be )erely dis%arded as in%onse9uential
and ? a) not prepared to &eigh the %hara%ter o( e$iden%e by the
irre$erent responses he ga$e. 4he responses &ere a re(le%tion on the
)eaningless 9uality o( so)e o( the 9uestions that &ere addressed to
hi).
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CWP No.2900 of 2013 -%%-
(d) 'espondents duty to adduce positive evidence of
mer!er : "rinciples of (urden of proof
-:. ?( the key e$iden%e o( )erger o( the original politi%al party
has to be put to test, the ne%essary 9uestion &ould be &ho should take
the burden o( proo( o( establishing su%h a disputed 9uestion o( (a%t.
Sin%e the de%ision had been taken and this &as put to %hallenge in
paragraph 5, &ould the petitioner re9uire to dis%harge the burden o(
proo( that there &as no su%h )eeting or &hether the burden &ould still
be on the person &ho had asserted that there had been a )erger o( the
original politi%al party. ? &ould eFtend the nor)al rule o( e$iden%e in a
situation like this, &here the persons &ho are ele%ted on a parti%ular
party ti%ket, na)ely, H"C ;BL< &ere ad)ittedly not any longer in that
party. Constitution pro$ides (or a dis9uali(i%ation (or de(e%tion and i(
su%h a dis9uali(i%ation &as not to be applied, they &ere re9uired to
pro$e a parti%ular (a%t that &ill enable the) to apply (or su%h an
eF%eptional situation. 4he eF%eptional situation )ust be that there &as
a )erger o( the original politi%al party. Se%tion +:+ to +:- o( the ?ndian
G$iden%e #%t, +,3/ bring out a)ong other pro$isions, the burden o(
proo(. Se%tion +:+ de%lares that &hoe$er desires any Court to gi$e a
judg)ent as to any legal right or liability dependent on the eFisten%e o(
(a%ts &hi%h he asserts, )ust pro$e that those (a%ts eFist. ?n this %ase, a
de%ision that there had been a )erger alone enables a person to get
o$er the dis9uali(i%ation. #s (ar as the petitioner &as %on%erned, it &as
enough that respondent *os.0 to 3 did not ad)ittedly %ontinue in the
party &hi%h ele%ted the). Se%tion +:/ is a %orollary to Se%tion +:+
&hi%h says that burden o( proo( in a suit or pro%eeding lies on that
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person &ho &ould (ail i( no e$iden%e at all &ere gi$en on either side. ?(
the petitionerEs %ase &as to be rested that the respondents had )o$ed
o$er to yet another party &hi%h &as an ad)itted (a%t and there(ore, i(
no e$iden%e had been gi$en, the only &ay that dis9uali(i%ation &ould
not operate &as to say that there had been a )erger o( su%h politi%al
party &hi%h &as the %ase propounded by respondent *os.0 to 3. Se%tion
+:0 also is an illustration o( ho& the burden o( proo( to a parti%ular (a%t
&ould re9uire to be established &hen it says that the proo( o( any
parti%ular (a%t lies on that person &ho &ishes the Court to belie$e in its
eFisten%e, unless it is pro$ided by la& that the proo( o( that (a%t shall
lie on any parti%ular person. 4his is also eli%ited in the judg)ent in
Ra#endra Sin"h Rana2s )ase &hi%h &e ha$e re(erred to abo$e. 1hile
ad$erting to issue o( a %lai) (or a split in the original politi%al party in
addition to sho&ing that +/0rd )e)ber o( the legislati$e party ha$e
%o)e out o( the party, it is ne%essary to pro$e at least pri)a (a%ie that
su%h a split had taken pla%e. 4he Court obser$ed in para 03 that those
&ho le(t the party &ill ha$e pri)a (a%ie to sho& by rele$ant )aterials
that there has been a split in the original party. Considering the %ase
that 03 !L#s staked a %lai) be(ore the Speaker, it &as re9uired to sho&
that +/0rd o( the )e)bers o( the legislati$e party ha$e %o)e out and a
plea that they &ere not re9uired to produ%e any )aterial in support o(
the split %ould not be a%%epted. 4he Court &as a%tually dis%arding an
argu)ent that =the legislators &ere &earing t&o hats one as )e)ber o(
the original politi%al party and the other as )e)ber o( the legislati$e
asse)bly and it &ould be su((i%ient to sho& that +/0rd o( the legislators
ha$e (or)ed a separate group to in(er a split. 4he paragraph spoke o(
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t&o re9uire)entsJ one, a split in the original party and t&o, group
