Full Judgment Text
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PETITIONER:
DR. KASHINATH G. JALMI AND ANR. ETC. ETC.
Vs.
RESPONDENT:
SPEAKER AND ORS.
DATE OF JUDGMENT31/03/1993
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
SAWANT, P.B.
KASLIWAL, N.M. (J)
CITATION:
1993 AIR 1873 1993 SCR (2) 820
1993 SCC (2) 703 JT 1993 (3) 594
1993 SCALE (2)280
ACT:
Constitution of India, 1950:
Article 226--Writ--Dismissal at admission stage on ground of
laches--Whether valid.
Legislative Assembly--Speaker’s order disqualifying members
under Tenth Schedule--Review by Speaker--Setting aside
disqualification orders--Writ in the nature of class action
challenging review order after ten months--Allegation that
disqualified members continue to hold public of-
fice--Dismissal by High Court on the ground of laches held
unjustified--Analogy of limitation provided under Section
81(1) of People’s Representation Act, 1951 held
inapplicable--Distinction between writs enforcing personal
rights and writs relating to assertion of public rights in
the nature of class action held relevant--Motive and conduct
of petitioner held relevant only for denying costs but not a
justification to refuse examination of question of public
concern on merits.
Doctrine of laches.
Tenth Schedule--Legislative Assembly--Order of Speaker
disqualifying members on the ground of defection--Speaker
whether has implied power to review--Disqualification order.
Article 136--Appeal by special leave--Dismissal of writ
petitions by High Court on the ground of laches--Whether
susceptible to interference.
HEADNOTE:
R.S., R.M. and S.B. were elected as Members of the Goa
Legislative Assembly in the Elections held in November,
1989. Subsequently, R.S. assumed office of Chief Minister
and formed his Council of Ministers including R.M. and S.B.
as Ministers. Thereafter, the appellant (In C.A. 1094/92),
a Member of the Assembly, presented a petition to the
Speaker of the Assembly seeking disqualification of R.S. on
the ground that he had voluntarily given up the membership
of his political party. By its order
821
dated 15.2.91 the Speaker passed an order under Para 6 of
the Tenth Schedule of the Constitution disqualifying R.S. on
the ground of defection. R.S. filed a writ petition before
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the Goa Bench of the Bombay High Court challenging the order
of disqualification and by an interim order the High Court
stayed the operation of the disqualification order. During
the pendency of the writ petition the Speaker was removed
from office and a, deputy speaker was elected in his place
who began functioning as Speaker. R.S. filed an application
before the Acting Speaker seeking review of his
Disqualification order and on 83.91 the Acting Speaker
passed an order, in purported exercise of his power of
review under the Tenth Schedule, setting aside the
Disqualification order dated 15.2.91. Consequently tie writ
petition filed by R.S. challenging his disqualification
order was dismissed as not pressed, by the High Court on
8.1.92 the appellant flied a petition challenging the review
order dated 83.91 passed by the Acting Speaker on the ground
that the Speaker did not have any power to review the
earlier order of disqualification. Without going into the
merits of the case the High Court dismissed the petition at
the admission stage on the ground of laches. The decision
of the High Court was impugned before this Courts.
Subsequently, another member of the Assembly, appellant in
C.& 1096/92, also filed a writ petition challenging the
review order dated 83.91 passed by the Acting Speaker
setting aside the earlier order disqualifying R.S, on
similar grounds. The High Court also dismissed the same at
the admission stage for the same reason, ie. laches.
Against the order dismissing the writ petition an appeal was
preferred in this Court
In the connected appeal (CA 1095/92) the appellant applied
to the Speaker seeking disqualification of R.M. and S.B. on
the ground of defection and by his order dated 13.12.90
Speaker passed the order disqualifying R.M. and S.B. under
the Tenth Schedule. Both of them filed petitions
challenging the disqualification order and by an interim
order the High Court stayed the disqualification orders. In
the meantime, in a manner, similar to that in the case of
R.S., the Acting Speaker by his order dated 7.3.91, in
purported exercise of the review. set aside the orders dated
13.12.90 disqualifying R.M. and S.B. The appellant filed a
petition challenging the orders of review passed by the
Acting Speaker. It was also dismissed by the High Court on
the ground of laches. Against dismissal of the writ
petition an appeal was filed before this Court
822
In appeals to this Court, it was contended on behalf of the
appellants that (1) the mere delay in challenging the
legality of the authority under which respondents continue
to hold public office, after being disqualified as Members
of the Assembly, was not a valid justification for the High
Court to refuse to examine the main question of existence of
power of review in the Speaker acting under the Tenth
Schedule, since the discretion of the High Court under
Article 226 of the Constitution must be exercised
judicially, so as not to permit perpetuation of an
illegality, (2) the doctrine of laches does not apply where
declaration sought is of nullity, in order to prevent its
continuing operation, and laches is not relevant in the
domain of public law relating to public office, where the
purpose is to prevent an usurper from continuing to hold a
public office; (3) the power of review in the Speaker cannot
be implied from the provisions in the Tenth Schedule, and
the only remedy available to the aggrieved person is by
judicial review of the order of the disqualification; and
(4) that the motive and conduct of the petitioners-
appellants in such matters is not decisive or fatal to the
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enquiry claimed in the writ petition, inasmuch as the relief
claimed by them was not for their personal benefit but for
larger public interest and good governance of the State by
persons holding public offices.
On behalf of the respondents it was contended that (1) even
though there is no statutory limitation for filing a writ
petition, yet in a case like the present, the apt analogy is
of an election petition challenging an election, which is to
be filed within 45 days from the date of election of the
returned candidate, under Section 81(1) of the
Representation of the People Act, 1951, to indicate that
unless such a challenge is made promptly the courts would
refuse to examine such a question after the lapse of a
reasonable period; hence petitions filed after ten months of
the date of the order of review made by the Speaker were
rightly rejected on the ground of laches; (2) the doctrine
of laches applies as much to the writ of quo warranto, as it
does to a writ of certiorari; (3) in view of the finality
attaching to the order made by the Speaker under para 6 of
the Tenth Schedule the power of review inheres in the
Speaker for preventing miscarriage of justice, in situations
when the speaker himself is of the view that continuance of
his earlier order of disqualification would perpetuate
injustice; (4) the inherent power of review in the Speaker
must be read in the Tenth Schedule, at least upto 12th
November, 1991 when the Judgment in Kihoto Hollohan was
rendered declaring the availability of judicial
823
review against the Speaker’s order of disqualification made
under para 6 of the Tenth Schedule; (5) only a limited
judicial review being available against the Speaker’s order
of disqualification, as held by the majority in Kihoto
Hollohan, some power of review Inheres in the Speaker even
thereafter to correct palpable errors failing outside the
limited scope of judicial review, and (6) the appellants
were not only associated with R.S. at different times but
also they obtained benefits from him, thus, in view of the
oblique motive coupled with their conduct, the High Court
was justified in refusing to exercise its discretionary
powers under Article 226 of the Constitution at the behest
of the appellants; the power under Article 136 also being
discretionary this Court would also be justified in refusing
to interfere with the discretion so exercised by the High
Court.
