Вы находитесь на странице: 1из 64

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL)

OF 2016

(Arising from the Final Judgment dated 21.04.2016 passed by

the Hon’ble Uttarakhand High Court at Nainital in Writ Petition

(M/S) No. 795/2016)

IN THE MATTER OF:

UNION OF INDIA

Versus,

PETITIONER

SH. HARISH CHANDRA SINGH RAWAT & ANR.

RESPONDENTS

I.A.

/2016

Application for permission to file Special Leave to Appeal without certified as well as plain copy of the impugned judgment dated 21.04.2016

I.A.

/2016

An Application for permission to file the Lengthy Synopsis and List of Dates.

I.A.

/2016

An Application for exemption from filing certified copy of the impugned judgement dated 21.04.2016

PAPER BOOK (FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: MRS. ANIL KATIYAR

   

INDEX

 

S.NO.

 

PARTICULARS

 

PAGES

1.

Office Report On Limitation

 

-A-

2.

Listing Performa

 

A1 - A2

3.

Synopsis and List of dates

 

B -

4.

Impugned Judgment dated 21.04.2016 passed by the Hon’ble Uttarakhand High Court at Nainital in Writ Petition (M/S) No. 795/2016 (Copy of the impugned judgment has not become available. The letter written by the Assistant Solicitor General, Uttarakhand informing the outcome of the writ petition is being placed with prayer for leave to file the copy of the impugned judgment immediately on its becoming available.)

 

5.

Special Leave Petition with Affidavit

   

6.

APPENDIX i. Article 356 of the Constitution of India

   

ii. Article 212 of the Constitution of India

7.

ANNEXURE- P1 Copy of notification of Proclamation dated 27.03.2016 issued by the Hon’ble President of India.

 

8.

ANNEXURE- P2 Copy of the order dt. 29.03.2016 passed by

 

the

ld.

Single

judge

of

the Hon’ble

Uttarakhand

High

Court

in

WP

No.

795(M/S)/2016.

 

9.

ANNEXURE- P3 Copy of the order dt. 30.03.2016 passed by the ld. Division Bench of the Hon’ble Uttarakhand High Court in Special Appeal No. 64/2016.

 

10.

/ 2016 Application for permission to file Special

   

Leave to Appeal without certified as well as plain copy of the impugned judgment dated

21.04.2016

 

11.

/ 2016 An Application for permission to file the Lengthy Synopsis and List of Dates.

   

12.

/ 2016 An Application for exemption from filing certified copy of the impugned judgement dated 21.04.2016

   

SYNOPSIS AND LIST OF DATES

The present Special Leave Petition is being filed against

the impugned judgment dated 21.04.2016 passed by the ld.

Division Bench of the Hon'ble Uttarakhand High Court at Nainital

in Writ Petition No. 795 (M/S) of 2016 titled

as Shri Harish

Chandra Singh Rawat Vs. Union of India & Anr.

Vide

its

impugned

judgment

dated

21.04.2016

[pronounced in open court], the Hon’ble High Court has been

pleased to quash the Proclamation dated 27.03.2016 issued

under Article 356 of the Constitution – imposing President’s Rule

in the State of Uttarakhand.

It is humbly submitted that the impugned judgment of

the Hon’ble High Court has been pronounced in open Court and

a copy thereof has not become available. The petitioner has

already applied for a certified copy of the impugned judgment.

There is an imminent urgency to challenge the legality and

validity of the impugned judgment by filing the present SLP. It is

due to the urgency in the present matter and the paucity of

time that the present Special Leave Petition is being filed by the

Petitioner without annexing a copy of the impugned judgment,

which has not become available. The present Special Leave

Petition

has

been

filed

on

the

basis

of

the

telephonic

conversation and communication received from the counsel for

the Union of India, i.e. the Asst. Solicitor General for India at

the Hon’ble Uttarakhand High Court at Nainital. A true copy of

the letter dated 21.04.2016 sent by the Asst. Solicitor General

for

India is annexed with this Special

Leave

Petition. The

petitioner craves leave of this Hon’ble Court for permission to

file the present Special Leave Petition without the impugned

judgment. The petitioner undertakes to place on record the

copy of the impugned judgment immediately on its becoming

available.

It is further submitted that the present SLP is being filed

only

on

the

basis

of

the

telephonic

conversation

and

communication dt. 21.04.2016 of the Assistant Solicitor General

of India, Uttarakhand and the petitioner further seeks leave of

this Hon’ble Court to alter / modify / add / amend the present

SLP with additional and further grounds upon perusing of the

impugned judgment passed by the Hon’ble High Court.

On that basis, it is submitted that after quashing the

Proclamation dt. 27.03.2016, the Hon’ble High Court has been

pleased to, inter alia, direct as under:-

i. Status quo as on 27.03.2016, i.e. the date when the

impugned Presidential proclamation was issued shall be

maintained.

ii. Floor test shall be held in the Uttarakhand Vidhan

Sabha on 29.04.2016.

It is most respectfully submitted that the impugned

judgment of the Hon’ble High Court is contrary to the settled

principles of law laid down by this Hon’ble Court and the Hon’ble

High Courts. The Hon’ble High Court has not remained within

the

permissible

limits

of

judicial

review

of

Presidential

proclamation issued under Article 356 of the Constitution of

India as laid down in various judicial pronouncements of this

Hon’ble Court and the Hon’ble High Courts. The impugned

judgment, being contrary to the settled principles of law,

deserves to be set aside by this Hon’ble Court.

LIST OF DATES

30.01.2012: The 3 rd General Elections were held for the 70-

member Legislative Assembly of the State of

6.03.2012:

Uttrakhand.

The results of the 3 rd General Election for the

Legislative Assembly of the State of Uttarakhand

were

announced

on

6.03.2012.

The

Indian

National Congress [INC] emerged as the single

largest party with 32 seats in the 70 member

Legislative

Assembly.

The

INC

formed

its

government with the help and support of:-

i) one (1) MLA from Uttrakhand Kranti Dal,

ii) three (3) independent MLAs, and

iii) three (3) MLAs from Bahujan Samaj Party

(BSP).

In the said elections, the main opposition party

namely the Bharatiya Janata Party (BJP) got 31

seats.

Thereafter, due to vacancies that arose, bye -

elections were held in certain constituencies.