%o)prising o( +/0rd o( the legislators separating (ro) the legislati$e
party. By a%%eding to the t&o hats theory, one o( the li)bs o( para 0
&ould be )ade redundant or otiose. #n interpretation o( that nature has
to be a$oided to that eFtent i( possible. Su%h an interpretation is also
not &arranted in the %onteFt.@ 4his is to eFplain that the dee)ing
pro$ision o( &hat para -;/< pro$ides that //0rd )e)bers o( the
legislati$e party &ould lead to ne%essary in(eren%e o( )erger o( the
original politi%al party )erely ans&ers one li)b, na)ely, that //0rd
)e)bers o( the legislati$e party had agreed to the )erger o( the
original politi%al party. Hther li)b is the proo( that the original politi%al
party a%tually )erged. Both these aspe%ts &ould re9uire to be pro$ed.
?t is this latter aspe%t that %alls (or a proo( at the instan%e o( the
persons &ho &anted to take the bene(it o( su%h )erger, $iA., the
bene(it being not dis9uali(ied by the (a%t that they &ere shi(ting
loyalties to another party (ro) the party &hi%h sent the) to the
asse)bly.
3. 3indin"4 9he burden o$ proo$ o$ -er"er )ast on the
respondents not established. onstitutional -andate
brea)hed.
-+. ?n this %ase, there has been absolutely no proo( o( )erger
o( the original politi%al party. ?( ? say that the de%ision o( the Speaker in
the (irst instan%e on :6.++./::6 &as against %onstitutional )andate, ?
say so be%ause the letter &ritten by the legislators on :6.++./::6 and
the de%ision taken on the sa)e day &ere literally on no e$iden%e
produ%ed. 4he e$iden%e &as that )ore than //0rd )e)bers o( the
legislati$e party had de%ided to )erge. ?t o((ered no proo( o( the (a%t
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CWP No.2900 of 2013 -%:-
that the original politi%al party had a%tually )erged. 4he Speaker &ho
had re%ei$ed the letter (ro) the Congress Party that H"C ;BL< had
)erged &ith the) did not think it ne%essary surprisingly to look (or a
si)ilar letter e$en (ro) the leader o( that politi%al party &hi%h had
)erged. 4he de%ision in Ra#inder Sin"h Rana2s %ase ;supra< is an
authority (or the position that Paras - and 5 are part o( a single pro%ess
and the de%ision that is taken under para - )ust stand test o( en9uiry
&hen a %ontest is brought by any person in para 5. #ll that the person
&ho sought (or dis9uali(i%ation &as entitled to say &as the bare
)ini)u), that there had been a de(e%tion (ro) the original politi%al
party. ?( the slur o( de(e%tion &as to be e((a%ed, it %ould be done only
&hen there &as a )erger o( the party itsel(. 4he only o%%asion &hen in
spite o( a %lai) (or )erger, the identity o( the original party %ould
subsist &ould be instan%es &here a person &ho &as ele%ted (ro)
original politi%al party &as not prepared to a%%ept the )erger and
%ontinued to (un%tion as a separate entity. 4his is prote%ted under Para
-;+<;b<. ?n e$ery other situation, the )e)bers &ho %lai)ed a )erger
&ould re9uire to sho& that as a )atter o( (a%t, there has been su%h a
)erger. 4he Speaker had no )aterial at all to take su%h a de%ision. He
had abdi%ated the %onstitutional trust in ha$ing to render a de%ision
&hi%h &as sa%rosan%t. *o other authority %ould ha$e adjudged on the
plea o( )erger &hen a %hallenge &as brought be(ore hi). 4he
Constitution that pla%es the Speaker as the singular authority %asts an
additional burden &hi%h the regular 4ribunals or Courts seldo)
%on(ront. His %onsideration ought to ha$e been &hether there &as a
)ergerJ that su%h )erger &as a )erger o( original politi%al party and
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the )e)ber o( legislature party agreed to su%h )erger. ?( //0rd o( su%h
)e)bers agreed, it &as dee)ed to be su%h )erger. ?( less than //0rd,
the bene(it o( dee)ing pro$ision also &ould not operate. 4he
re9uire)ent o( //0rd o( the )e)bers o( the legislati$e party to a%%ord
to the )erger o( the original politi%al party &ould dee) su%h )erger
but that by itsel( &ould ne$er ha$e been su((i%ient. ?t is possible that
the )ajority o( the original politi%al party a%tually took a de%ision not to
)erge but //0rd )e)bers o( the legislati$e party de%iding to )erge.