Allowing the appeals, this Court,
HELD: 1. The judgment of the High Court that the writ
petitions were liable to be dismissed, merely on the ground
of laches cannot be sustained. [834-C]
2. The exercise of discretion by the Court even where the
application is delayed, is to be governed by the objective
of promoting public interest and good administration; and on
that basis it cannot be said that discretion would not be
exercised in favour of interference where it is necessary to
prevent continuance of usurpation of office or perpetuation
of an illegality. [839-F]
3. In the present case the claim is for the issue of a writ
of quo warranto on the ground that respondents are holding
public offices, having suffered disqualification as Member
of the Assembly subsequent to their election, and one of
them, continues to hold the high public office of Chief
Minister. The relief claimed in the present case in not the
conferment of a personal benefit to the petitioners, but for
cessation of the usurpation of public offices held by
respondents. Thus, the relief claimed by the appellants in
their writ petitions filed in the High Court being in the
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nature of a class action, without seeking any relief
personal to them, should not have been dismissed merely on
the ground of laches. [837 C-D, 839-H, 840-A]
3.1. The motive or conduct of the appellants, as alleged by
the respondents, can be relevant only for denying them the
costs even If their claim succeeds, but It cannot be a
justification to refuse to examine the
824
merits of the question raised therein, since that is a
matter of public concern and relates to the good governance
of the State itself [840 A-B]
4. The remedy of an election petition Is statutory, governed
by the limitation prescribed therein, unlike the remedy
under Article 226 of the Constitution. That apart, the
analogy which is more apposite, is the decision on questions
as to the disqualification of Members in accordance with
Article 103 in the case of a Member of Parliament or Article
192 in the case of a Member of a House of a Legislature of a
State. For raising a dispute, giving rise to any question
whether a Member of a House has become subject to any of the
disqualification mentioned in clause (1) of Article 102 or
191, as the case may be, there is no prescribed limitation,
and so also for challenging the decision rendered under
Article 103 or 192 by a writ petition. The question of the
disqualification of a Member on the ground of defection and
the Speaker’s order thereon, rendered under the Tenth
Schedule, is of a similar nature and not based on the result
of an election which can be challenged only by an election
petition in accordance with the provisions of Representation
of the People Act, 1951. [834 F-H, 835-A]
A.G. v. Proprietor of the Bradford Canal, (1866) L.R. 2
Equity Cases 71, relied on.
Brundaban Nayak.V. Election Commission of India and Anr.,
[19651 3 S.C.R. 53, explained and held inapplicable.
The Lindsay Petroleum Company v. Prosper Armstrong Hurd,
Abram Farewell and John Kemp, (1874) L.R. 5 P.C. 221; The
Moon Mills Ltd. v. M.R. Meher, President, Industrial Court,
Bombay and Ors.,A.I.R. 1967 S.C. 1450; Maharashtra State
Road Transport Corporation v. Shri Balwant Regular Motor
Service Amravati & Ors., [1969] 1 S.C.R. 808; M/s. Tilok-
chand & Motichand & Ors. v. H.B. Munshi & Anr., [1969] 1
S.C.C. 110; Shri Vallabh Glass Works Ltd. & Anr. v. Union of
India & Ors., [1984] 3 S.C.C. 362; M/s Dehri Rohtas Light
Railway Company Ltd. v. District Board, Bhojpur & Ors.,
[1992] 2 S.C.C. 598; Emile Erlanger and Ors. v. The New
Sombrero Phosphate Company and Ors., (1878) 3 Appeal Cases
1218; Anachuna Nwakobi, The Osha of Obosi and Ors. v. Eugene
Nzekwu & Anr., (1964) 1 W.LR. 1019; Everett v. Griffiths,
(1924) 1 K.B. 941; R. v. Stratfort-on-Avon District Council
and Anr. ex parte Jackson, (1985) 3 All E.R. 769 and Caswell
and Anr. v. Dairy Produce Quota Tribunal for England and
Wales, (1990) 2 W.LR. 1320, held inapplicable.
825
5. The Speaker has no power of review under the Tenth
Schedule, and an order of disqualification made by him under
para 6, thereof Is subject to correction only by judicial
review. [841-F]
Khoto Hollohan v. Zachillu and Ors., [1992] Supp. 2 S.C.C.
651, referred to.
Observations in Patel Narshi Thakershi & Ors. v.
Pradyumansinghji Arjunsinghji A.I.R. 1970 S.C. 1273 to the
effect that the power to review is not inherent power and
must be conferred by law either specifically or by necessary
implications, relied on.
5.1.There is no scope for reading in-to the Tenth Schedule
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any of the powers of the Speaker which he otherwise has
while functioning as the Speaker in the House, to clothe him
with any such power in his capacity as the statutory
authority functioning under the Tenth Schedule of the
Constitution. Accordingly any power of the Speaker,
available to him while functioning in the House, is not to
be treated as his power of privilege as the authority under
the Tenth Schedule. [842 G-H, 843-A]
Rule 7(7) of the Members of the Goa Legislative Assembly
(Disqualification on grounds of Defection) Rules, 1986 and
Rule 77 of the Rules of Procedure and Conduct of Business of
the Goa Legislative Assembly held inapplicable.
6. Para 7 has to be treated as non-existent in the Tenth
Schedule from the very inception. As held by the majority
in Kihoto Hollohan judicial review is available against an
order of disqualification made by the Speaker under para 6
of the Tenth Schedule, notwithstanding the finality
mentioned therein. It is on account of the nature of
finality attaching by virtue of para 6, that the judicial
review available against the Speaker’s order has been
labeled as limited in Kihoto Hollohan and the expression has
to be understood in that sense, distinguished from the wide
power in an appeal, and no more. Thus the Speaker’s order
is final being subject only to judicial review, according to
the settled parameters of the exercise of power of judicial
review in such cases. The existence of judicial review
against the Speaker’s order of disqualification made under
para 6 Is Itself a strong indication to the contrary that
there can be no Inherent power of review in the Speaker,
read in the Tenth Schedule by necessary Implication. [845 B-
E]
826
7. There is no merit in the submission that the power of
review inheres in the Speaker under the Tenth Schedule as a
necessary incident of his jurisdiction to decide the
question of disqualification; or that such a power existed
till 12th November, 1991 when the decision in Kihoto
Hollohan was rendered; or at least a limited power of review
inheres in the Speaker to correct any palpable error outside
the scope of judicial review. [845 F-G]
Kihoto Hollohan v. Zachillhu and Ors., [1992] Suppl. 2
S.C.C. 651, explained.
Shivdeo Singh & Ors. v. State of Punjab & Ors., A.I.R. 1963
S.C. 1909 and Grindlays Bank Ltd. v. Central Government
Industrial Tribunal & Ors., [1981] 2 S.C.R. 341,
distinguished.
8. The impugned orders of the High Court, dismissing writ
Petitions are setaside. The orders made by the Acting
Speaker in purported exerciseof power of review are nullity
and liable to be ignored. [847 E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1094 of 1992.
WITH
Civil Appeal No.1095 of 1992.
AND
Civil Appeal No. 1096 of 1992.
From the Judgment and Order dated 4.2.92 & 24.2.92 of the
Bombay High Court in W.P. Nos.11, 8 & 70 of 1992.
R.K. Garg, Ram Jethmalani, V.A. Bobde,Harish N. Salve, K.J.
John, Ms. Deepa Dixit, Rakesh Gosain, Ms. Rani Jethmalani,
P.K. Dev and Ms. Shanta Ramchand for the Appellants.
Ashok Desai, F.S. Nariman, R.F. Nariman, P.H. Parekh, Sunil
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Dogra, J.D. Dwarka Das and S.C. Sharma for the Respondents.
