Keshab Gogoi Vs Hon''ble Speaker, Assam Legislative Assembly and Others

1. This appeal is directed against the order of learned single Judge dated 9.3.94 in Civil Rule No. 968 of 1994. It may be stated that at the initial stage, the learned single judge considered the matter and held that mere notice for show cause does not give cause of action to the Petitioner to invoke the writ jurisdiction of this Court and accordingly petition was disposed of directing the Respondent No. 1 viz. Speaker, Assam Legislative Assembly to grant further time to the Petitioner for the purpose of reply to the show cause notice for alleged violation of the whip of the party in the Assembly and thereby attracting the provisions of 10th Schedule to the Constitution.

2. The case of the Appellant-Petitioner is that he was one of the Seniormost Congress (I) leaders of the State and has held several posts in different cabinets and was also one of the former Chief Ministers of Assam, The Appellant-Petitioner was a Minister in December, 1992 and due to serious differences between him and Respondent No. 2, he was dismissed as a Minister. The further case of the Appellant is that Respondent No. 2 would politically gain if the Appellant-Petitioner would be disqualified from the membership of the House under the provisions of the 10th Schedule to the Constitution.

3. On 15.10.93 a no-confidence motion sponsored by the opposition against the present Ministry headed by the Respondent No. 2 was taken up for discussion and it was ultimately put to vote. The Speaker of the Assam Legislative Assembly, Respondent No. 1, asked the members in support of the motion to stand up and most of the opposition members stood up in favour of the motion and the Appellant Petitioner alongwith his colleagues belonging to the Congress (1) party were seated. The writ Petitioner-Appellant has alleged that after the head count by the members of the staff of the Assembly, he alongwith others could see that not more than 50 members had stood up in favour of the motion, As the total strength of the Legislative Assembly was 126 members, the writ Petitioner-Appellant could understand that the motion was defeated. A specific statement in the memo of appeal has been made that the Appellant understood that his action in remaining seated when the Speaker asked those who were in favour of the motion to stand up amounted to his voting against the motion. The Speaker announced that no confidence was defeated and result was 50 for the motion and 68 against the motion.

4. According to Appellant, to his utter shock and surprise a notice dated 25.1.94 issued by the Secretary of the Legislative Assembly, Respondent No. 3 was served on him at Assam Bhavan, New Delhi on 15.2.94 intimating him that a proceeding for disqualification under the 10th Schedule read with the Members of Assam Legislative Assembly (Disqualification on ground of Defection) Rules, 1986, for short ''the Rules'', has been drawn up by the Speaker against the writ Petitioner-Appellant on the basis of a complaint filed by the leader of the Assam Congress (I) Legislative Party, Respondent No. 2 and asking the writ Petitioner-Appellant to show cause within 10 days. Alongwith the notice, a copy of the complaint petition with all enclosures were also forwarded. The notice and the complaint petition and other documents have been annexed as Annexure-1 and 2 to the memo of appeal. At that time the Appellant-writ Petitioner was at Delhi for treatment of his cardiac disease As the Time fixed for submission of the reply had expired before it was received by the writ Petitioner-Appellant, the Appellant on the same day sent a telegram seeking 3 months time for submission of show cause and thereafter a letter dated 18.2.94. A photocopy of the medical certificate issued by the cardiologist advising rest on medical ground of the writ Petitioner-Appellant was also sent. In reply, the Secretary of the Legislative Assembly, Respondent No. 3 informed the writ Petitioner-Appellant that the Speaker granted only 15 days time to show cause. Again, the writ Petitioner-Appellant by letter dated 28.2.94 prayed for extension of time and according to the writ Petitioner-Appellant till date no reply has been received either from the Respondent No. 1 or from Respondent No. 3. Copies of the letters are available at Annexure 6 and 7 to the memo of appeal. Thereafter, the writ petition in question was filed which was disposed of by the impugned order by the learned single judge.

5. For the purpose of deciding the present dispute Clause (b) of sub-para (1) of para 2 of the 10th Schedule of the Constitution is relevant. It may be stated that para 8 of the 10th Schedule to the Constitution empowers the Speaker of a House to make rules for giving effect to the provisions of the said Schedule and accordingly the Rules have been framed. Rules 6, 7 and 8 of the Rules are relevant for the present purpose.