4he dee)ing pro$ision &ill lose its $alue i( there &as a )is)at%h
bet&een the de%ision o( the original politi%al party and the legislature
party.
-/. ?t is not as i( the respondents do not understand this si)ple
logi%. 4here &ould ha$e been no atte)pt e$en be(ore the Speaker in
trying to bring any e$iden%e o( $arious party )e)bers be(ore hi) to say
that there had been a )eeting o( the politi%al party on :,.++./::6, i( it
&as not (or a re9uire)ent that the original politi%al )ust ha$e taken a
de%ision to )erge. ?t &as the %ongruen%e o( their de%ision &ith the
de%ision o( the original politi%al party through an agree)ent to su%h
)erger that )akes possible (or the de(e%ting )e)bers not to in%ur
dis9uali(i%ation. 4he &ords eFpressed are that //0rd o( the )e)bers o(
the legislati$e party ha$e agreed to such mer!er. Su%h )erger )ust be a
de%ision else&here na)ely o( a de%ision o( the original politi%al party,
apart (ro) their o&n de%ision at the legislati$e party le$el.
-0. 4he SpeakerEs de%isions at the (irst and at the se%ond le$el
are not $itiated )erely by error in reasoning. 4he error is egregious.
Signi(i%antly, in this %ase, the Speaker has not dealt &ith the e$iden%e
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o( any o( the &itnesses brought by the respondents in an atte)pt to
pro$e that there &as a )eeting o( the delegates o( the party on
:,.++./::6. #ll the a((ida$its &ere stereo typed and the re%itals &ere
the sa)e setting out the alleged (a%t o( their presen%e on :,.++./::6.
4he Speaker has )ade a s&eeping obser$ation that all the &itnesses
ha$e spoken about the )erger and nothing &as eli%ited in the %ross8
eFa)ination. 4he eFpressions o( ho& the Speaker has dealt &ith 5,
&itnesses are %ontained in one single senten%e =there &as no $ital
dis%repan%y in the dispositions and stood the test o( rigorous %ross8
eFa)ination o( !r. Satya Pal "ain, Senior Counsel (or !r. Bishnoi. 4he
state)ents &ere %onsistent and &orth o( %reden%e ;&orthy o(
%reden%e<.
--. 4he reasoning adopted by the Speaker (or %o)ing to the
de%ision is &holly against the )andate o( the Constitution re9uiring the
SpeakerEs satis(a%tion that //0
rd
)e)bers o( the original politi%al party
)erged &ith another party. 4he in(eren%e has been &ith re(eren%e to
Para -;/< in that )ore than //0
rd
o( the legislature party has agreed to
the )erger. He has obser$ed that there has to be a presu)ption to su%h
a )erger &ithout looking (or any e$iden%e o( &hether the Speaker had
be(ore hi) parti%ulars o( the so8%alled de%ision o( the original politi%al
party to )erge. #d$erting to the de%ision on the (a%t o( &hether there
&as a )eeting on :,.++./::6, the Speaker looked to the e$iden%e o( Sh.