As

on 18.03.2016, the party-wise breakup of seats in

the Uttarakhand Legislative Assembly was as

follows:-

i) 36 members of Indian National Congress (INC)

ii) 28 members of Bharatiya Janata Party (BJP)

iii) 2 members of Bahujan Samaj Party (BSP)

iv) 1 member of Uttarakhand Kranti Dal [P] (UKD

[P])

v) 3 independents.

09.03.2016:

The Uttarakhand Legislative Assembly had been

summoned

by

the

Hon’ble

Governor

for

its

Budget Session commencing from 09.03.16. The

address by the Hon’ble Governor was delivered

at the beginning of the Session on 09.03.16.

 

18.03.2016

Earlier in the day on 18.03.16, 27 MLAs of the

(10.30 a.m.

BJP,

led

by

Sh.

Ajay

Bhatt,

Leader

of

the

and

11.10

Opposition, had submitted a representation to the

a.m.)

Secretariat of the Hon’ble Governor, inter alia,

pointing out

therein that

on the

said

day the

Appropriation Bill 2016-17 was to be presented

before the House. Further, with reference to Rule

296 of the Rules of Procedure of the Uttarakhand

Assembly,

a

demand

had

been

made

that

division

of

vote

should

take

place

on

the

Appropriation Bill 2016-17. The Hon’ble Governor

had

been

requested

to

require

the

Hon’ble

Speaker and the House to hold a division of vote

on the Appropriation Bill 2016-17, in terms of

Rule

296(1)

of

the

Rules

of

Procedure

and

Conduct of Business of Uttarakhand Legislative

Assembly of 2005.

This representation had been received in

the office of the Hon’ble Governor at about 10.30

a.m. on 18.03.16. The Hon’ble Governor was not

in

Dehradun.

Sh.

Ajay

Bhatt,

Leader

of

Opposition had contacted the Hon’ble Governor

on phone and informed him of the representation

of these 27 MLAs. The Hon’ble Governor had

instructed

his

Secretariat

to

receive

the

representation of these 27 MLAs and directing

further that the said representation of 27 MLAs

asking for division of vote on the Appropriation

Bill 2016-17, received in his Secretariat should be

forwarded to the Hon’ble Speaker. It was also

directed that the audio and video recording of the

proceedings

of

the

House

should

also

be

obtained from the Hon’ble Speaker.

In accordance with the directions of the

Hon’ble Governor, the said representation of 27

MLAs of BJP requiring the division of vote on the

Appropriation Bill 2016-17 was forwarded by fax

to the Hon’ble Speaker alongwith a letter dated

18.03.16 addressed by the OSD and Secretary to

the Hon’ble Governor (total 4 pages), at about

11.10 a.m. on 18.03.16.

18.03.2016 The Hon’ble Governor had arrived at Dehradun at

(at

around

about

1.00

p.m.

on

18.03.16

and

had

been

1.00

p.m.)

apprised of the carrying out of his directions in

relation to the representation of 27 MLAs of BJP

requiring the division of vote on the Appropriation

Bill 2016-17, which had been forwarded by fax at

about 11.10 a.m.

18.03.2016 At about 2.25 p.m. on 18.03.16, the Hon’ble

(at

about

Governor had received another representation dt.

2.25

p.m.)

18.03.16

from the Leader of Opposition, inter alia,

contending

therein

that

one

BJP

MLA,

Sh.

Ganesh Joshi, had been arrested at about 8.45

a.m. from a hotel during a meeting of the BJP

Legislative Committee. Sh. Ajay Bhatt, Leader of

the Opposition, had submitted a memorandum dt.

18.03.16, to the Hon’ble Governor reporting this

event and raising a grievance for such an illegal

and unconstitutional act in relation to Sh. Joshi

and

requesting

instructions

for

for

his

issuance

of

participating

appropriate

in

the

proceedings of the Assembly on 18.03.16.

This memorandum dt. 18.03.16 received

at about 2.25 p.m. by the Hon’ble Governor was

directed to be forwarded to the Hon’ble Speaker.

In accordance with the direction of the Hon’ble

Governor, this memorandum of Sh. Ajay Bhatt,

Leader of Opposition regarding the arrest of BJP

MLA Sh. Ganesh Joshi alongwith a covering

letter dated 18.03.16 signed by the OSD and

 

Secretary

to

the

Hon’ble

Governor,

was

forwarded

to

the Hon’ble

Speaker

by

fax

(2

pages), at 2.53 p.m. on 18.03.16.

 

18.03.2016

Immediately

upon

introduction

of

the

(at

about

7.30 p.m.)

Appropriation Bill 2016-17 in the Uttarakhand

Legislative Assembly at about 7.30 p.m. in the

evening on 18.03.2016, a demand for division of

vote was made by 35 MLAs (26 MLAs of BJP and

9 MLAs of Congress) on the floor of the House.

At that point

of time,

only 67

MLAs and the

Hon’ble Speaker were present in the House. The

petitioner in the writ petition before the High Court

/ Respondent No. 1 herein in the present SLP -

was also present. The demand for division of vote

by

35

MLAs

on

the floor

of the House

had

constituted a demand by the majority.

It appears that despite receiving the copy

of the representation of 27 MLAs demanding for

the division of vote in terms of Rule 296(1) with

reference to the Appropriation Bill 2016-17 having

been

forwarded

as

per

the

directions

of

the

Hon’ble Governor and further despite the same

demand having been made by 35 MLAs on the

floor of the House (out of total 68 MLAs present in

the House), division of

vote was

not

taken /

carried out by the Hon’ble Speaker.

On the contrary, it had been claimed that

the Appropriation Bill 2016-17 had been passed

by a voice vote at about 7.30 p.m. At about 7.43

p.m. on 18.03.16, the proceedings of the House

had been adjourned to 28.03.16 by the Hon’ble

Speaker.

18.03.2016 The Secretariat of the Hon’ble Governor, at about

(at

about

11.30 p.m.)

11.30 p.m. on 18.03.16, had received another

memorandum signed by the 35 MLAs - including

Sh. Ajay Bhatt, Leader of Opposition alongwith 34

other MLAs, inter alia, contending that they had

met the Hon’ble Governor earlier in the day on

18.03.16 for division of vote in the House on the

Appropriation

Bill

2016-17,

however,

despite

specific demand also having been made on the

floor of the House by 35 MLAs for division of vote

on the Appropriation Bill 2016-17, the same had

not been taken / carried out. It was contended

that the Government had lost the confidence of

the

House

and

is

conducting

itself

in

an

unconstitutional manner. It was also contended

that there were 68 MLAs present in the House

including the Hon’ble Speaker. Out of them, 35

MLAs had opposed the Appropriation Bill 2016-17

and therefore, the said Appropriation Bill had not

been passed and the Government is in minority.

