U.L. Bhat, C.J.@mdashFive members of the Nagaland Legislative Assembly have filed writ petition, Civil Rule No. 2421 of 1990 under Article 226 of Constitution of India seeking a writ of Mandamus directing first respondent, Speaker, Nagaland Legislative Assembly, second respondent, Secretary, Nagaland Legislative Assembly, and third respondent, State of Nagaland to cancel, withdraw or forbear from giving effect to order dated 15.12.90 passed by the first respondent, a copy of which is appended in Annexure 6, whereby he declared that the petitioners have become subject to disqualification under the Tenth Schedule of the Constitution of India.
2. The petitioners on 21.12.90 filed Transfer Petition (Civil) No. 40 of 1991 and the Supreme Court stayed the proceedings in this Court until further orders. Constitutionality of the ouster of jurisdiction of Courts to review order passed by Speaker under Tenth Schedule, availability of judicial review and other questions, arising in this and other similar petitions pending before several High Courts were considered and the Supreme Court through a Constitutional Bench laid down the law by order dated 12.11.91. The Supreme Court also observed that the factual controversies raised in the writ petition have to be decided by the High Court applying the law so laid down and remitted the writ petition to this High Court for disposal.
3. This Court by order dated 9.12.91 stayed the order of the first respondent disqualifying the petitioners as also another order dated 16.12.90 disqualifying ten other Members of the Legislative Assembly. This order was challenged before the Supreme Court in Petition for Special Leave to Appeal (Civil) Nos. 18928 of 1991 and connected SLPs. The Supreme Court has adjourned the SLPs to 17.1.92 in the hope that the writ petitions pending in the High Court may be disposed of at the earliest and directing the parties to appear before the High Court on 17.12.91 to enable the Court to fix a date of hearing. On that day the date of hearing was fixed and the case has since been heard.
Factual Backdrop
4. In the elections held in 1989 to the 60 Member Nagaland Legislative Assembly, Congress (I) Party secured 36 seats and Nagaland People''s Council (NPC) secured 24 seats and Shri S.C. Jamir, the Leader of the Congress (I) Legislature Party formed the Council of Ministers. In May, 1990 on account of certain developments in the Congress (I) Legislature Party 12 MLAs broke away from the party and formed a Regional Party and two of them were expelled. The Congress (I) Ministry was dismissed on 4.5.90. The then Speaker disqualified 10 among the 12 MLAs and declared the other two to be unattached. This order is under challenge in Civil Rule No. 1778 of 1990. Thus, the effective strength of the House became 50. Shri K.L. Chishi, leader of the`NPC Legislature Party with the support of 24 MLAs of NPC and two unattached MLAs formed a new Ministry on 15.5.90. On 13.6.90, 17 among the MLAs of the NPC withdrew support to Shri K.L. Chishi who resigned and with their support and support of Congress (I) Party, Shri Vamuzo (a non MLA) of NPC who was elected leader of Joint Legislative Party formed a new Ministry. He had the support of 24 Congress (I) Members and 17 members of the NPC group. On 19.7.90 the present Speaker first respondent) was elected Speaker. On 9.8.90 the first respondent passed an order revoking the earlier order dated 14.5.90 disqualifying 10 Congress (I) MLAs and declaring two Congress (I) MLAs unattached. The order of disqualification as well as the order of revocation are challenged in other writ petitions. With this order, the strength of the House was restored to 60. This was followed by a formal split in the NPC. On 9.11.90 Sri Vamuzo was elected MLA. 3& On 16.11.90, Shri Chishi was expelled from NPC and was declared unattached. The Governor on 22.11.90 summoned the Legislative Assembly to meet on 18.12.90, On 2.12.90 the Congress (I) Party with 24 MLAs withdrew support to Shri Vamuzo''s Ministry. On 3.12.90 a member of the Congress (I) Legislative Party gave notice of motion expressing no confidence in the Speaker, first respondent. The motion was placed on the agenda of the House for 18.12.90. There was also a motion expressing no confidence in Sri Vamuzo Ministry.
5. On 12.12.90 the fourth respondent filed five separate petitions before the first respondent (copies are annexed to Annexuie II and other documents) stating that there are reasonable grounds to believe that a question has arisen as to whether five MLAs have become subject to disqualification under the Tenth Schedule of the Constitution and that they have defected from Congress (I) Party and have therefore incurred disqualification under paragraph 2 of the Tenth Schedule, that the five MLAs have signed separate statements agreeing to cause split in their political party along with other Members of the Assembly belonging to Congress (I) Party but there is no split for want of the required one third (1/3) of the Members of the Legislature Party which is mandatory under paragraph 3 of the Tenth Schedule and requesting the first respondent to declare the MLAs have become subject to disqualification under the Tenth Schedule and cause copy of the order to be delivered or forwarded to the petitioner and the concerned Leader of the Legislature Party. Copies of the statements or declarations signed separately by the five MLAs were appended to each of the petitions filed by fourth respondent before the first respondent. These five MLAs are the writ petitioners.