Kuldeep Bishnoi (or an appraisal o( &hether his %ontention that the
)eeting did not take pla%e &as true or not. 4he %onsideration &as that
Kuldeep Bishnoi &as ad)ittedly not at the )eeting and he %ould not
ha$e (irst hand kno&ledge regarding &hat transpired at Karnal. He has
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again reasoned that no e$iden%e o( &itness &as produ%ed by Kuldeep
Bishnoi that there &as no su%h )eeting held at Karnal. 4he )istake &as
in %o)pletely re$ersing the burden o( proo( o( &hat &e ha$e eFtra%ted
else&here, that it &as essentially on the persons &ho &ere %ontending
that there &as a )eeting on :,.++./::6 and that the )eeting resulted
in a de%ision to )erge. By in$erting the burden o( proo( %asting the
burden on the petitioner, the Speaker %o))itted a serious error in
raising &rong 9uestions to be ans&ered by the petitioner and the
absen%e o( su%h ans&ers as proo( o( the (a%t that the )eeting did take
pla%e. ?t is not the (ailure to pro$e the absen%e o( )eeting that %ould
result in a proper (inding. 4he 9uestion to ha$e been raised &as
&hether there &as a )eeting on :,.++./::6 and there &as su((i%ient
proo( (or su%h an assertion. ?t &as proo( o( a positi$e assertion that
&ould bring ho)e the proper result &hi%h in this %ase the Speaker (ailed
to do. 4he Speaker has paraphrased the (ollo&ing points as establishing
the )eeting on :,.++./::68
;i< 32 delegates8%u)8pri)ary )e)bers out o( +:, had
de%ided regarding the )erger.
;ii< *o e$iden%e had been produ%ed by the petitioner that
persons &ho &ere eFa)ined be(ore hi) &ere not genuine
)e)bers.
;iii< ?t &as di((i%ult to disbelie$e the %onsistent testi)ony o(
5, persons &ho %lai)ed that there &as a )erger.
;i$< 4he prede%essor8in8o((i%e &ho originally ga$e a de%ision
on :6.++./::6 had de%ided the )erger o( t&o politi%al
parties.
-2. 4he order a%%epting the )erger on 6.++./::6 &as hasty,
sans basis and &ithout undertaking the )ini)u) o( %olle%tion o( data
regarding the de%ision o( the original politi%al party. 4he se%ond le$el
de%ision through the order dated +0.+./:+0 &as on a &rong
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understanding on the purport o( para -;/<, o$ersi)pli(i%ation o(
belie$ing the )ost arti(i%ial parrot like $ersions o( persons dra&n only
(ro) the %onstituen%ies o( the de(e%ting )e)bers and pla%ing the
burden on the petitioner to pro$e that the )erger did not take pla%e,
(a%tors leading to the illegality o( the ulti)ate result. 4here &as si)ply
no obje%ti$e %onsideration o( e$ery one o( the $ital para)eters that
%ould support a sound reasoning. #nneFures P8+ and P8/ had &eightless
9uality to lend su%h proo(. 4he de%isions in Kihoto Hollohan2s )ase,
!a"#it Sin"h2s )ase and Ra#endra Sin"h Rana2s )ase surely allo& (or a
judi%ial re$ie& in respe%t o( a de%ision o( the Speaker &ho a%ts as a
4ribunal to see &hether de%ision o( the Speaker %on(or)s to the
)andate o( the Constitution, &hi%h it does not.