Along

with

the

above-mentioned

memorandum signed by 35 MLAs including Sh.

Ajay Bhatt, Leader of Opposition and 34 other

MLAs

[handed

over

18.03.16],

copies

of

at

about

11.30

p.m.

on

two

more

resolutions

[addressed to the Secretary, Vidhan Sabha]

one for removal of the Hon’ble Speaker and the

other one for the removal of Hon’ble Deputy

Speaker of the House, had been furnished to the

19.03.2016

Hon’ble Governor.

signed by 35 MLAs.

These resolutions had been

A communication / special report dt. 19.03.16

was sent by the Hon’ble Governor to the Hon’ble

President of India giving his preliminary view on

account of events regarding the proceedings of

Uttarakhand Legislative Assembly on 18.03.16

including that the Hon’ble Speaker had claimed

the passing of the Appropriation Bill by voice

vote,

finality of such a decision etc.

In this

communication / special report of the Hon’ble

Governor dt. 19.03.16, the events which had

taken place on 18.03.16, inter alia, the direction

of

the

Hon’ble

Governor

to

forward

the

representation of 27 MLAs for division of vote on

the Appropriation Bill 2016-17 to the Hon’ble

Speaker had been reiterated. The memorandum

with

regard

to

Sh.

Ganesh

Joshi

was

also

reiterated. The fact that at about 7.30 p.m. on

18.03.16, a demand for division of vote on the

Appropriation Bill had been made on the floor of

the House, had also been reiterated. Sh. Ajay

Bhatt, Leader of Opposition calling up the Hon’ble

Governor at about 8.00 p.m. and informing him

that according to him the Government has fallen,

was also incorporated. The fact that 35 MLAs

including Sh. Ajay Bhatt, Leader of Opposition

alongwith 34 MLAs had called upon the Governor

at Raj Bhavan and handed over a letter signed by

35 MLAs stating that the Appropriation Bill had

not been passed in the House etc., was also

19.03.2016

incorporated.

By

another

communication

dt.

19.03.16,

addressed by the Hon’ble Governor to the then

Hon’ble Chief Minister, the necessity to seek a

vote of confidence from the State Legislature at

the earliest but not later than 28.03.16 having

already been conveyed to him, was incorporated.

20.03.2016

Another communication was addressed by the

Hon’ble

Governor

to

the

then

Hon’ble

Chief

Minister on 20.03.16 reiterating his advice that a

vote of confidence be taken at the earliest and

that this be done without any delay.

 

20.03.2016

The Hon’ble Governor, on 20.03.16, wrote to the

Hon’ble President conveying that on 19 th March

the then Hon’ble Chief Minister had been asked

to seek a vote of confidence at the earliest but not

later than 28 th March; that the then Chief Minister

had subsequently called upon the Governor in the

evening and given his version of events when he

was

once

again advised to

seek the

vote of

confidence at the earliest and without any delay;

that another letter has been sent to the then Chief

Minister

on the morning

of

20 th

March

2016

reiterating the same.

 

21.03.2016

The

Hon’ble

Governor

wrote

to

the

Hon’ble

President on 21.03.16 conveying that the then

Chief Minister along with Parliamentary Affairs

Minister Smt. Indira Hridyesh had met the Hon’ble

Governor on the evening of 20 th March 2016. The

then Hon’ble Chief Minister was told that there

were reports of law and order problem at the

residences of some of the rebel Congress MLAs.

The then Hon’ble Chief Minister was very firmly

advised and in no uncertain terms that the vote of

confidence be taken within the next 2-3 days as

had been repeatedly emphasized by the Hon’ble

Governor that it had to be done at the earliest.

The then Hon’ble Chief Minister expressed his

inability in the matter. The then Hon’ble Chief

Minister expressed his inability to intervene at this

stage when the Speaker had already initiated the

process. The then Hon’ble Chief Minister also

claimed that

there was

House,

at

which

point

no irregularity in the

he

was

shown

the

proceedings of the Assembly where a demand for

vote by division was made but was not allowed.

The then Hon’ble Chief Minister had contended

that the decision of the Hon’ble Speaker was final

in the matter. Smt. Indira Hridyesh was called in

by the Hon’ble Governor. She raised the issue of

No Confidence Resolution against the Hon’ble

Speaker and Hon’ble Deputy Speaker and had

said that a 14 days period was essential. Three

MLAs of Congress i.e. Sh. Vijay Bahuguna, Sh.

Harak Singh Rawat and Smt. Amrita Rawat had

submitted a letter to the Hon’ble Governor on 20 th

March 2016 stating that there was breakdown of

constitutional

have

voted

machinery

against

the

as

majority

Money

Bill

of

MLAs

and

the

defeated Money Bill was claimed to have been

“passed”. In the said letter, an apprehension is

also expressed that the erstwhile State Govt.

would

use

the

next

one

week

to

convert

a

minority into majority either by horse trading or by

disqualification of MLAs. Certain other events had

also been reiterated.

The Hon’ble Governor in his letter dated

21.03.16 had also proceeded to state that on the

night of 20 th March 2016, the then Hon’ble Chief

Minister had replied to the Hon’ble Governor’s

letter advising him to seek a vote of confidence,

stating

that

this

has

been

conveyed

to

the

Hon’ble Speaker who has informed that the next

session of the Assembly will commence on 28 th

March

2016

at

11.00

a.m.

The

legal

issues

connected with Article 181 of the constitution in

the matter of No Confidence Motion against the

Speaker

and

Deputy

Speaker

are

being

examined.

23.03.2016 On 23.03.16, a message under Article 175(2) was

sent by the Hon’ble Governor to the Vidhan

Sabha of Uttarakhand. In the said message it was

stated that a group of 35 MLAs had visited the

Raj Bhawan on 18.03.16 and had submitted a

Memorandum, inter alia, questioning the status of

Appropriation Bill 2016. It was urged that despite

35 Members requesting for a voting by division,

they

were

ignored

by

the

Speaker.