The Judgement of the Court was delivered by
827
VERMA, J. These appeals, by special leave, arise from writ
petition Nos.11 of 1992,8 of 1992 and 70 of 1992, all
dismissed by the Bombay High Court at the Goa Bench merely
on the ground of laches; and they involve for decision the
common question relating to the power of review, if any, of
the Speaker to review his decision on the question of
disqualification of a Member of the House, rendered under
the Tenth Schedule to the Constitution. In those writ
petitions, the orders passed by the Speaker, in purported
exercise of the power of review, setting aside the earlier
orders of disqualification of certain Members made on merits
by the Speaker, were challenged on the ground that the
Speaker has no such power of review. The High Court took
the view, that the writ petitions were filed after
considerable delay, and, therefore, upholding the
preliminary objection, had to be dismissed merely. on the
ground of laches; and, therefore, merits of the contention
that the Speaker had no such power of review was not
considered. The main questions which arise for decision in
these appeals are, therefore, two; namely
(1)LACHES Are the impugned orders of the High
Court dismissing the writ petitions merely on
the ground of laches susceptible to
interference under Article 136 of the
Constitution in the present case; and
(2)POWER OF REVIEW If so, does the Speaker,
acting as the authority under the Tenth
Schedule of the Constitution, have no power of
review, so that any order made by him in
purported exercise of the power of review is a
nullity?
The further question of the consequence and nature of relief
to be granted, would arise only if these questions are
answered in favour of the appellants.
Ravi S. Naik, Ratnakar M. Chopdekar and Sanjay Bandekar were
duly elected Members of the Goa Legislative Assembly in the
elections held in November, 1989. On 25.1.1991, Ravi S.
Naik assumed the office of the Chief Minister of the State
of Goa and he formed his Council of Ministers, which
included Chopdekar and Bandekar as Ministers. On the same
day, i.e. on 25.1.1991, Dr. Kashinath Jalmi, also a Member
of the Legislative Assembly, presented a petition to the
Speaker, Surendra V. Sirsat seeking disqualification of Ravi
S. Naik as a Member of the Legis-
828
lative Assembly on the ground that he had voluntarily given
up the Membership of his political party. On 16.2.1991, the
Speaker, Surendra V. Sirsat passed an order under para 6 of
the Tenth Schedule to the Constitution, disqualifying Ravi
Naik on the ground of defection. On 16.2.1991, Ravi Naik
filed writ petition No.48 of 1991 at the Goa Bench of the
Bombay High Court challenging the order of his
disqualification, made by the Speaker under the Tenth
Schedule to the Constitution. On 18.2..1991, the High Court
passed an interim order in that writ petition staying
operation. of the order of disqualification made by the
Speaker. During the pendency of this writ petition, on
27.2.1991, Simon Peter D’Souza was elected Deputy Speaker of
the Goa Legislative Assembly; on 4.3.1991 Surendra V. Sirsat
was removed from the office of Speaker and the Deputy
Speaker, Simon Peter D’Souza began functioning as the
Speaker in place of Surendra V. Sirsat. The same day, i.e.
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on 4.3.1991, Ravi S. Naik made an application to Simon Peter
D’Souza, the Deputy Speaker functioning as the Speaker of
the Goa Legislative Assembly, for review of the order dated
15.2.1991 of his disqualification made by the Speaker,
Surendra V. Sirsat under the Tenth Schedule. On 8.3.1991,
the Acting Speaker, Simon Peter D’Souza made an order, in
purported exercise of the power of the- review under the
Tenth Schedule, setting aside the order dated 15.2.1991 made
by the Speaker, Surendra V. Sirsat disqualifying Ravi S.
Naik as a Member of the Goa Legislative Assembly.
Thereafter, Writ Petition No.48 1991 filed by Ravi Naik
challenging the order of the his disqualification made by
the Speaker on 15.2.1991 was dismissed as not pressed by
him, on 22.4.1991.
On 8.1.1992, Writ Petition No.11 of 1992 was filed by Dr.
Kashinath Jalmi and Ramakant Khalap challenging the order of
review dated 8.3.1991 passed by the Acting Speaker, inter
alia on the ground that the Speaker did not have any power
to review the earlier order of disqualification made under
the Tenth Schedule to the Constitution of India. The High
Court by the order dated 4.2.1992 upheld the preliminary
objection of Ravi S. Naik that the writ it petition filed
ten months after the date of the impugned order, was liable
to be dismissed at the admission stage on the ground of
laches. This order, dismissing the writ petition for this
reason alone, is challenged in Civil Appeal No. 1094 of
1992.
After the dismissal of writ petition No.11 of 1992, another
Member of the Goa Assembly, Churchill Alemao filed writ
petition No.70 of 1992, also challenging the order of review
dated 8.3.1991 made by the Acting
829
Speaker setting aside the earlier order dated 15.2.1991 made
by the Speaker disqualifying Ravi Naik, on similar grounds.
The High Court dismissed writ petition No.70 of 1992 also at
the admission stage, for the same reason, on the ground of
laches. Civil Appeal No.1096 of 1992 by Churchill Alemao is
against the order dated 24.2.1992 dismissing writ petition
No.70 of 1992.
On 10.12.1990, Ramakant D. Khalap applied to the Speaker,
Surendra V. Sirsat seeking disqualification of Sanjay
Bandekar and Ratnakar Chopdekar as Members of the Goa
Legislative Assembly, for the defection under the Tenth
Schedule. On 11.12.1990, the Speaker served notices on
these Member. On 13.12.1990, Bandekar and Choopdekar filed
writ petition No.321 of 1990 at the Goa Bench of the Bombay
High Court challenging the show cause notices issued to them
by the Speaker. On the same day i.e. on 13.12.1990, the
Speaker, Surendra V. Sirsat made the orders disqualifying
Bandekar and Chopdekar as Members of the Assembly, under the
Tenth Schedule. On 14.12.1990. Writ Petition No.321 of 1990
was amended to challenge the orders of disqualification
dated 13.12.1990 made by the Speaker against Bandekar and
Chopdekar. The Writ Petition was admitted by the High
Court, and an interim order made staying the orders of
disqualification dated 13.12.1990 made by the Speaker.
Unlike the writ petition No.48 of 1991 by Ravi Naik which
was dismissed as not pressed on 22.4.1991 after the order of
review made by the Deputy Speaker, writ petition No.321 of
1990 by Bandekar and Chopdekar is still pending in the High
Court with the interim order made therein subsisting.
In the meantime, in a manner similar to that in the case of
Ravi Naik, the Deputy Speaker functioning as the Speaker, on
applications made to him for the purpose, passed orders on
7.3.1991, purporting to exercise the power of review,
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whereby the orders dated 13.12.1990 made by the Speaker
disqualifying Bandekar and Chopdekar under the Tenth
Schedule have been set aside. This led to the filing of
writ petition No. 8 of 1992 by Ramakant D. Khalap on
7.1.1992 at the Goa Bench of the Bombay High Court,
challenging the orders of the review dated 7.3.1991 passed
by the Acting Speaker. This writ petition also, has been
similarly dismissed merely on the ground of laches on
4.2.1992. Civil Appeal No.1095 of 1992 has, therefore, been
filed against dismissal of writ petition No.8 of 1992.
830
This is how the same questions relating to laches justifying
dismissal of these writ petitions, and the power of review,
if any, of the Speaker under the Tenth Schedule, arise for
decision in these appeals.