1. 3indin"s4 %i' /ala$ides a"ainst the Speaker not
established< %ii' no de$e)t in pleadin"s
-5. 4hat lea$es us &ith last seg)ent &hi%h is built on )ala (ides
o( the Speaker in his de%ision and other )inor issues. 4he learned Senior
Counsel appearing on behal( o( the petitioner &ould point out to the
(a%t that Speaker had delayed de%ision (or )ore than three years and he
&as not e$en prepared to abide by the undertaking &hi%h he had gi$en
be(ore the 'i$ision ben%h. 4he 'i$ision Ben%h has itsel( )ade so)e
obser$ations about ho& the Speaker spoke through Soli%itor .eneral
o((ering to set do&n a s%hedule (or hearing and (or disposal but resiled
(ro) the) at the neFt hearing. 4he appli%ation under paragraph 5 &as
brought in 'e%e)ber, /::6. 4he de%ision &as rendered in "anuary, /:+0
that is )ore than three years a(ter the (iling o( the petition. ?n
/aya,ati Vs. /arkandeya hand and others %1**@' 0 S +10, the
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Supre)e Court ruled that it &as absolutely ne%essary (or e$ery Speaker
to (iF a ti)e s%hedule as per the rele$ant Rules (or disposal o( the
dis9uali(i%ation pro%eedings. 4he Supre)e Court obser$ed that all su%h
pro%eedings )ust be %on%luded and order %ould be passed &ithin a
period o( three &eeks (ro) the date on &hi%h the petitions ha$e taken
on (ile. ?n this %ase the Speaker had taken )ore than three years. But
the sa)e judg)ent also states that the order passed e$en a(ter a delay
%annot be taken as per$erse. 4here are se$eral eFplanations gi$en by
the %ounsel appearing on behal( o( the Speaker as to &hy the de%ision
%ould not be taken that the Speaker had to tra$el o$erseasJ that the
)other o( the Speaker had diedJ that the (ather o( the Speaker took illJ
the daughter o( the Speaker &as getting )arriedJ three Speakers ha$e
been %hanged one a(ter another. ? ha$e not enough )aterials to a((ir)
&hat the petitioner is urging (or, that the Speaker &as spirited by any
)ala (ide in the de%ision that he ulti)ately took. 4he Senior Counsel (or
the petitioner &ould say that the Speaker did not gi$e up his party
a((iliation although 4enth S%hedule itsel( prote%ted the Speaker i( he
resigns (ro) the original politi%al party a(ter his ele%tion to the o((i%e o(
Speaker under para 2. 4he si)ple ans&er to the ground raised is that
there is no %o)pulsion under the Constitution (or the Speaker to resign
(ro) the party a(ter taking o$er as Speaker. Para 2 o( the 4enth
S%hedule pro$ides (or an option to the Speaker to resign. 4his itsel( has
been %onsidered in Kihoto Hollohan Vs. (a)hillhu 1**2 Supp %2' S
&+1. 4he other ground urged by the petitioner is that the Speaker had
disallo&ed 9uestions &hi%h &ould eFpose the hollo&ness o( the
respondentsE %ase and he inter$ened and asked leading 9uestions. *o
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details o( the leading 9uestions had been set (orth nor are the details
%learly set (orth as to &hat &as the i)portant 9uestion that had been
disallo&ed. ?ndeed, i( there &as any parti%ular pro%edural &rong, the
i))unity o( the SpeakerEs de%ision &ill itsel( prote%t su%h &rong (ro)
judi%ial s%rutiny and that %annot a((ord a ground (or eFpression o( )ala
(ides against the Speaker. 4he de%ision that is brought (or %hallenge
be(ore this Court is the ulti)ate de%ision passed under an adjudi%ation
in para 5 that upholds the de%ision already taken on :6.++./::6. 4he
person that passed an order on :6.++./::6 is not the person &ho
ulti)ately passed the order upholding the de%ision. 1ith the
dis%ontinuity o( the persons &ho held the o((i%e o( Speaker, ? %annot
(ind that one &as supporting another (or the )ala (ide %ause. ?t is
brought out in e$iden%e that the /nd respondent be(ore this %ourt took
o$er as Speaker only during the penden%y o( the LP# on :/.:2./:++. 4he
operation o( the 'i$ision Ben%h order dire%ting disposal had been stayed
by the Supre)e Court on :-.:+./:+/ and &hen the )atter &as de%ided
(inally on /,.:6./:+/, the Supre)e Court had (iFed a ti)e o( (our
)onths that (ell on /3.:+./:+0. 4he order had been passed on
+0.:+./:+0 &ell &ithin the ti)e pres%ribed by the Court.