It

was

contended that this resulted into denying them

their right to vote on the Appropriation Bill.

The then Hon’ble Chief Minister vide his

communication dt. 20.03.16, had intimated that

the vote of confidence will be sought on 28.03.16,

when the Assembly meets at 11.00 a.m.

It had

been directed by the Hon’ble Governor that the

proceedings of the Assembly on 28.03.16 shall

be conducted peacefully, upholding the spirit of

democracy. The results of the voting by division

shall be declared soon thereafter. The entire

proceedings of the Assembly shall be recorded

and videographed and authenticated copy of the

video and other records

shall be sent

to the

Governor with the transcript of the proceedings

the same day.

25.03.2016 The Hon’ble Governor, on 25.03.16, wrote to the

Hon’ble

President

conveying

that

the

then

Hon’ble Chief Minister will be seeking a vote of

confidence from the House on 28.03.16, when it

meets

after

the

vacation.

A

message

under

Article

175(2)

has

already

been

sent

to

the

Speaker.

Hon’ble

Governor

had

called

the

Secretary of the Vidhan Sabha and given him

detailed directions vide his communication dt.

23.03.16.

On a petition of the Chief Whip and

Minister

of

Parliamentary

Affairs,

Smt.

Indira

Hridyesh, the Speaker had issued show cause

notice

to

9

Congress

MLAs

under

the

Anti

Defection Rules of the Uttarakhand Legislative

Assembly.

These

notices

were

issued

on

19.03.16 and were returnable on 26.03.16.

26.03.2016 The Hon’ble Governor, on 26.03.16, wrote to the

Hon’ble President, inter alia, conveying that at

11.00 a.m. on 26.03.16, a closed cover was

received at Raj Bhavan from the office of Sh.

Bahuguna.

The

closed

cover

had

a

representation

addressed

to

the

Hon’ble

Governor by Sh. Harak Singh Rawat.

The letter

also had a pen drive attached with it. The pen

drive contained, inter alia, 3 audio conversations

and one video recording. The transcript of the

conversation in the video was also attached with

the representation.

In

this

video,

the

then

Hon’ble

Chief

Minister was clearly visible but the other person in

conversation with him (claimed to be one Sh.

Umesh

Sharma)

was

not

clearly

visible/identifiable. The conversation is indicative

of

monetary

and

other

allurements

being

discussed. The representation alongwith the pen

drive and the transcript was forwarded by the

Hon’ble Governor to the Hon’ble President of

India. The contents of the pen drive were being

analyzed for their veracity.

26.03.2016

The

Hon’ble

Governor

addressed

another

communication / report to the Hon’ble President

on 26.03.16. Inter alia, the following had been set

out therein:-

i.

The

Budget

Session

had

started

on

09.03.16 with the address of the Governor

and a total of 8 sittings had already been

held upto 18.03.16.

 

ii.

It has been reiterated that on 18.03.16, the

Appropriation Bill for F.Y. 2016-17 was to

be passed. When the Appropriation Bill was

taken up, a demand for division had been

made.

iii.

Similarly, it has also been reiterated that

earlier in the day on 18.03.16, 27 MLAs of

the BJP had addressed a representation to

the Hon’ble Governor requesting for a vote

on division of the Appropriation Bill. This

representation

was

forwarded

to

the

Speaker of the Assembly. Directions for

audio video recording of the proceedings to

the Governor were also conveyed.

iv. The fact of memorandum with regard to

arrest of Sh. Ganesh Joshi and request for

his participation in the proceedings of the

House on 18.03.16 by the Leader of the

Opposition was also reiterated.

v. At about 7.30 p.m., as soon as Sh. Ajay

Bhatt,

Leader

of

the

Opposition

rose

demanding a division, the Speaker made an

announcement

pandemonium that

in

the

prevailing

the Appropriation Bill

has been passed and thereafter left the

Assembly

Chamber

House for 28.03.16.

after

adjourning

the

vi. Sh. Ajay Bhatt, Leader of the Opposition

had

informed

the

Hon’ble

Governor

on

telephone

at

about

8.00

p.m.

that

the

Government has fallen and that he was

coming to Raj Bhavan with his suupporters.

vii. At 11.30 p.m., 35 MLAs including Sh. Ajay

Bhatt, Leader of the Opposition along with

34 MLAs called upon the Governor and

handed over a letter signed by 35 MLAs

stating that the Appropriation Bill had not

been passed. Since the Appropriation Bill

had not been passed, the Government had

fallen and needed to be dismissed. There

were

only

68

members

present

in

the

House while 35 were with them and they

had all opposed the Appropriation Bill. They

also claimed that in addition to these 35

MLAs, they also had support of at least 3

more MLAs viz. Sh. Ganesh Joshi (in police

custody), Sh. Bheem Lal Arya of BJP and

Sh. Sarwat Karim Ansari (BSP).

viii.

The

Hon’ble

Speaker

had

claimed

the

Appropriation Bill passed by voice vote,

finality of such a decision etc.

 

ix.

It is also stated that till date i.e. till the date

of

writing

of

this

communication

on

26.03.16,

the

Appropriation

Bill

2016-17

had not been forwarded by the Speaker to

the Governor.

 

x.

The Hon’ble Governor has also stated in

this

report

dated

26.03.16

that

in

the

meantime

he

had

also

examined

the

proceedings

of

the

Uttarakhand

Vidhan

Sabha of March 18, as conveyed by the

Hon’ble

Speaker

under

his

signature,

alongwith

the

video

recording

of

the

relevant time. A perusal of the proceedings

had made it clear that at the time of passing

of Uttarakhand Appropriation Bill 2016-17, a

demand was made under rule 296(1) for a

vote by division, but neither a division took

place,

nor voting

by show of

hands, as

provided in the rules. The Appropriation Bill

was passed in din and chaos without any

specific vote in favour or against the Motion

getting recorded.

While setting out certain other aspects in

this communication dt. 26.03.16, it had been

stated that even though the veracity of the video

presented in the pen drive,

is

yet to

be fully

established, it is prima facie obvious that plans

had been afoot to indulge in horse trading of

MLAs and the then Hon’ble Chief Minister is party

to such machinations. A serious apprehension

was also expressed with regard to conduct of the

proceedings on 28.03.16. It has been stated that

in

the

given

atmosphere,

it

situation

and

the

surcharged

is possible that the Assembly

proceedings on 28 th March, may unruly, chaotic

and violent.