The rival contentions may now be mentioned. Shri Ram
Jethmalani for the appellant in C.A. No.1094 of 1992, Shri
Harish Salve for the appellant in C.A. No.1095 of 1992 and
Shri R.K. Garg for the appellant in C.A. No.1096 of 1992
advanced substantially similar arguments, to contend that
dismissal of the writ petitions by the High Court on the
ground of laches is insupportable, in the present context,
where challenge to the order of review made by the Speaker
under the Tenth Schedule is on the ground of nullity, since
the Speaker has no power of review under Tenth Schedule, and
that the order of review being a nullity, must be so
declared. In reply, Shri F.S. Nariman for respondent Ravi
S. Naik in Civil Appeal Nos. 1094 and 1096 of 1992, and Shri
Ashok Desai for respondents Bandekar and Chopdekar in Civil
Appeal No.1095 of 1992, strenuously urged that the exercise
of power under Article 226 of the Constitution being discre-
tionary, the refusal to exercise that power at the instance
of the writ petitioners was a proper exercise of the
discretion, which does not call for any interference by this
court in exercise of its power under Article 136 of the
Constitution. Both the learned counsel, in their reply,
further submitted, that by the very nature of the high
office of the Speaker and the finality attaching to the
order made by the Speaker under para 6 of the Tenth
Schedule, the power of the review inheres in the Speaker for
preventing miscarriage of justice, in situations when the
Speaker himself is of the view that continuance of his
earlier order of disqualification would perpetuate
injustice. It was further submitted by them, in the
alternative, that in view of the limited scope of judicial
review of the Speaker’s order of disqualification made under
para 6 of the Tenth Schedule, as held in the majority
opinion in Kihoto Hollohan v. Zachillhu and Ors., [1992]
Supp. 2 SCC 651, it is implicit that at least a limited
power of review inheres in the Speaker, to correct palpable
errors outside the scope of the limited judicial review
available against the order of disqualification made by the
speaker under the Tenth Schedule. It was urged by them,
that the alleged infirmities in the orders of
disqualification made in the present case by the Speaker
fell within, at least this limited power of review which
inheres in the Speaker. Shri Nariman, as well as Shri
Desai, strongly relied on the majority opinion in Kihoto
Hollohan to support these submissions.
831
The last alternative submission of Shri Nariman was, that in
case there is no power of review in the Speaker under the
Tenth Schedule, as a result of which the orders made by the
Acting Speaker in purported exercise of that power have to
be declared nullity and ignored, then writ petition No.48 of
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1991 by Ravi S. Naik being dismissed as not pressed on
22.4.1991 because the order of his disqualification had been
set aside by the order of review, must be revived along with
the interim stay granted therein to enable Ravi S. Naik to
pursue the remedy which he had invoked, to challenge the
order of his disqualification which is open to judicial
review. This submission of last resort made by Shri
Nariman, was strongly opposed by Shri. R.K. Garg appearing
for the appellant Church Alemao. On the other hand, Shri
Ram Jethmalani appearing for the appellants in C.A. No.1094,
not only did not oppose such a direction being given, but in
his opening address itself suggested this as the equitable
course to adopt. But for the stand taken on this aspect,
there was no difference in the submissions of Shri Garg and
Shri Jethmalani.
Both sides attempted to refer to the facts leading to the
making of the orders of disqualification of the Members, and
the merits thereof However, we do not propose to advert to
them, as we had indicated to the learned counsel at the
hearing, since those aspects will have to be gone into , in
the first instance by the High Court, on the view we are
taking in these appeals and, therefore, we would like to
avoid the likelihood of any possible prejudice to either
side resulting from any reference made by us to the same.
Accordingly, we are confining ourselves only to the facts
and the arguments relating to the aforesaid two questions,
which alone arise before us. We may add, that for the
purpose of these appeals, it has been assumed by both sides
that the Deputy Speaker functioning as the Speaker would
have the powers of the Speaker under the Tenth Schedule
including that of review, if any. The further question
whether the Deputy Speaker, who discharging the functions of
the Speaker, has all the powers of the Speaker under the
Tenth Schedule is, therefore, undisputed for the present
purpose.
We shall now consider the aforesaid two main questions which
arise for decision in the present case. Any further
question arising for decision, in case both these questions
are answered in favour of the appellants, will be considered
thereafter.
832
LACHES-
The High Court has taken the view that the impugned orders
of review having been made by the Acting Speaker on 7th and
8th March, 1991, the writ petitions challenging them filed
on 7.1.1992, 8.1.1992 and 10.2.1992 were highly belated and,
therefore, liable to be dismissed merely on the ground of
laches. It is for this reason that they were dismissed at
the admission stage itself, sustaining the preliminary
objection taken on this ground by Ravi S. Naik, Chopdekar
and Bandekar, in whose favour the orders of review had been
made. The High Court has referred to certain decisions of
this Court for applying the doctrine of laches, and declined
to consider the merits of the main point raised in the writ
petitions, that the Speaker does not have any power of
review acting under the Tenth Schedule. The High Court has
also held as untenable, the explanation given by the writ
petitioners that uncertainty of the law settled only by the
decision of this Court in Kihoto Hollohan (supra) rendered
on 12th November, 1991 was the reason for not filing those
writ petitions earlier. Learned counsel for the appellants
have assailed application of the doctrine of laches in the
present situation, and also contended that if any
explanation was needed for the intervening period, pendency
of the question of constitutional validity of Tenth Schedule
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itself in this Court was sufficient to explain the period up
to the date of the decision, and the writ petitions were
filed soon thereafter. It was also submitted by learned
counsel for the appellants, that the continuance in office
of disqualified persons, even now, provides recurring cause
of action, since the continuance in office without lawful
authority of these persons, one of whom is the Chief
Minister of the State of Goa, is against public policy and
good administration. It was submitted, the Court cannot
decline to examine the validity of the authority under which
they continue to hold office. On this basis it was urged
that the mere delay, if any, in challenging the legality of
the authority under which these three persons continue to
hold office, after being disqualified as Members of the
Assembly, could not be a valid justification for the High
Court to refuse to examine the main question of existence of
power of review in the Speaker acting under the Tenth
Schedule, since the discretion of the High Court under
Article 226 of the Constitution must be exercised
judicially, so as not to permit perpetuation of an
illegality. Shri Jethmalani also submitted, that the
doctrine of laches does not apply where declaration sought
is of nullity, in order to prevent its continuing operation,
and laches is not relevant in the domain of public
833
law relating to public office, where the purpose is to
prevent an usurper from continuing to hold a public office.
Shri Harish Salve adopted these arguments and further
submitted that Dr. Kashinath Jalmi and Ramakant Khalap had
consistently taken the stand, that the Speaker’s order of
disqualification is final and not open to review by anyone.
He submitted, that for this reason no prevarication in their
stand can be attributed to either of them, as has been done
against Churchill Alemao, by the learned counsel for the
respondents, for his support to Ravi Naik during the
intervening period. It was further urged by the learned
counsel for the appellants, that the motive and conduct of
the writ petitioners in such matters is not decisive or
fatal to the enquiry claimed in the writ petition, in as
much as the relief claimed in the writ petition was not for
personal benefit of the writ petitioner but for larger
public interest and good governance of the State of Goa by
persons holding public offices, including that of the Chief
Minister, only by lawful authority.
Both Shri F.S. Nariman and Shri Ashok Desai supported the
Judgment of the High Court, and strenuously urged that the
High Court in exercise of its discretionary power under
Article 226 of the Constitution was justified in refusing to
exercise that power at the behest of the writ petitioners
who were disentitled to grant of the relief on account of
their conduct and motive for filing the writ petition. It
was submitted by them that the writ petitioners, namely,
Churchill Alemao, Dr. Kashinath Jalmi and Ramakant Khalap
are all persons who, at different times, were associated
with Ravi S.Naik as Chief Minister and were also obtaining
benefit from him, which conduct coupled with their motive of
getting more political power to themselves, disentitled them
from claiming the relief. Shri Nariman submitted that the
doctrine of laches applies equally to a writ of quo
warranto, as it does to a writ of certiorari. It was also
submitted by learned counsel for the respondents that the
explanation given for the delay in filing the writ
petitions, challenging the orders of review made by the
Acting Speaker, is facile and untenable It was submitted,
that notwithstanding the pendency of the question of the
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validity of the Tenth Schedule in this Court, writ petitions
were being filed challenging the orders made by the Speakers
under the Tenth Schedule. It was submitted that all the
writ petitioners, in view of their status in life, were
fully aware that the Speaker’s order of review could be
challenged by a writ petition, even before the decision
rendered by this Court on 12th November, 1991
834
in Kihota Hollohan. The main thrust of the argument of the
counsel for the respondents was, that in these circumstances
the High Court was justified in dismissing the writ
petitions at the threshold in exercise of its discretionary
power under Article 226 of the Constitution, and, therefore,
the power under Article 136 of the Constitution also being
discretionary, this Court would be justified in refusing to
interfere with the discretion so exercised by the High
Court.