-3. So)e $ideo re%ordings burnt on a C' ha$e also been brought
in Court to state that the Speaker had gi$en an inter$ie& to the press
soon a(ter the de%ision &here the Speaker has reported to ha$e %lai)ed
that he is a )e)ber o( the Congress at all ti)es and this sho&ed that
his party a((iliation gained abo$e the post o( i)partiality as a Speaker.
4here is a %ontest on the ele%troni% do%u)ent produ%ed by the /nd
respondent and the learned Senior Counsel appearing on behal( o( the
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/nd respondent has relied on de%isions o( the Supre)e Court in R./.
/alkhani Vs. State o$ /aharashtra AIR 1*03 S 1+0, Ra- Sin"h and
others Vs. ol. Ra- Sin"h AIR 1*@& S 3 and R.K. Anand Vs.
Re"istrar, ;elhi Hi"h ourt in Crl. #ppeal *o.+060//::, dated
/6.:3./::6, all o( &hi%h ha$e laid do&n the la& about ho& an ele%troni%
do%u)ent has to be re%ei$ed. ?n the (a%e o( the %ontest, no atte)pt &as
)ade by the petitioner to $ou%h (or the authenti%ity o( the do%u)ents. ?
a) not prepared to rely on the )atters that the do%u)ents are as su%h
to %ontend )aking re(eren%e to the alleged partial status o( the Speaker
to his politi%al party.
-,. Sh. S.P. "ain, Senior #d$o%ate also argues that out o( 2
de(e%ting )e)bers, - had been )ade )inisters under the Congress
regi)e. 4hat probably brings to truth &hat the bargain &as to de(e%t
but &ill not gi$e roo) (or in(eren%e o( )ala (ides (or the SpeakerEs
de%ision. #gain, the %ontention &as that the petitioner resigned his
#sse)bly seat and %ontested Parlia)entary ele%tion. ?n the $ery sa)e
%onstituen%y, the petitionerEs &i(e %ontested on H"C ;BL< ti%ket and &on
the ele%tion and o%%upied the seat in the #sse)bly as a H"C ;BL< party
)e)ber, a party, in SpeakerEs de%ision had )erged &ith ?*C. ?t &as
indeed a paradoFi%al situation that the House &itnessed an alleged
)erged party that )ust ha$e %eased to eFist &as $ery )u%h present in
the $ery sa)e House. 4his %ontradi%tion is possibly only in one situation
i.e. &hen the original politi%al party has )erged &ith another party but
the legislature party )e)ber did not a%%ept the )erger and %hooses to
re)ain in the party on &hose ti%ket he %ontested and &on the ele%tion.
?n any other situation, the presen%e o( the original politi%al party
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)e)ber in the House is not possible. ?( it happens, it is itsel( a sure
pointer to the &rong de%ision o( the Speaker. # &rong de%ision o( the
Speaker, surely it &as, as &e ha$e (ound, but not a )ala (ide one.
-6. 4here are %ertain other peripheral issues &hi%h ha$e been
brought at the ti)e o( argu)ents. 4here is a %ontention by the Senior
Counsel appearing on behal( o( the /nd respondent that the petition is
bad in that the $eri(i%ation )ade does not %on(or) to the re9uire)ents
o( the High Court rules. 4he 1rit "urisdi%tion ;Punjab and Haryana<
Rules, +635 re9uires that the %ontent o( petition shall be a%%o)panied
by an a((ida$it in support thereo( under Part ?? Chapter ?V Vol. 2 Rule ,.