During the arguments and in response to

a query it was submitted to this Hon’ble Court that

on 26.03.2016, the Central Government (with a

covering

letter

dt.

26.03.2016

signed

by

the

Director

in

the

Secretariat

of

the

Hon’ble

President)

had

received

a

communication

dt.

26.03.2016 addressed by the BJP to the Hon’ble

President, inter alia, submitting therein about the

then Hon’ble Chief Minister indulging in horse

trading in relation to MLAs both belonging to

Congress as well as BJP and that MLAs and their

family members are being threatened etc. This

communication

was

also

part

of

the

original

record submitted before the Hon’ble High Court

on 04.04.2016 alongwith the counter affidavit of

the Respondent No. 1 in the writ petition in the

26.03.2016

High Court.

That after the receipt of the above-mentioned

report / communication dt. 26.03.16 from the

Hon’ble Governor, a note for the Cabinet had

been prepared on 26.03.16. In the background of

various communications / reports received from

the Hon’ble Governor from 19.03.16 onwards, the

details about the recent political developments in

the State and also the aspects highlighted by the

Pen Drive indicating horse trading - had been

mentioned therein. Non-holding of the division of

vote on the Appropriation Bill 2016-17, the then

Hon’ble

Chief

Minister

not

acceding

to

the

repeated requests of the Hon’ble Governor for

securing

vote

of

confidence

expeditiously,

in

order to win over support by allurements etc. one

BJP MLA Sh. B.L. Arya had been made the Vice

President of Ambedkar Jayanti Samaroh Samiti,

Sh. B.L. Arya of BJP remaining absent from the

assembly proceedings on 18.03.16 were also

incorporated

Subsequently,

in

the

on

note

for

21.04.16,

the

on

Cabinet

behalf

of

Respondent No. 1 in the writ petition (UOI), it had

been submitted before the Hon’ble Court that the

statement with regard to disqualification against

Sh. B.L. Arya being not dealt with evenly, was a

mistake of fact and would not be relevant.

The

contents of the Pen Drive showing clearly the

then

Chief

Minister

in

the

video

and

the

conversation for monetary and other allurements

was also incorporated in the Cabinet Note.

The

aspect that the defeat of the Appropriation Bill

2016-17 on the floor of the House would have

had led to the fall of the Government, the claim of

the failed Appropriation Bill having been passed

by the voice vote etc. were also included in the

said

Note.

The

relevant

factors,

which

had

become available on record of the Govt. of India,

including that the failed Appropriation Bill had

been claimed to have been passed amounting to

continuation of Government not in accordance

with and contrary to the Constitution of India was

also mentioned.

The material becoming available to the

Government was also placed before the Cabinet

for

approval

of

the

recommendation

to

the

Hon’ble President for proclamation under Article

356 of the Constitution of India on 26.03.2016.

27.03.2016 On 26.03.16, the recommendation of the Cabinet

was forwarded to the Hon’ble President and had

been

approved

by

the

Hon’ble

President

on

27.03.16. On 27.03.16, at about 4.30 p.m. the

proclamation issued by the Hon’ble President

under Article 356 of the Constitution, was notified

vide a gazette notification. A copy of the gazette

notification of Presidential Proclamation dated 27-

03-2016 is annexed herewith as ANNEXURE -

P1. (Page

Upon

to

)

issuance

of

notification

under

Article 356 on 27.03.2016, the Chief Secretary,

State

of

Uttarakhand

had

also

issued

a

notification

on

27.03.2016

itself

whereby

the

entire Council of Ministers of the erstwhile State

Govt.

were

relieved

from

the

Government.

However this order had not been filed with the

writ petition and also there was no challenge to

the same.

27.03.2016

The

audio

and

video

recordings

which

had

become available to the Govt. on 26.03.16 had

been forwarded to the CFSL on the same day.

On 27.03.16, the CFSL later in the day and

after

the

decision

on

the

Proclamation,

had

forwarded its report dt. 27.03.16 certifying that the

examination

of

audio

and

video

files

had

disclosed that the audio recordings of the files are

in continuity and not containing any signs of

editing / tampering. It has further been found and

certified by the CFSL that video and audio file is

also

in

continuity

and

free

from

editing

/

morphing.

 

28.03.2016

On 28.03.2016, the Hon’ble Governor had sent

another report to the Hon’ble President, inter alia,

stating that the voting on the Appropriation Bill did

not take place on 18.03.2016. The Appropriation

Bill was never sent by the Hon’ble Speaker to the

Hon’ble Governor for assent, before the issuance

of notification under Article 356 of the Constitution

of India on 27.03.2016. The Hon’ble Governor

has stated that the Appropriation Bill from the

Hon’ble

Speaker

was

received

only

on

the

28.03.2016 when the Assembly has already been

suspended

vide

notification

dated

27.03.2016

issued under Article 356 of the Constitution of

India. The Hon’ble Governor has also stated that

it has not been possible for him to give assent to

the Bill. Having regard to the fact of closure of the

financial year on 31 st March, there is almost an

emergency

situation

and

accordingly

taking

recourse to the procedure provided in Article 357

(1)(c), the Vote on Account for 4 months, i.e. from

1 st April to 31 st July 2016, was sent by the Hon’ble

Governor

for

authorization

by

the

Hon’ble

President.

It becomes clear that since the Hon’ble

Speaker had also understood that any claim for

passing of the Appropriation Bill, when it had

failed

would

be

void

and

a

nullity,

the

said

Appropriation Bill had not been forwarded to the

Hon’ble Governor before the issuance of the

notification under Article 356 of the Constitution of

India. An Appropriation Bill, if it is legally and

validly

passed,

cannot

be

kept

back

and

is

required

to

be

forwarded

immediately

to

the

Hon’ble Governor. In the present case, it is only

after the proclamation under Article 356 was

notified on 27.03.2016, the Hon’ble Governor has

stated in his report dated 28.03.2016 that he had

received the Appropriation Bill on 28.03.2016. It is

respectfully submitted that the claim - of passing

of the Appropriation Bill 2016-17, when it had

failed

as

having

stood

established

by

documentary evidence, is void ab initio, nullity

having no existence in the eyes of law.