Having given our anxious consideration to the forceful
submissions of learned counsel for the both sides, we find
ourselves unable to sustain the judgment of the High Court
that the writ petitions were liable to be dismissed, merely
on the ground of laches.
One of the submissions of Shri Nariman was, that even though
there is no period of limitation prescribed by statute for
filing a writ petition, yet in a case like the present, the
apt analogy is of an election petition calling in question
an election, which is required to be filed within 45 days
from the date of election of the returned candidate, as
provided in Section 81(1) of the Representation of the
People Act, 1951, to indicate that unless such a challenge
is made promptly the courts would refuse to examine such a
question after the lapse of a reasonable period. On this
basis, he argued that a writ petition filed after ten months
of the date of the order of review made by the Speaker
acting under the Tenth Schedule, must be treated as unduly
delayed and is liable to rejection on the ground of laches,
as has been done by the High Court in the present case. We
are unable to accept this part of the submission since it is
not an apt analogy.
The remedy of an election petition is statutory, governed by
the limitation prescribed therein, unlike the remedy under
Article 226 of the Constitution. That apart, the analogy
which is more apposite, is the decision on questions as to
the disqualification of Members in accordance with Article
103 in the case of a Member of Parliament or Article 192 in
the case of a Member of a House of a Legislature of a State.
For raising a dispute, giving rise to any question whether a
Member of a House has become subject to any of the
disqualification mentioned in clause (1) of Article 102 or
191, as the case may be, there is no prescribed limitation,
and so also for challenging the decision rendered under
Article 103 or 192 by a writ petition. The question of the
disqualification of a Member on the ground of defection and
the Speaker’s order thereon, rendered under the
835
Tenth Schedule, is of a similar nature and not based on the
result of an election which can be challenged only by an
election petition in accordance with the provisions of
Representation of the People Act, 1951.
The decision by a constitution bench in Brundaban Nayak v.
Election Commission of India and another, [1965] 3 SCR 53
indicates the significance of deciding the question of
disqualification of a Member as soon as it arises, even at
the instance of a citizen, since ’the whole object of
democratic elections is to constitute legislative chambers
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composed of members who are entitled to that status, and if
any member forfeits that status by reason of a subsequent
disqualification, it is in public interest,’............
that the matter was decided.
There is no indication in Brundaban Nayak, that the delay in
raising the question of disqualification provides
justification for refusing to decide the same, and the
emphasis really is on a prompt decision by the competent
authority on the question being raised, since it is not the
interest of the constituency which such a Member represents,
to delay the decision. This decision is an indication that
the authority competent to decide the question of
disqualification must act promptly in deciding the same,
once it is raised even by a citizen, in order to prevent a
disqualified Member from representing the constituency after
incurring a disqualification subsequent to his election, so
long as the question remains a live issue during the tenure
of the Member. This aspect is significant for dealing with
the question of laches in the present case.
In order to justify dismissal of the writ petitions for
laches Shri Nariman placed reliance on certain decisions,
some of which have been referred by the High Court. Shri
Nariman argued that the doctrine of laches applies as much
to the writ of quo warranto, as it does to a writ of
certiorari, and that the oblique motives of the petitioner
together with his conduct may disentitled him to grant of
the relief claimed by such a petition. We now refer to some
of these decisions.
The basic decision for submission on the doctrine of laches,
relied on, is The Lindsay Petroleum Company v. Prosper
Armstrong Hurd, Abram Farewell and John Kemp, 1874 L.R. 5 PC
221 which has been followed in the decisions of this Court
in The Moon Mills Ltd. v. M.R. Meher, President, Industrial
Court, Bombay and Ors., AIR 1967 SC 1450 and Maharashtra
State Road Transport Corporation v. Shri Balwant Regular
Motor Service
836
Amravati & Ors., [1969] 1 SCR 808. In The Moon Mills Ltd, a
writ of certiorari was sought to challenge a decision
affecting the rights of the Petitioner, wherein the question
arose whether the petitioner could be denied the relief on
the ground of acquiescence or laches. In that context it
was observed that the issue of a writ of certiorari is a
matter of sound discretion, and that ’the writ will not be
granted if there is such negligence or omission on the part
of the applicant to assert his right as taken in conjunction
with the lapse of time and other circumstances, causes
prejudice to the adverse party.’ It was observed, that the
exercise of discretion under Article 226 to issue a writ of
certiorari is based on the principle to a great extent,
though not identical with, similar to the exercise of
discretion in the Court of Chancery.’ For this principle,
involving the doctrine of laches in courts of equity,
reference was made to the observation of Sir Barnes Peacock
in Lindsay Petroleum Co. The decision was followed in, and
the principle reitered in Maharashtra State Road Transport
Corporation again in the context of the discretion under
Art. 226 of the Constitution to issue a %Wit of certiorari.
Like all equitable principles, the doctrine of laches
applies where it would be unjust to give a remedy to the
petitioner, who is disentitled to grant of the same by his
conduct or any other relevant circumstances, including the
creation of third party rights during the intervening
period, which are attributable to the laches of the
petitioner.
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Strong reliance was placed on the decision in M/s Tilokchand
Motichand & Ors. v. H.B. Munshi & Anr., [1969] 1 SCC 110,
wherein relief under Article 32 of the Constitution was
refused on the ground of delay, to contend that if delay can
be fatal under Article 32, itself a fundamental right, it is
more so in a petition under Article 226 of the Constitution,
wherein grant of the relief is discretionary. The decision
of this Court in Shri Vallabh Glass Works Ltd. and Anr. v.
Union of India and Ors., [1984] 3 SCC 362 and M/s Delhi
Rohtas Light Railway Company Lid v. District Board, Bhojpur
and Ors., [1992] 2 SCC 598 were also cited on the point. In
Shri Vallabh Glass Words Ltd, a writ petition by way of
alternative remedy was filed after expiry of statutory
period of limitation prescribed for filling suit for the
same claim, and yet that alone was not held to be fatal
taking the view that reasonableness of delay in filing the
writ petition is to be assessed having regard to the facts
and circumstances of the case, since grant of the relief
under Article 226 of the Constitution is a matter of sound
judicial discretion and governed by the doctrine of laches.
837
In M/s Dehri Rohtas Light Railway Company Limited,
Tilokchand Motichand’s case was distinguished and it was
indicated that the test is not to physical running of time’
and ’the real test to determine delay in such cases is that
the petitioner should come to the writ court before a
parallel right is created.’
It is significant that all these decisions relate to
enforcement of personal rights, wherein a writ of certiorari
was claimed for quashing some decision adverse to the
petitioner and neither of them related to assertion of a
public right in the nature of a class action. In the
present case the claim is for the issue of a writ of quo
warranto on the ground that Ravi S. Naik, Chopdekar and
Bandekar are holding public office, having suffered
disqualification as Member of the Assembly subsequent to
their election, and of them, Ravi S. Naik continues to hold
the high public office of Chief Minister of Goa. The relief
claimed in the present case is not the conferment of a
personal benefit to the petitioners, but for cessation of
the usurpation of public offices held by these persons, if
the contention of the petitioners be right that orders of
review setting aside the earlier orders of disqualification
made by the Speaker under the Tenth Schedule are nullity
The decision of the Privy Council in the Lindsay Petroleum
Company was followed by the House of Lords in Emile Erlanger
and Ors. v. The New Sombrero Phosphate Company and Ors.,
[1878] 3 Appeal Cases 1218 wherein reliance on the doctrine
of laches by Courts of Equity for refusing relief where it
would be practically unjust to grant the same, was
reiterated. It was also reiterated that two circumstances
always important in such cases are the length of the delay
and the nature of the acts done during the interval, which
might affect the justice of the cause.