4he a((ida$it )ust %on%lude &ith a jurat o( the de%larantEs o&n
kno&ledge and use the eFpression as per Rule 6 o( Chapter ?? Part B only
(a%ts &ithin his o&n kno&ledge and distinguish the) (ro) (a%ts &hi%h
are not &ithin his kno&ledge, by using the eFpression =? a) in(or)ed
and i( su%h )ay be the %ase, should add =and $erily belie$e it to be
true.@ ?n this %ase, the $eri(i%ation is to the e((e%t that B%ontents o(
paras + to -/ are true to the best o( )y kno&ledge and belie( as &ell as
the o((i%ial re%ord. Legal sub)ission are based upon the legal ad$i%e
re%ei$ed, &hi%h is belie$ed to be %orre%t.C 4here are at all ti)es so)e
sla%kness in )entioning the spe%i(i% paragraphs &hi%h are &ithin dire%t
kno&ledge and paragraphs &hi%h are not &ithin the dire%t kno&ledge
and the pra%ti%e is to bring the) all under one %ategory by an
a((ir)ation that the %ontents brought out are all to the best o(
kno&ledge and belie(. 4here is nothing seriously (a%tually &rong about
any o( the %ontentions raised in the &rit petition and the essential
paragraphs are appraisal o( legal in(ir)ities atta%hed to the order o( the
PANKAJ KUMAR
2014.10.09 14:18
I attest to the accuracy and
authenticity of this document
Chandigarh
CWP No.2900 of 2013 -78-
Speaker. 4here is again nothing parti%ularly &ithin the personal
kno&ledge o( the petitioner that ha$e a bearing to the )atters asserted
in the &rit petition. ?n ;r. /aha)handra .rasade Sin"h Vs. hair-an
Bihar :e"islature oun)il %2001' @ S 010, it &as held that e$en the
(ailure to %o)ply &ith the rules o( pleadings regarding the )anner o(
$eri(i%ation as laid do&n under CPC, the Supre)e Court held that =there
is indeed no lis bet&een the person )o$ing the petition and the )e)ber
o( the House &ho is alleged to ha$e in%urred a dis9uali(i%ation. ?t is not
an ad$ersarial kind o( litigation &here he )ay be re9uired to lead
e$iden%e.... Hn a%%ount o( non8(iling o( an a((ida$it as re9uired under
Hrder 5 Rule +2;-< CPC, the petition &ould not be rendered in$alid nor
&ould the assu)ption o( jurisdi%tion by the Chair)an on its basis be
ad$ersely a((e%ted or rendered bad in any )anner. ? &ill not hold any
serious lapse as ha$ing been )ade &hi%h %ould prejudi%e the
respondents. ? (ind no reason to uphold this obje%tion taken by the
Speaker in this regard.
?. D"#4o#"t"o$
2:. ?n the light o( &hat has been dealt &ith in detail, ? hold the
i)pugned order rendered on +0.:+./:+0 by the Speaker to be bad in la&
and hen%e set aside. 4he %onse9uen%es &ill be that the original de%ision
taken by the Speaker on :6.++./::6 ad)itting the plea o( )erger o(
respondent *os.0 to 5 and the subse9uent order a%%epting the plea o(
)erger by respondent *o.3 on +:.++./::6 are also not $alid.
Respondents *o.0 to 3 in$ite the dis9uali(i%ation o( being )e)bers o(
the House on the ground o( de(e%tion under Para / o( S%hedule I to the
Constitution. 4hey are also dis9uali(ied to hold any re)unerati$e
PANKAJ KUMAR
2014.10.09 14:18
I attest to the accuracy and
authenticity of this document
Chandigarh
CWP No.2900 of 2013 -7:-
politi%al post (or duration o( the period %o))en%ing (ro) the respe%ti$e
dates o( $oluntarily gi$ing up their )e)bership (ro) the party $iA.
:6.++./::6 (or respondent *os.0 to 5 and (ro) +:.++./::6 (or
respondent *o.3, as pro$ided under #rti%le 05+B o( the Constitution.
Ho&e$er, any a%tions per(or)ed or de%isions taken, &hile already
o%%upying su%h re)unerati$e politi%al post till the ti)e o(
pronoun%e)ent o( this judg)ent shall not be rendered in$alid. 4he &rit
petition is allo&ed. 4here shall be, ho&e$er, no dire%tion as to %osts.
@*. *ANNANA
JUDGE
O!to-3 09= 201%
PankajP
PANKAJ KUMAR
2014.10.09 14:18
I attest to the accuracy and
authenticity of this document
Chandigarh