28.03.2016: The erstwhile Chief Minister of the State of

Uttarakhand, i.e. the Respondent No.1 herein

filed a Writ Petition bearing W.P. No.795 of 2016

[M/s] dated 28.03.2016 praying for, inter alia,

issuance

of

appropriate

Writ

quashing

the

Proclamation

dated

27.3.2016

issued

under

Article 356 of the Constitution of India bearing F.

No.V/11013/2/2016-CSR.I

and

the

consequent

Notification thereof.

Respondent No.1 further

prayed

for

a

direction

for

restoring

the

Government of Indian National Congress (INC)

headed

by

Respondent

No.1

along

with

his

Council of Ministers to office and revive and

reactivate

the

third

Uttarakhand

Legislative

Assembly.

Along with the aforesaid writ petition, the

Respondent No.1 also made an application for

stay of the proclamation dated 27.3.2016 and

also prayed for an appropriate direction in terms

of the order of the Hon'ble Supreme Court passed

in Jagdambika Pal (1999) 9 SCC 95 for holding a

floor test in order to prove the majority of the

Respondent No.1 on the Floor of the House.

It is pertinent to note that the said writ

petition along with application for interim relief /

stay

was

mentioned

by

the

Counsel

of

Respondent No.1 for urgent listing before the

Hon'ble Uttarakhand Court. The said writ petition

was accordingly taken up by the Hon’ble High

Court at about 12.30 pm on 28.3.2016 when the

counsels

for

the

petitioner

argued

on

the

application for interim stay / relief for the entire

day.

29.03.2016: On 29.03.2016, counsel for the Petitioner Union

of India appeared before the Hon’ble High Court,

and it was categorically submitted on behalf of

Union of

India

that

they

would deserve

an

opportunity to file its counter affidavit and had

further submitted that in view of the law laid

down by this Hon’ble Court,

i. even before issuing notice, opportunity was

required to be granted to the Central Government

to file an affidavit to demonstrate that no prima

facie

case had been

petitioner.

made

out

by

the writ

ii. there was no permissibility for granting any

interim relief in respect of the said Proclamation

on the ground that as per the authoritative dicta

of the Hon'ble 9 Judges Bench of this Hon'ble

Court laid down in the case of SR Bommai vs UOI

1994 [3] SCC 1 it would be wholly impermissible

either to interdict the issuance of proclamation

and / or its operation till the final verdict on its

validity is pronounced.

It was further submitted that as per the

mandatory procedure laid down by this Hon’ble

Court, following the binding principle laid down in

S.R.Bommai (supra), vide orders dated 10.6.2005

and 25.7.2005 passed by this Hon’ble Court in

the matter of Rameshwar Prasad vs UOI [W.P.

(c) No.257/2005], it was incumbent upon the

Hon'ble High Court to, even before issuing notice

in the matter, require the Central Government to

file an affidavit to bring on record its objections

that the writ petitioner had failed to discharge the

burden of making out the very strong prima facie

case as required in a challenge to an Article 356

Proclamation. It was submitted that at that stage,

neither would the Court issue any notice before

granting opportunity to the Central Government

to

file

its counter affidavit, nor would it

be

permissible to pass any interim order interdicting

the issuance and / or operation of the Presidential

Proclamation.

Written Submissions were also prepared

and submitted on behalf of the Union of India at

the time of hearing and submitted before the

Hon’ble High Court on 29.03.2016 (on account of

a typographical error, typed as dated 28.03.2016

instead of 29.03.2016).

29.03.2016: On

29 th

March

2016

itself,

the

Hon'ble

Uttarakhand High Court at Nainital disposed of

the application for interim relief / stay filed by

Respondent No.1 herein in Writ Petition No. 795

(M/S) of 2016 titled as Shri Harish Chandra Singh

Rawat Vs. Union of India & Anr. - and directing,

inter

alia,

that

the

Uttarakhand

Legislative

Assembly be convened on 31.03.2016 for putting

the

Vote of Confidence to floor test, where

disqualified MLAs would also participate and that

the result of the vote of confidence shall be kept

in

a sealed

cover, and that the

votes of the

“disqualified Member” shall be kept separately -

thereby

interdicting

with

the

Presidential

Proclamation dated 27.03.2016 issued by the

Hon’ble President of India under Article 356 of

the

Constitution

of

India,

which

is

wholly

impermissible in view of the authoritative dicta

propounded by this Hon’ble Court in the case of

S.R. Bommai & Ors. Vs. Union of India & Ors.,

(1994) 3 SCC 1.

Copy of the order date 29.03.2016 passed by the

Ld. Single Judge of the Hon’ble Uttarakhand High

Court is annexed herewith as ANNEXURE P2.

(Page

to

).

It was thereafter i.e.

subsequently when the opportunity for filing the

detailed counter affidavit had been granted that it

was found that gross misstatements, suppression

of material facts to mislead the Hon’ble Court for

securing an interim order, had been made by the

petitioner in the writ petition. The writ petition had

deserved dismissal at the threshold itself.

29.03.2016

In exercise of powers under Article 85(2)(a) of

the Constitution of India, the Hon’ble President

had been pleased to prorogue the Lok Sabha.

30.03.2016

In exercise of powers under Article 85(2)(a) of

the Constitution of India, the Hon’ble President

had been pleased to prorogue the Rajya Sabha.

30.03.2016

In the morning of 30.03.2016, an appeal, by and

on behalf

Appeal

No.

of Union

of India

being Special

64 of 2016,

was filed before

the

Hon’ble High Court at Nainital, impugning the

order

passed

29.03.2016.

by

the

Ld.

Single

Judge

on

Another appeal being Special Appeal

No.

63

of

Hridayesh,

2016 was also

impugning

the

order dated 29.03.2016.

filed by Smt. Indira

Ld.

Single

Judge’s

before

These

the

two

Appeals

Hon’ble

the

were

Chief

mentioned

Justice

of

Uttarakhand High Court at 10.15 am for urgent

listing and hearing. Thereafter, the appeals were

taken up by the Ld. Division Bench of the Hon’ble

High Court at 12.00 pm.

After the counsel for all parties had been

heard by the Ld. Division Bench of the Hon’ble

High

Court

at

considerable

length,

on

a

suggestion made on behalf of Union of India

which was agreed to

by

all

parties, the Ld.

Division Bench of the Hon’ble High Court passed

its order dt. 30.03.2016, inter alia, withdrawing

the writ petition (WPMS No. 795 of 2016) to itself

so that the matter may be finally disposed of and

the order dated 29.03.2016 passed by the Ld.