Once again this principle was reiterated by the Privy
Council in Anachuna Nwakobi, The Osha of Obosi and Ors. v.
Engene Nzekwu and Anr., [1964] 1 WLR 1019 quoting the same
passage from The Lindsay Petroleum Company.
None of these cases relate to the writ of quo warranto and
in them the relief claimed was only for the personal benefit
of the claimant. We are not persuaded to hold that on the
basis of these decisions, some of which are referred by the
High Court, the writ petitions in the present case could
have been dismissed merely on the ground of laches of the
petitioners.
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838
We would now refer to the contention of Shri Nariman that
this principle attracting the doctrine of laches equally
applies to a writ of Quo Warranto, sought in the present
case. For this purpose, Shri Nariman placed reliance on the
decision in Everett v. Griffiths, [1924] 1 K.B. 941 at 959
in addition to Halsbury’s Law of England, Fourth Edition,
Reissue, Volume 16, Para 926.
In Halsbury’s Law of England the statement of law is based
primarily on the decision of the Privy Council in The
Lindsay Petroleum Company and those following it. We have
already indicated the inapplicability of those decisions in
the present case. At the same place one of the decisions
referred to, in foot note 3 of para 926, is A.G. v.
Proprietors of the Bradford Canal (1866) LR 2 Equity Cases
71) for the proposition that "Laches is not imputable to the
Crown or to the Attorney General suing on behalf of the
public.’ In this decision distinction was drawn between the
claim on behalf of the public and that by an individual
plaintiff indicating that even though delay or laches may be
attributable to an individual plaintiff, it may not be so to
an action brought on behalf of the public. This is more so,
when the grievance made is that a person continues to hold a
public office without the authority of law.
Shri Nariman laid great stress on Everett v. Griffuths,
(1924) 1 K.B. 941 at page 959 where it is stated:
"It is plain, however, that in quo warranto
proceedings the Court can and will inquire
into the conduct and motives of the relator."
Reference is made to a passage from Halsbury’s Laws of
England and some earlier decisions which have been referred
for treating the point as well settled. These observations
were made after examining the claim on merits, and in view
of the fact that the plaintiff was known for his frequent
persistent and fruitless litigation proceedings, having
commenced primarily with the motive of resentment. In spite
of these strong observations in the judgment about the
conduct and motive of the plaintiff the court did not refuse
to go into the points raised, for that reason alone. In our
opinion this decision can not persuade us to hold that the
dismissal at the admission stage of the present petitions by
the High Court, on the ground merely of laches can be
sustained, when the alleged usurpation of the public
offices, including that of the Chief Minister of the State
of Goa, continues.
839
Reference was made by Shri Nariman as well as Shri Ashok
Desai to Rules 1 and 4 of Order 53 of the Rules of Supreme
Court and Section 30 of the Supreme Court Act, 1981
(England) wherein limitation is prescribed for application
for judicial review and delay in applying for relief ’LS a
ground for denying the relief, unless the Court considers
that there is good reason for extending the period of making
the application. It was urged that these provisions are
substantially the same as the earlier English Practice
according to which, as held in Everett v. Griffuths (supra)
the order is not issued as of course, and the conduct and
motives of the applicant may be enquired into. Reference
was also made to R. v. Stratford-on-Avon District Council
and Anr., ex parts Jackson (1985) 3 All ER 769 which was
followed by the House of Lords in Caswell and Another v.
Dairy Produce Quota Tribunal for England and Wales [1990] 2
WLR 1320.
In our opinion, the position remains the same. Emphasis in
these decisions is on public interest and good
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administration, and the jurisdiction of the Court to extend
time in suitable cases for making such an application. In
Caswell, the House of Lords took into account the larger
public interest for the view that the interest of good
administration required non-interference with the decision
which was challenged after a lapse of a considerable time,
since any interference at that stage, when third party
interests had also arisen, would be detrimental to good
administration.
In our opinion the exercise of discretion by the court even
where the application is delayed, is to be governed by the
objective of promoting public interest and good
administration; and on that basis it cannot be said that
discretion would not be exercised in favour of interference
where it is necessary to prevent continuance of usurpation
of office or perpetuation of an illegality.
We may also advert to a related aspect. Learned counsel for
the respondents were unable to dispute, that any other
member of the public, to whom the oblique motives and
conduct alleged against the appellants in the present case
could not be attributed, could file such a writ petition
even now for the same relief, since the alleged usurpation
of the office is continuing, and this disability on the
ground of oblique motives and conduct would not attach to
him. This being so, the relief claimed by the appellants in
their writ petitions filed in the High Court being in the
nature of a class action, without seeking any relief
personal to them, should not
840
have been dismissed merely on the ground of laches. The
motive or conduct of the appellants, as alleged by the
respondents, in such a situation can be relevant only for
denying them the costs even if their claim succeeds, but it
cannot be a justification to refuse to examine the merits of
the question raised therein, since that is a matter of
public concern and relates to the good governance of the
State itself
Shri R.K. Garg submitted that laches of the appellants can
not legitimise usurpation of office by Ravi S. Naik,
Chopdekar and Bandekar; and Shri Jethmalani submitted that
manifest illegatlity will not be sustained solely on the
ground of laches when it results in continuance in a public
office of a person without lawful authority. The fact that
the situation continues unaltered, since these persons
continue to hold the public offices, to which they are
alleged to be disentitled, is in our opinion sufficient to
hold that the writ petitions ought not to have been
dismissed merely on the ground of laches at the admission
stage, without examining the contention on merits that these
offices including that of the Chief Minister of the State,
are being held by persons without any lawful authority. The
dismissal of the writ petitions by the High Court merely on
this ground can not, therefore, be sustained.
The further question now is of the availability of power of
review in the Speaker under the Tenth Schedule.
POWER OF REVIEW
The challenge to the orders dated 7th and 8th March, 1991
made by the Acting Speaker under the purported exercise of
power of review, setting aside the earlier orders of the
Speaker disqualifying Ravi S. Naik, Chopdekar and Bandekar
under the Tenth Schedule, is made by the appellants on the
ground that the Speaker does not have any power of review
under the Tenth Schedule. It was stated in Patel Narshi
Thakershi and Ors. v. Pradyumansinghji Arjunsinghji, AIR
1970 SC 1273, thus
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"It is well settled that the power to review
is not an inherent power. It must be
conferred by law either specifically or by
necessary implication."
This position is not disputed before us. Admittedly, there
is no express provision conferring the power of review on
the Speaker in the
841
Tenth Schedule. The only question therefore, is whether the
Speaker acting as the authority under the Tenth Schedule has
the power of review by necessary implication, empowering him
to set aside the earlier order of disqualification made by
him on merits.
On behalf of the appellants it was contended that such a
power of review in the Speaker can not be implied from the
provisions in the Tenth Schedule, and the only remedy
available to the aggrieved Member is by judicial review of
the order of disqualification. In reply it was contended on
behalf of the respondents, that the power of review inheres
in the Speaker under the Tenth Schedule, in view of the
finality attaching to the order made under.para 6 of the
Tenth Schedule. It was submitted that this inherent power
of review in the Speaker must be read in the Tenth Schedule,
at least up to 12th November, 1991 when the Judgment in
Kihoto Hollohan was rendered declaring the availability of
judicial review against the Speaker’s order of
disqualification made under para 6 of the Tenth Schedule.