6. The relevant portion of Clause (b) of sub-para (1) of para 2 of the 10th Schedule to the Constitution is reproduced below:

(1) Subject to provisions of paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of House:

(a) ...

(b) If he votes or abstains from voting in such House contrary to any direction issued by the Political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

Explanation:- ...

7. Rule 6(1) of the Rules provides that no reference to any question as to whether a member has become subject to disqualification under 10th Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of Sub-rule (2) and (3). The Sub-rule (4) of Rule 6, inter alia, provides that the Petitioner shall satisfy himself before making any petition in relation to any member that there are reasonable grounds for believing that a question has arisen as to whether such member has become subject to disqualification under the 10th Schedule. The Sub-rule (5) of Rule 6 is relevant and is quoted below:

(5) Every petition

(a) shall contain a concise statement of the material facts on which the Petitioner relies; and (b) shall be accompanied by copies of the documentary evidence, if any, on which the Petitioner relics and where the Petitioner relies on any information furnished to him by any person, a statement containing the name and address of such persons and the gist of such information as furnished by each Such person.

According to Sub-rule (6) of Rule 6 of the Rules every petition shall be signed by the Petitioner and verified in the manner laid down in the CPC for verification of pleadings and Sub-rule (7) provides that every annexure to the petition shall be signed in the same manner as the petition.

7. Sub-rules 1, 2, 3 and 4 of Rule 7 of the Rules which are relevant for the purpose of this case are quoted herein below:

7. (1) On receipt of petition under Rule 6 the Speaker shall consider whether the petition complies with the requirements of that rule.

(2) If the petition does not comply with the requirements of Rule 6, the Speaker shall dismiss the petition and intimate the Petitioner accordingly.

(3) If the petition complies with the requirements of Rule 6, the Speaker hall cause copies of the petition and of the annexure thereto to be forwarded:

(a) to the member in relation to whom the petition has been made; and

(b) where such member belongs to any Legislative Party, and such petition has not been made by the Leader thereof, also to such Leader and such member of Leader shall, within seven days of the receipt of such copies, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the Speaker.

(4) After considering the comments, if any, in relation to the petition, received under Sub-rule (3) within the period allowed (whether originally or on extension under that sub-rule), the Speaker may either proceed to determine the question or, is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the petition to the Committee for making a preliminary inquiry and submitting a report to him.

8. Mr. P.K. Goswami, learned Counsel for the Appellant-writ Petitioner has urged that on the basis of allegations made in the petition with the annexures of Respondent No. 2 before the Speaker, Respondent No. 1 no prima facie case has been made out under paragraph 2(1) (b) of the 10th Schedule to the Constitution and as such no reasonable person properly instructed in law would have issued the impugned notice as the condition precedent was not present; that as there is no prima facie case, the Speaker has no jurisdiction to issue the impugned notice; that the question of jurisdiction can be agitated before this Court at this stage and that there was malice in law and also colourable exercise of powers in issuing the impugned notice.

9. Mr. Bhuyan, learned Advocate General representing the Respondents has urged that judicial review at this stage is not available or permissible; that the present petition is not maintainable and misconceived at the present stage and that no right of the Petitioner-Appellant has been affected at this stage.

10. The validity of the 10th Schedule to the Constitution and the powers of the court were considered by the apex court in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, The apex court up-held the constitutional validity of the 10th Schedule to the Constitution and the view of the majority expressed through Hon''ble Mr. Justice Venkatachaliah (as his Lordship then was) was that the Speaker or the Chairman acting under para 6(1) of the 10th Schedule to the Constitution is a Tribunal and in para 101 of the judgment reported in S.C.C. it was held that a finality clause in para 6 of the 10th Schedule does not completely exclude the jurisdiction of the court under Articles 136, 226 and 227 of the Constitution, but it does have the affect of limiting the scope of the jurisdiction. According to their Lordships, the principle that is applied by the court is that inspite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority and such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of law conferring the authority to take such an action, It was also held that it will also be ultra vires the powers conferred on the authority if it is vitiated by malafide or is colourable exercise of power based on extraneous and irrelevant consideration. According to their Lordships while exercising the Certiorari jurisdiction, the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. It was also held that an ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action, but precludes (sic) challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority, because such an action cannot be said to be an action without jurisdiction. It was further held that an ouster clause attaching finality to determination, therefore, does oust Certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by Certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of principle of natural justice. In para 109 of the judgment as reported in the S.C.C. it was finally held after referring to curlier paragraphs of the judgment and to the nature of function that is exercised by the Speaker or Chairman under para 6 of the 10th Schedule of the Constitution that the scope of judicial review under Article 136 and 226 and 227 of the Constitution in respect of an order passed by the Speaker or Chairman under the said para 6 of the 10th Schedule of the Constitution would be confined to jurisdictional errors only i.e. infirmities based on violation of constitutional mandate, malafide, non-compliance with the rules of natural justice and perversity.