Single Judge was directed to be put in abeyance

till 07.04.2016.

Copy

of

the

order

date

30.03.2016

passed by the Hon’ble Uttarakhand High Court is

annexed herewith as ANNEXURE P3. (Page

to

).

31.03.2016

Having regard to the report / communication of

the

Hon’ble

Governor

dt.

28.03.16,

it

was

observed that an emergent situation had arisen

since,

in

the

absence

of

a

validly

passed

Appropriation

Bill

becoming

law,

the

administration of State of Uttarakhand would

have been unable to appropriate any funds from

the Consolidated Fund of the State with effect

from 01.04.2016. In order to take immediate

action for the purpose of timely compliance of the

financial business of the State of Uttarakhand,

the Uttarakhand Appropriation (Vote on Account)

Ordinance 2016 was promulgated by the Hon’ble

President of India on 31.03.2016.

It was with a

view to prevent an economic crisis / chaos in the

State of Uttarakhand.

 

01.04.2016

Another Writ Petition being W.P. 856 of 2016,

was filed by Respondent No.1 before the Hon’ble

Uttarakhand High Court, praying for, inter alia,

quashing of the promulgation of the Ordinance

dated 31.03.2016.

04.04.2016

The Hon’ble High Court had fixed a schedule for

filing of counter affidavit by the Respondents in

WP No. 795/2016 by 04.04.2016.

In complete

compliance

and

in

full

cooperation

with

the

schedule fixed by the Hon’ble High Court, the

Respondent No. 1 had filed its counter affidavit

on 04.04.16 and had simultaneously on the

same day, had tendered in a sealed envelope,

the original file of the Govt. of India before the

Hon’ble

High Court with the prayer that

the

documents contained therein would not deserve

to

be

shared

with the petitioner before the

Hon’ble High Court. The respondent had filed its

rejoinder affidavit on 05.04.16.

 

06.04.2016

Detailed

oral

arguments

were

submitted

on

And

behalf of Respondent No.1 (Petitioner before the

07.04.2016

Hon’ble

High

Court)

on

06.04.2016

and

07.04.2016. At about 3.30 p.m. on 7.4.2016, a

fresh application on behalf of Respondent No.1

was presented before the Hon’ble High Court with

the prayer that in the event, during the recess of

the

Hon’ble

High

Court

from

09.04.16

till

17.04.2016, a decision is taken to revoke the

Presidential

Proclamation

then

the

Hon’ble

Governor must invite only the petitioner in the

writ petition to prove majority and will not invite

BJP to form the govt.

The maintainability of this application was

vehemently opposed on behalf of Union of India,

inter

alia,

on

the

ground

that

the

Hon’ble

Governor is not a party to the writ petition and in

any case no notice or direction could be issued

against the Hon’ble Governor and it was also

submitted

that

there

would

not

be

any

permissibility for the Hon’ble Court to pass any

order interjecting the constitutional authorities

and also the process of political democracy to

have its full action and full play in accordance

with the scheme of the Constitution.

However, when the matter was reaching

towards the end of the hearing on 07.04.16, a

statement had been made, by the ld. Attorney

General of India - on behalf of Union of India that

the Hon’ble High Court would be informed in case

any action becomes necessary to be taken by the

Govt. of India before 17.04.16 i.e. till the recess

of

the

Court

and

when

the

Court

was

to

commence the hearing of the arguments of the

ld. Attorney General of India on 18.04.16.

18.04.2016,

Detailed oral arguments were submitted before

19.04.2016,

the Hon’ble High Court on behalf of Union of

20.04.2016

India on 18.04.2016, 19.04.2016 and 20.04.2016.

It is submitted that the ld. Attorney General of

India had made his submissions on 18.04.16 and

19.04.16 and had taken leave of the Hon’ble

Court on the conclusion of his arguments. Till this

time of the ld. Attorney General of India leaving

the Court on 19.04.16, there was no mention of

any kind whatsoever on behalf of the petitioner

before

the

High

Court,

with

regard

to

the

Statement made by the ld. Attorney General of

India on 07.04.16, as submitted above.

 

21.04.2016

On 21.04.2016, it was submitted on behalf of the

Union of India before the Hon’ble High Court that

the

statement

which

had

been

made

on

07.04.2016 (that if any action would be required

to

be

taken by the Union of India during the

recess of the Hon’ble High Court, the same would

be informed to the Hon’ble Court)

operate

only

till

the

resumption

proceedings on 18.04.16.

On

21.04.2016,

vide

its

of

was to

Court

impugned

judgment [pronounced in open court], it has

been informed that the Hon’ble High Court has

been pleased to quash the Proclamation dated

27.03.2016 issued by the Hon’ble President of

India under Article 356 of the Constitution. The

Hon’ble High Court, inter alia, directed as under:-

i. Status quo as on 27.03.2016, i.e. the

date

when

the

impugned

Presidential

proclamation was issued shall be maintained.

ii.

Floor

test

shall

be

held

in

the

Uttarakhand Vidhan Sabha on 29.04.2016.

It is most respectfully submitted that the

impugned judgment of the Hon’ble High Court is

contrary to the settled principles of law laid down

by this

Hon’ble Court and the

Hon’ble High

Courts. The Hon’ble High Court has exceeded the

limited scope of judicial review of Presidential

proclamation issued under Article 356 of the

Constitution of India as laid down in various

judicial pronouncements of this Hon’ble Court and

the

Hon’ble

High

Courts.

The

impugned

judgment, being contrary to the settled principles

of law, deserves to be set aside by this Hon’ble

Court.

It is humbly submitted that the impugned

judgment of the Hon’ble High Court has been

pronounced in open Court and a copy thereof has

not become available. The petitioner has already

applied for a certified copy of the impugned

judgment. There is an imminent urgency to

challenge

the

legality

and

validity

of

the

impugned judgment by filing the present SLP. It

is due to the urgency in the present matter and

the paucity of time that the present Special Leave

Petition is being filed by the Petitioner without

annexing a copy of the impugned judgment,

which has not become available. The present

Special Leave Petition has been filed on the basis

of

the

telephonic

conversation

and

communication received from the counsel for the

Union of India, i.e. the Asst. Solicitor General for

India at the Hon’ble Uttarakhand High Court at

Nainital. Copy of the letter dated 21.04.2016 sent

by the Asst. Solicitor General for India is placed

alongwith the present Special Leave Petition.