It was further submitted by learned counsel for the
respondents, that only a limited judicial review being
available against the Speaker’s order of disqualification,
as held by the majority in Kihoto Hollohan, some power of
review inheres in the Speaker even thereafter to correct
palpable errors falling outside the limited scope of
judicial review. It was then submitted, that the defects in
the orders of disqualification made by the Speaker in the
present case, which were corrected by review, were such
defect which come within the ambit of the limited power of
review available to the Speaker in addition to availability
of judicial review as declared in Kihoto Hollohan. Both
sides referred to the merits of the orders of dis-
qualification made by the Speaker but we refrain from
adverting to this aspect as indicated earlier, in view of
the conclusion reached by us that the Speaker has no power
of review under the Tenth Schedule, and an order of
disqualification made by him under para 6 is subject to
correction only by judicial review as held in Kihoto
Hollohan. Accordingly, the alleged defects would require
examination by judicial review in the writ petitions filed
in the High Court challenging the orders of
disqualification.
Shri Nariman contended that the power of review inheres in
the Speaker under the Tenth Schedule as a necessary incident
of his otherwise plenary jurisdiction to decide the question
of disqualification. He submitted that according to the
majority in Kihoto Hallohan only ’limited scope of judicial
review’ is available, and, therefore, the power of review
842
inheres in the Speaker to review his own orders on grounds
analogous to those in Order 47, Rule 1, Code of Civil
Procedure. In support of this submission Shri Nariman placed
reliance on the decisions in Shivdeo Singhs and Ors. v.
State of Punjab and Ors., AIR 1963 SC 1909 and Grindlays
Bank Ltd. v. Central Government Industrial Tribunal and Ors.
[1981] 2 SCR 341. Another limb of Shri Nariman’s
submission is that the majority opinion in Kihoto Hollohan
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does not declare para 7 of the Tenth Schedule to be
unconstitutional from the inception, and Article 13 having
no application to a constitutional amendment, the existence
of para 7 in the Tenth Schedule till the judgment was
rendered in Kihoto Hollohan on 12th November, 1991 must be
accepted, and the provisions in the Tenth Schedule,
including para 7 therein, must be examined for determining
the implied power of review in the Speaker till 12th
November, 1991. On this basis, it was submitted that the
finality declared in para 6 of the Tenth Schedule coupled
with the ouster of judicial review in para 7 re-enforces
existence of the implied power of review in the Speaker at
least till 12th November, 1991, prior to which the
impugned orders of review were made in the present case. A
further submission made by Shri Nariman was that by virtue
of para 6(2) read with para 8 of the Tenth Schedule, the
general rules of procedure as well as Rule 7(7) of the
Members of the Goa Legislative Assembly (Disqualification on
ground of Defection) Rules, 1986 applied, under which the
Speaker ordinarily has the power of review. In this
connection, reference was made particularly to Rule 77 of
the Rule of Procedure and Conduct of Business of the Goa
Legislative Assembly, regarding breach of privilege which
enables the Speaker to reconsider his earlier decision, and
Rule 7(7) of the Members of the Goa Legislative Assembly
(Disqualification on grounds of defection) Rules, 1986,
relating to the procedure. It was submitted that these
general rules relating to Speaker’s power while dealing with
a breach of privilege can be read to confer an express
power of review.
The last limb of Shri Nariman’s contention may be disposed
of, at the outset. There is no scope for reading into the
Tenth Schedule any of the powers of the Speaker which he
otherwise has while functioning as the Speaking in the
House, to clothe him with any such power in his capacity as
the statutory authority functioning under the Tenth Schedule
of the Constitution. This is well settled by the decisions
of the Court relating to Speaker’s orders under the Tenth
Schedule. Accordingly, any power of the Speaker, available
to him while functioning in the House, is not to be
843
treated as his power or privilege as the authority under
the Tenth Schedule.
The majority opinion in kihoto Hollohan was pressed into
service by Shri Nariman as well as Shri Ashok Desai to
support several aspects of their submissions. We may now
refer to that opinion.
In Kihoto Hollohan there was no difference between the
majority and minority opinions on the nature of finality
attaching to the Speaker’s order of disqualification made
under para 6 of the Tenth Schedule, and also that para 7
therein was unconstitutional in view of the non-compliance
of the proviso to clause 2 of Article 368 of the
Constitution, by which judicial review was sought to be
excluded. The main difference in the two opinions was, that
according to the majority opinion this defect resulted in
the constitution standing amended from the inception with
insertion of the Tenth Schedule minus para 7 therein, while
according to the minority the entire exercise of
constitutional amendment was futile and an abortive attempt
to amend the constitution, since Para 7 was not severable.
According to the minority view, all decisions rendered by
the several Speakers under the Tenth Schedule were,
therefore, nullity and liable to be ignored. According to
the majority view, para 7 of the Tenth Schedule being
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unconstitutional and severable, the Tenth Schedule minus
para 7 was validly enacted and, therefore, the orders made
by the Speaker under the Tenth Schedule were not nullity but
subject to judicial review. On the basis of the majority
opinion, this Court has exercised the power of judicial
review over the orders of disqualification made by the
speakers from the very inception of the Tenth Schedule, and
the exercise of judicial review has not been confined merely
to the orders of disqualification made after 12th November,
1991 when the judgment in Kihoto Hollohan was rendered.
Venkatachaliah, J (as he then was) wrote the majority
opinion and, thereafter, on this premise, exercised the
power of judicial review over orders of disqualification
made prior to 12.11.1991. The basic fallacy in the
submission made on behalf of the respondents that para 7
must be treated as existing till 12th November, 1991 is that
on that view there would be no power of judicial review
against an order of disqualification made by the Speaker
prior to 12th November, 1991 since para 7 in express terms
totally excludes judicial review.
Accepting the submission of learned counsel for the
respondents that para 7 must be read in the Tenth Schedule
till 12th November, 1991 when
844
the judgment in Kihoto Hollohan was rendered, for which
submission they place reliance on the majority opinion in
Kihoto Hollohan, would amount to taking a view contrary to
the decision in Kihoto Hollohan itself, as indicated.
At one stage, Shri Nariman also attempted to read the
majority opinion in Kihoto Hollohan as not expressly
declaring para 7 in the Tenth Schedule as unconstitutional,
adding that such a declaration was made only in the minority
opinion which declared the entire Tenth Schedule to be
unconstitutional. We are unable to read the majority
opinion in this manner. Any attempt to find support for the
submissions of the respondents, in the majority opinion in
Kihoto Hollohan, is futile.
The Constitution Bench decision in Shivdeo Singh and Ors. v.
State of Punjab and Ors. (supra) is distinguishable and of
no assistance to the respondents in the present case. That
was a case, wherein the High Court had exercised its power
in a second writ petition filed under Article 226 of the
Constitution by a person who was not made a party in the
earlier writ petition, the order made in which was adverse
to him. This court held that the second writ petition by
such a person was maintainable, and the High Court had not
acted without jurisdiction in reviewing its previous order
at the instance of a person who was not a party to the
previous writ proceedings. That decision has no application
in this situation.