11. Paragraph 110 of the majority judgment of the case reported in SCC is quoted below, as it is necessary for our present purpose:

110 - in view of limited scope of judicial review that is available on account of finality clause in paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, a judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timed action would not be permissible, nor would interference be permissible at an interlocutory stage of the proceeding. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceeding or such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequences.

The term ''quia timet'' is explained by Mr. Goswami relying on Halsburry''s Vol. 24 para 935. In para 935 of Halsburry''s Laws of England it is stated that the court has jurisdiction to grant damages in lieu of an injunction not only where the act complained of has been done and there is an Intention to continue it, but also in a quia timet action, where injury is merely threatened and no wrongful act has yet been committed.

Mr. Goswami has also drawn our attention to Wharton''s 14th Edn. where the expression at page 831 "quia timet bill" finds place and it is explained as a bill filed for the purpose of quieting a present apprehension of a probable future injury to property. The expression ''quia timet'' is also explained in Stroud''s Dictionary 5th Edn. 213 as an action brought to prevent wrong that is apprehended.

From the above meanings, we are of the view that the expression ''quia timet'' as stated in the decision of apex court in the above para would mean an action brought to prevent a wrong that is apprehended. Therefore, if the impugned notice of the Speaker creates only in apprehension in the mind of the. Appellant-Petitioner that a wrongful action is going to be taken against him under 10th Schedule to the Constitution and no decision has been taken by the Speaker causing the injury to the Appellant-Petitioner, judicial review will not be available against such wrongful action or injury apprehended by the Petitioner-Appellant.

12. Relying on the above decision of the apex court Mr. Bhuyan, learned Advocate General has urged that the present petition is not maintainable and is premature, inasmuch as, judicial review of the impugned notice of the Speaker cannot be made at this stage as no final decision on the question has been made by the Speaker. On the other hand Mr. Goswami, learned Counsel for the Appellant-Petitioner has urged that if the complaint petition alongwith its annexures are accepted to be true, no case has been made out under para 2(1)(b) of the 10th Schedule of the Constitution and as such, issuance of the impugned notice is without any jurisdiction, as no reasonable person properly instructed in law would have issued the notice on the basis of the complaint petition filed by the Respondent No. 2 alongwith the annexures. Mr. Goswami has further urged that the question regarding jurisdiction can be agitated in this Court at any stage and for that purpose learned Counsel has placed reliance on various decisions of the apex court in addition to the law laid down by the apex court in Kihoto Hollohan (supra). Mr. Goswami has further urged that para 110 of the judgment reported in S.C.C in Kihoto Hollohan (supra) quoted above, does not cover all the contingencies that may arise in adjudicating any matter under the 10th Schedule by the Speaker or the Chairman and the case in hand is a case which is not covered by the above decision of the apex court.

13. We may now refer to various decisions on which Mr. Goswami has placed reliance for the purpose of determining as to whether this Court can exercise jurisdiction at this stage when only a show cause notice has been issued by the Speaker. According to Mr. Goswami the law laid down by the apex court is clear inasmuch as, if notice is issued without any jurisdiction, the court can intervene by exercising its writ jurisdiction.