The petitioner craves leave of this Hon’ble

Court for permission to file the present Special

Leave Petition without the impugned judgment.

The petitioner undertakes to place on record the

copy of the impugned judgment immediately on

its becoming available.

It is further submitted that the present

SLP

is

being

filed

only

on

the basis

of the

communication dt. 21.04.2016 of the Assistant

Solicitor General of India, Uttarakhand and the

petitioner further seeks leave of this Hon’ble

Court to alter / modify / add / amend the present

SLP with additional and further grounds upon

perusing of the impugned judgment passed by

the Hon’ble High Court.

22.04.2016: Hence, the present Special Leave Petition.

IN THE SUPREME COURT OF INDIA

[Under Order XVI Rule 4(1)(a)]

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION

(Under Article 136 of the Constitution of India)

(With prayer for Interim Relief)

SPECIAL LEAVE PETITION (CIVIL)

OF 2016

BETWEEN:

Union of India Through Secretary Ministry of Home Affairs North Block New Delhi 110001

POSITION OF PARTIES

In the Hon’ble High Court

Respondent No. 1

Versus,

In this Hon’ble Court

Petitioner

1.

Sh. Harish Chandra Singh Rawat s/o Late Rajendra Singh Rawat r/o Bijapur Guest House Garhi Cantt Dehradun

 

Dehradun 248001

Petitioner

Contesting

 

Respondent

2.

State of Uttarakhand Through Chief Secretary

Secretariat, 4 Subhash Road Dehradun 248001

 

Uttarakhand

Respondent No. 2

Proforma

 

Respondent

To

The Hon’ble Chief Justice of India And His Companion Justices of the Supreme Court of India.

The Petitioner above named

MOST RESPECTFULLY SHOWETH:

1.1 The present Special Leave Petition is being filed against

the impugned final judgment dated 21.04.2016 passed by

the Hon'ble Uttarakhand High Court at Nainital in Writ

Petition

No. 795

(M/S) of

2016

titled as Shri Harish

Chandra Singh Rawat Vs. Union of India & Anr.

1.2 Vide

the

impugned

judgment

dated

21.04.2016,

the

Hon’ble High Court has erroneously allowed the writ

petition [being W.P. No. 795 of 2016] - and as informed,

the Hon’ble High Court has been pleased to, inter alia,

quash the Presidential Proclamation dated 27.03.2016

issued by the Hon’ble President of India under Article 356

of the Constitution of India.

1.3 It is humbly submitted that the impugned judgment of the

Hon’ble High Court has been pronounced in open Court

and

a

copy

thereof

has

not

become

available. The

petitioner has already applied for a certified copy of the

impugned judgment. There is an imminent urgency to

challenge

the

legality

and

validity

of

the

impugned

judgment by filing the

present

SLP. It

is

due

to the

urgency in the present matter and the paucity of time that

the present Special Leave Petition is being filed by the

Petitioner without annexing a copy of the impugned

judgment, which has not become available. The present

Special Leave Petition has been filed on the basis of the

telephonic conversation and communication received from

the counsel for the Union of India, i.e. the Asst. Solicitor

General for India at the Hon’ble Uttarakhand High Court at

Nainital. Copy of the letter dated 21.04.2016 sent by the

Asst. Solicitor General for India has been placed alongwith

the present SLP.

The petitioner craves leave of this Hon’ble Court

for permission to file the present Special Leave Petition

without

the

impugned

judgment.

The

petitioner

undertakes to place on record the copy of the impugned

judgment immediately on its becoming available.

It is further submitted that the present SLP is being

filed only on the basis of the telephonic conversation and

communication dt. 21.04.2016 of the Assistant Solicitor

General of India, Uttarakhand and the petitioner further

seeks leave of this Hon’ble Court to alter / modify / add /

amend

the

present

SLP

with

additional

and

further

grounds upon perusing of the impugned judgment

passed by the Hon’ble High Court.

It is most respectfully submitted that the impugned

judgment dt. 21.04.2016 is unsustainable in law, being

contrary to the principles of law laid down by this Hon’ble

Court and the Hon’ble High Courts, and therefore the

impugned judgment would deserve to be set aside by this

Hon’ble Court.

2.

QUESTIONS OF LAW

2.1 Whether

the

High

Court

under

Article

226

of

the

Constitution of India could entertain any writ petition

wherein it had been demonstrated, ex facie, that the writ

petitioner had indulged in making false statements in the

writ

petition

and also

suppression

of

material

facts,

twisting of material facts only with a view to mislead the

Hon’ble Court and securing for itself an interim order ?

2.2 Whether

the

High

Court

under

Article

226

of

the

Constitution of India having regard to the established

fact demonstrating, ex facie, that the writ petitioner had

indulged in making false statements in the writ petition

and also suppression of material facts, twisting of material

facts only with a view to mislead the Hon’ble Court and

securing for itself an interim order was not obliged to

dismiss the writ petition at the threshold itself ?

2.3 Whether

the

High

Court

under

Article

226

of

the

Constitution of India was justified and permitted under the

constitutional scheme to judicially review the satisfaction

of the Council of Ministers and the Hon’ble President

arrived at on the basis of the relevant material -

under

Article 356 of the Constitution of India ?

2.4 Whether

the

High

Court

under

Article

226

of

the

Constitution of India was justified and permitted under the

constitutional

scheme

to

enter

into

the

aspect

of

sufficiency and authenticity of the material which was

placed before the Council of Minister and the Hon’ble

President for arriving at the satisfaction for imposition of

Proclamation under Article 356 of the Constitution of

India?

2.5

Whether the Hon’ble High Court has failed to appreciate

the limited scope of judicial review which is available in

relation to Presidential Proclamations issued under Article

356 of the Constitution of India as laid down by this

Hon’ble Court in various judicial pronouncements?

2.6

Whether the impugned order passed by the Hon’ble High

Court is completely unsustainable in law, being contrary to

the

law

laid down

by

this Hon’ble

Court in various

pronouncements, including the judgment of this Hon’ble

Court in S.R.Bommai (supra)?

 

3.

DECLARATION IN TERMS OF RULE 4(2)

The Petitioner states that no other petition seeking leave

to Appeal has been filed by the Petitioner against the

impugned judgment before this Hon’ble Court.