Strong reliance was placed by Shri Nariman as well as Shri
Ashok Desai on the decision of a two Judge bench in
Grindlays Batik Ltd. It was submitted by learned counsel,
that in the present case the defects in the orders of
disqualification fell in the first of the two categories
mentioned at page 347 (SCR), to which extent there is
inherent power of review in the Speaker. It may be
mentioned that the decision in Patel Narshi Thakershi & Ors.
v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 is
referred and distinguished at page 347 SCR on the facts of
that case. In that decision the question was, whether the
Industrial Tribunal constituted under Section 7A of the
Industrial Disputes Act, 1947 had the power to set aside an
exparte award made by it. It was held with the aid of Rule
24(b), Industrial Disputes (Central) Rules, 1957 that the
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Tribunal had the power of a civil court under Order XVII of
the Code of Civil Procedure relating to grant of
adjournments and therefore, as a necessary corollary the
power under Order IX, Rule 13 was attracted to enable the
Tribunal to set aside an ex
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parte award. In our opinion, the decision in Grindlays Bank
Ltd., wherein certain statutory rules attracted the power
under Order XVII read with Order IX, Rule 13 of the Code of
Civil Procedure in the Tribunal to set aside an ex parte
award, is clearly distinguishable and is of no assistance in
the present case.
The power of review which, it is suggested by counsel for
the respondents, inheres in the Speaker by necessary
implication has to be found in the provisions made in the
Tenth Schedule alone, and not elsewhere. Para 7 has to be
treated as non-existent in the Tenth Schedule from the very
inception, as earlier indicated. As held by the majority in
kihoto Hollohan, judicial review is available against an
order of disqualification made by the Speaker under para 6
of the Tenth Schedule, notwithstanding the finality
mentioned therein. It is on account of the nature of
finality attaching by virtue of para 6, that the judicial
review available against the Speaker’s’ order has been
labeled as limited in para 110 (at page 711 of SCC) of the
decision in Kihoto Hollohan? [1992] Supp 2 SCC 651, and the
expression has to be understood in that sense distinguished
from the wide power in an appeal, and no more. As held in
Kihoto Hollohan, the Speaker’s order is final being subject
only to judicial review, according to the settled parameters
of the exercise of power of judicial review in such cases,
which it is not necessary to elaborate in the present
context. The existence of judicial review against the
Speaker’s order of disqualification made under para 6 is
itself a strong indication to the contrary that there can be
no inherent power of review in the Speaker, read in the
Tenth Schedule by necessary implication. The need for
correction of errors in the Speaker’s order made under the
Tenth Schedule is met by the availability of judicial review
against the same, as held in Kihoto Hollohan.
In our opinion there is no merit in the submission that the
power of review inheres in the Speaker under the Tenth
Schedule as a necessary incident of his jurisdiction to
decide the question of disqualification; or that such a
power existed till 12th November, 1991 when the decision in
Kihoto Hollohan was rendered; or at least a limited power of
review inheres in the Speaker to correct any palpable error
outside the scope of judicial review.
CONSEQUENCE
On the above view taken by us, the orders dated 7th and 8th
March, 1991 made by the Acting Speaker in purported exercise
of the power of
846
review are liable to be declared nullity and to be ignored,
with the result that the order dated 13th December, 1990
disqualifying Chopedekar and Bandekar and dated 15th
February, 1991 disqualifying Ravi S.Naik as Members of Goa
Legislative Assembly would continue to operate.
Writ petition No.321 of 1990 filed by Chopdekar and Bandekar
challenging the orders of their disqualification is pending
in the High Court wherein an interim order staying the
operation of their orders of disqualification is subsisting.
Chopdekar and Bandekar can pursue that remedy to challenge
their disqualification and no further order is required to
be made by this Court for that purpose.
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However, writ petition No.48 of 1991 which was filed in the
High Court by Ravi S. Naik challenging his disqualification,
wherein also an interim order was made staying the operation
of the order of his disqualification, was not pressed by
Ravi S.Naik after the order in purported exercise of power
of review was made in his favour on 8th March, 1 991 and,
therefore, that writ petition was dismissed as not pressed
on 22.4.1991. The question is of the order, if any, required
to be made by this Court in this situation.
Shri Ram Jethmalani appearing for the appellants in C.A.
No.1094/92 suggested that, in all fairness writ petition
No.48 of 1991 should be revived in the High Court to enable
Ravi S.Naik to pursue his remedy of seeking judicial review
against his disqualification. On the other hand, Shri R.K.
Garg, learned counsel for the appellant in Civil Appeal
No.1096/92 opposed the making of such an order. Both the
learned counsel, however. submitted that the interim order
of stay made therein would not revive even if that writ
petition is revived and the High Court will have to consider
Afresh the question of making an interim order, at the
behest of Ravi S. Naik. On the other hand, Shri F.S.
Nariman appearing for Ravi S. Naik in both these appeals
submitted that it would be just in the circumstances of the
case, to revive writ petition No.48 of 1991 for decision on
merits by the High Court and the interim order of stay
should also enure to the benefit of Ravi S. Naik during the
pendency of the writ petition, more so when he is the Chief
Minister of the State and refusal of stay would result in
uncertainty in the State.
Having given our anxious consideration to the matter we have
no doubt that the fact to Ravi S. Naik being the Chief
Minister of the State
847
of Goa is a wholly irrelevant circumstance for this purpose.
All the same an order which would be just and proper to make
in the circumstances of this case has to be made, taking
into account also the fact that the law was declared and
came to be settled only by the decision of this Court in
Kihoto Hollohan, after making of the orders of review by the
Acting Speaker in the present case, where after writ
petition No.48 of 1991 was dismissed as not pressed. We
have no doubt that Article 142 of the Constitution enables
us, if necessary, to enlarge the powers of this Court for
making an order which would be just in the facts and
circumstances of this case.
In our opinion, it would be appropriate to revive writ
petition No.48 of 1991 for hearing on merit by the High
Court as suggested even by Shri Ram Jethmalani, and to also
order interim stay of the operation of the order of
disqualification dated 15.2.1991 made by the Speaker, which
was the situation prevailing till that writ petition was
dismissed as not pressed. It is, however, necessary that
writ petition No.48 of 1991 and also writ petition No.321 of
1990 should be heard and disposed of at the earliest, on
account of their expediency.
RELIEF
Accordingly, we allow these appeals in the following manner
(1) The impugned orders of the High Court, dated 4.2.1992
dismissing writ petition No.11 of 1992; dated 24.2.1992
dismissing writ petition No.70 of 1992; and dated 4.2.1992
dismissing writ petition No.8 of 1992 are set aside;
(2) Writ petition Nos.11 of 1992, 70 of 1992 and 8 of 1992
are allowed declaring that orders dated 7.3.1992 and
8.3.1992 made by the Acting Speaker in purported exercise of
power of review are nullity and liable to be ignored.
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(3) Consequently, orders dated 13.12.1990 made by the
Speaker disqualifying Ratnakar Chopdekar and Sanjay Bandekar
continue to operate and writ petition No.321 of 1990 pending
in the High Court has to be heard and decided on merits, in
accordance with law;
(4) Similarly, order dated 15.2.1991 made by the Speaker
disqualifying Ravi S. Naik continues to operate and writ
petition No.48 of 1991 filed in the High Court by him is
revived by setting aside the High Court’s order
848
dated 24.2.1991 dismissing that writ petition as not
pressed. The High Court will proceed to decide that writ
petition also on merits, in accordance with law-,
(5) The interim order staying the order of disqualification
in writ petition No.48 of 1991 is revived. However, the
parties would be at liberty to apply to the High Court for
modification or cancellation of the said interim order or
for any other interim relief or direction, if so advised;
(6) The High Court should hear and dispose of the writ
petition No.48 of 1991 itself on merits as expeditiously as
possible, preferably by 30th April, 1993;
(7) Writ Petition No321 of 1990 filed by Ratnakar M.
Chopdekar and Sanjay Bandekar pending in the High Court be
also heard and disposed of as expeditiously as possible,
preferably by 30th April, 1993.
(8) Parties are directed to appear at the Goa Bench of the
Bombay High Court on 6th April, 1993, without any further
notice, for obtaining further directions in this behalf.
(9) In the circumstances of the case, the parties will bear
their own costs.
T.N.A.
Appeals allowed.
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