14. In The Management of Express Newspapers Ltd. Vs. Workers and Staff Employed under it and Others, it was held that the true legal position in regard to jurisdiction of the High Court to entertain petition even at the initial stage of the proceeding proposed to be taken before the Industrial Tribunal is not disputed and it was held by the apex court that even at the initial stage, the High Court can ascertain whether the dispute was an Industrial dispute or not. On the same analogy Mr. Goswami has urged that if prima facie the complaint petition with its annexures do not disclose a case of disqualification of the Appellant-Petitioner under the 10th Schedule to the Constitution, this Court can definitely by exercising its jurisdiction can examine the matter.

15. In State of M.P. v. V.K. Jadav AIR 1968 SC 1186 (para 7) the apex court held that it is well established that where the jurisdiction of the administrative authority depends upon a preliminary finding of fact the High Court is entitled to determine upon its own independent judgment whether or not the finding is correct. The apex court also referred to the decision in Rex V. Shoreditch Assessment Committee, 1910 2 KM 859. According to Mr. Goswami, while deciding a matter under 10th Schedule to the Constitution the Speaker acts as a Tribunal and this Court can ascertain as the whether there was a prima facie case to give jurisdiction to the Speaker to act as a Tribunal under the 10th Schedule.

16. In support of his arguments Mr. Goswami has urged that if the complaint petition alongwith the annexures filed by the Respondent No. 2 before the Speaker are accepted as correct it would not attract the provisions of 10th Schedule to the Constitution and for this purpose has placed reliance in the ratio laid down by the apex court in Raza Textiles Ltd. Vs. Income Tax Officer, Rampur,

17. In MIS Raza Textile Ltd. (supra) it was held that no authority much less a quasi-judicial authority can confer jurisdiction on itself by deciding a jurisdictional fact wrongly. It was also held that the question whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of Certiorari.

18. Relying on the Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, in reply to the contention urged by Mr. Bhuyan, learned Advocate General, Mr. Goswami has urged that even though Appellant-writ Petitioner can come before this Court after the final orders are passed by the Speaker, it would not justify the court not to interfere on this ground as in the case of Calcutta Discount Company (supra) the apex court has held that it becomes a duty of the court to give relief in fit cases and courts would be failing to perform their duties if relief is refused without any adequate reason. Mr. Goswami has further urged that if the complaint petition and the annexures do not make out a prima facie case no jurisdiction can be conferred on the Speaker to issue the impugned notice and in support learned Counsel has drawn our attention to a decision of the apex court in State of West Bengal and Others Vs. Swapan Kumar Guha and Others, In that case the question of condition precedent to the commencement of investigation u/s 157 Code of Criminal Procedure was considered and it was held that the FIR must disclose, prima facie, that a cognizable offence has committed. The apex court held that if the FIR docs not disclose the commission of cognizable offence the court would be justified in quashing the investigation. It was also held that there is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. Mr. Goswami has also referred to the decision of the apex court in State of Rajasthan and Others Vs. Union of India and Others,

19. In our view in the aforesaid decisions cited by Mr. Goswami, the Supreme Court was not confronted with provisions such as paragraph 6 of the 10th Schedule to the Constitution making the decision of the Speaker or the Chairman on the question of disqualification of a member of a House final and paragraph 7 of the said Schedule providing that no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under the said Schedule. These two constitutional provisions which were part of the Constitution (Fifty Second Amendment) Act, 1985 have the effect of limiting our powers under Articles 326 and 227 of the Constitution in respect of question relating to disqualification of a member of a House under the 10th Schedule of the Constitution. As has been held by the Venkatachalliah, J as he then was in paragraph 62 of his judgment in Kihoto Hollohans case reported in S.C.C.

...though the amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of these articles respecting matters falling under the Tenth Schedule....

Again, in paragraph 101 of the same judgment, it has been explained:

The finality clause in paragraph 6 does not completely exclude the jurisdiction of courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction.

20. Situated thus, we may sum up the law and hold that the power of judicial review in respect of the order passed by the Speaker/Chairman of the House acting as a Tribunal under 10th Schedule of the Constitution adjudicating any matter is limited and this power cannot be exercised in case of apprehended or threatened action. The judicial review is not available at a stage prior to the making of decision by the Speaker/Chairman, nor would it be available for interfering against any interlocutory order. However, there are exceptions in respect of cases where disqualification or suspension is imposed during the pendency of the proceeding or where such disqualification or suspension is likely to have grave, immediate and irreversible repercussion and consequences.

21. For exercising our power of judicial review under Articles 226 and 227 of the Constitution in the present case we have to first examine as to whether the stage at which the present writ petition has been filed is prior to making of a decision by the Speaker or after a decision by the Speaker. According to Sub-rule (1) of Rule 7 of the Rules, on receipt of petition under Rule 6, the Speaker shall consider whether the petition complies with the requirements of Rule 6 and if it does not comply. Speaker shall dismiss the petition with intimation to the Petitioner. In the event, the petition complies with the requirements of Rule 6 Speaker shall after such consideration cause copy of the petition and the annexures thereto to be forwarded to the member in relation to whom the petition has been made.

22. The word "consider" in Sub-rule (1) of Rule 7 is important. Mr. Goswami, learned Counsel for the Appellant-Petitioner has urged that in view of the above word "consider" in Sub-rule (1) of Rule 7, the Speaker has to apply his mind whether on the basis of the petition and its annexure in the case in hand a prima facie case has been made out to attract the provisions of Clause (b) of sub-para (1) of para 2 of the 10th Schedule to the Constitution. In support learned Counsel has placed reliance in two decision of the apex court viz. The Barium Chemicals Ltd. and Another Vs. Sh. A.J. Rana and Others, and the Divisional Personnel Officer Southern Railway v. T.R. Challappan AIR 1975 SC 22/6.

23. In Beriam Chemical (supra) after making a survey of the meaning of the word "consider" in various dictionaries, the apex court held that the words ''considers it necessary'' postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking, to pass the order. It was further held that if the orders were to show that there has been no careful thinking or proper application of mind as to the necessity of obtaining or examining the documents specified in the order, the essential requisite of the making of the order will held to be non-existent.

24. In the Divisional Personnel Officer, Southern Railway, (supra) the apex court held that the word "consider" connotes that there should be active application of mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed and in other words, the term "consider" postulates determination of all the aspects of pros and cons of the matter after hearing the aggrieved person, of course, in the case in hand at the present stage, the question of hearing of the parties may not arise.

25. Mr. Goswami has drawn our attention to a decision of the Court of Appeal in Secretary of State of Education and Science v. Metropolitan Borugh of Tameside (1976) 3 All ER 665, more specifically judgment of Lord Wilberforce (at page 679) and at page 681 it was held as follows:

2. The section is framed in a ''subjective'' form - if the Secretary of State ''is satisfied''. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in these form may no doubt exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then although, the evaluation of those facts is for the Secretary of State alone, the court must enquire whether those facts exist, and have been taken into account, whether the judgment has been made on a proper self direction as to those facts, whether the judgment has not been made on other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however, bonafide it may be become capable of challenge.

26. On a consideration of the aforesaid authorities and the provisions of the Rules, we hold that before making a petition against any member under 10th Schedule to the Constitution, the person making such petition shall have to satisfy himself that a question has arisen as to whether such member has become subject to disqualification under the 10th Schedule. If the person is satisfied, he may file a petition as provided under Sub-rule (1) and (2) of Rule 6. This petition should strictly comply with requirements of Sub-rule (5) of Rule 6 viz contain a concise statement of material facts on which the Petitioner relies and shall be accompanied by copies of documentary evidence, if any, and the information if received by the Petitioner from any other person a statement containing name and address of such person and gist of such information as furnished by each such person.

27. On receipt of such a petition under Rule 6, the Speaker shall consider whether the petition complies with the requirements of that rule viz Rule 6. Such consideration means Speaker has to apply his mind and think over the matter. While doing so, the first consideration is whether the concise statement of material facts in the petition as mentioned in Clause (a) of Sub-rule (5) of Rule 6 discloses a case under Clause (b) of sub-para (1) of para 2 of the 10th Schedule. In other words, such concise statement and supporting document and gist of statement of witnesses should show prima facie that the member concerned has voted or abstained from voting in the House contrary to any direction issued by the Political Party to which he belongs without obtaining prior permission of the Political Party. Of-course, if such voting or abstention has been condoned by any Political Party within 15 days from the date of such voting or abstention, no action can be taken. Where on such a consideration, the Speaker comes lo the conclusion that the statement of facts in the petition along with annexures do not disclose at all a case of a disqualification of the concerned member under the 10th Schedule of the Constitution, the Speaker shall dismiss the petition under Rule 7(2) of the Rules.

28. According to Mr. Goswami as stated above, the statements contained in the petition filed by Respondent No. 2 and its annexures do not, prima facie, disclose that there was any direction issued by the Political Party to the Appellant-Petitioner to vote or abstain from voting in a particular way. In fact, according to Mr. Goswami, there was no direction at all to the member of the ruling Political Party.

29. Mr. Bhuyan, learned Advocate General initially stated that the petition and the documents annexed are sufficient to show that there was a direction to vote in a particular way. When it was pointed out by Mr. Goswami that the direction was only to be present in the House Mr. Bhuyan urged that there might have been a verbal direction. When this statement was made Mr. Goswami took the stand that in that event, the present notice is to be quashed as the 10th Schedule of the Constitution does not contemplate any such verbal direction. It is not necessary for us to enter into this controversy, as it is for the Speaker to decide this point. In the passing, we may state here that the whip docs not indicate whether it was "one line", "two lines" or "three lines" whip. In fact, in Parliamentary practice, this is an important aspect. When this was pointed out Mr. Goswami produced before us, copies of two whips issued by the Chief Whip of the Congress (I) Party in Lok Sabha dated 1st March, 1994 and 10th May, 1993, The whip issued on 1st March, 1994 by the Chief Whip to all members of Lok Sabha of Congress (I) Party was a three lines whip with a request that the members should be present throughout the day for discussion, voting and support the Govt.''s stand. But the whip dated 10th may,1993 is an ordinary whip requesting the members to be present for discussion on 11th May, 1993. We need not enter into this matter further as the matter is to be considered by the Speaker.

30. The learned Advocate General produced the record of the Speaker and on a perusal of the same we find that the Speaker has not applied his mind and considered as to whether the concise statement of facts in the petition of the Respondent No. 2 alongwith the annexures disclose at all a case of disqualification of the Petitioner-Appellant under the provisions of Clause (b) of sub-para (1) of para 2 of the 10th Schedule of the Constitution. Hence, the Speaker has not taken any decision as to whether the petition of the Respondent No. 2 alongwith its annexures disclose at all a case of disqualification of the Petitioner-Appellant under the 10th schedule of the Constitution. As the present writ petition has been filed at a stage prior to the making of a decision of the Speaker under Sub-rules (1) and (2) of Rule of the Rules, we are of the opinion that as per the law laid down by the Supreme Court in paragraph 110 of the judgment in Kihoto Hollohan''s case reported in SCC, we cannot exercise the power of judicial review at this stage. We are further of the view that the impugned notice of the Speaker creates only an apprehension in the mind of the Appellant-Petitioner that a wrongful action may be taken against him under the 10th Schedule of the Constitution and the present writ petition is of the nature of quia timet action to prevent the said apprehended injury and the limited Power of judicial review is not available in such a quia timet action as per the aforesaid decision of the Supreme Court.

31. The writ petition has been filed perhaps because under Rule 7(3) of the Rules, the Speaker can cause copies of the petition and annexures thereto served on the Petitioner and call for his comments only after consideration and decision by the Speaker under Rule 7(1) and Rule 7(2) of the Rules, but in view of our aforesaid finding that the impugned notice was a notice prior to consideration of the matter and decision by the Speaker under Rule 7(1) and 7(2) of the Rules, the Petitioner-Appellant may treat the impugned notice as an opportunity to give his comments to enable the Speaker to consider the entire matter under Rule 7(1) and (sic) (2) of the Rules. It is, however, for the Petitioner-Appellant to decide as to whether he would raise a preliminary objection or send a full reply. Even if no such preliminary objection is raised the Speaker will have to pass orders in accordance with Sub-rules (1) and (2) of Rule 7 of the Rules because of the word "shall" in the said two sub-rules of Rule 7.

32. In the result, we extend the time for the Petitioner-Appellant to submit his reply to the Speaker till the 30th of October, 1994 and thereafter it is for the Speaker to decide the matter in accordance with law.

Subject to what has been stated above the appeal is disposed of. Parties to bear their own costs.