6. On 14.12.90 the second respondent issued notice to each of the five writ petitioners informing them that the first respondent has received petitions as aforesaid and enclosing copies'' of the petition along with the notice and requesting them to meet the first respondent in his office chamber at 12 noon on 15.12.90 without fail for explaining their position. Each of the petitioners duly appeared before the first respondent in the presence of the second respondent and others and submitted identical explanations (see Annexure III) stating merely that "I have never submitted any petition to the Speaker to cause a split in the Congress (I) Legislature Party, the question of attracting clause 2 (a) of Tenth Schedule of the Constitution of India does not arise." They also submitted a letter signed by all of them stating that as desired by the first respondent, they met him in his office chamber at 12 noon on 15.12.90 in the presence of the second respondent and the Joint Secretary of the Assembly for verifying their signatures etc. and that they "were falsified". They further stated therein that there was no petition addressed by them to the first respondent for a split.
7. On the same day the first respondent passed the impugned order (Annexure VI) holding that it is clear from the declarations (copies of which were appended to the petitions against the writ petitioners) and which declarations were uncontroverted, that the petitioners had decided to voluntarily give up their membership of the original political party, namely, Congress (I) Party, that the plea they have taken is not inconsistent with the plea set up in the petitions and that 5 members do not constitute 1/3 rd of the original political party which had a strength of 24 in the Nagaland Assembly. First respondent, therefore, accepted the uncontroveted declarations signed by the petitioners to be true and accordingly held that the five writ petitioners have become subject to disqualification under the Tenth Schedule of the Constitution of India. It is this order which is now challenged.
8. Two Members of the NPC Legislature Party were expelled and the first respondent by order dated 13.12.90 declared them unattached. The first respondent by order dated 13.12.90 disqualified another set of 10 MLAs belonging to NPC on the ground of defection. Thus effectively, the strength of the Assembly was reduced to 45. The present Chief Minister, Shri Vamuzo has thus the support of 23 MLAs and Congress (1) has 19 MLAs besides three unattached Members. The 10 disqualified MLAs of NPC have filed a batch of petitions, namely, Civil Rule Nos. 110119 of 1991. It is incidentally mentioned that the first respondent is the brotherinlaw of the present Chief Minister, Shri Vamuzo and the agenda of the Assembly for 18.12.90 included consideration of the motion of no confidence against the Ministry as well as the motion of no confidence against the Speaker.
X Schedule to the Constitution Salient feature
9. Over the years strength and resilence of parliamentary democracy in India began to be eroded by the evil of unprincipled and unethical political defections leading to frequent changes of loyalty on the part of groups of legislators, change of governments and imposition of President''s Rule in States. A graphic picture of this unfortunate state of affairs is drawn at paragraphs 7 to 15 of the judgment of Jammu & Kashmir High Court in Mian Bashir Ahmed vs. State of J & K & others, AIR 1982 J & K 26 (FB). The Parliament ultimately stepped in and enacted the Tenth Schedule to the Constitution. The Statements of Objects and Reasons of the Constitution (Fifty Second Amendment) Act, 1985 states "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principle which sustain it." The object of incorporating X Schedule is to combat the evil of unprincipled political defections.
10. Para 2 of X Schedule contemplates disqualification of a member of a Legislature belong to any political party in the circumstances mentioned therein. While regarding defection as unwholesome and unwelcome, it has been recognised that differences of opinion on principles and ideology are the very essence of democracy and such differences may spur political realignments leading to splits in political parties and their legislative wings; accordingly an attempt has been made to save legislators involved in splits in political parties by paragraph 3. Paragraph 4 is a saving provision in regard to mergers.
11. The heading of paragraph 2 is "Disqualification on ground of defection.'' Paragraph 2 is subject to paragraphs 3 to 5. It contemplates two contingencies where a member of the House shall be disqualified : (1) if he has voluntarily given up his membership of the political party, or (2) if he votes or abstains from voting in such House contrary to any whip issued by the political party or any authorised authority without obtaining prior permission has not been condoned by the party or authorised authority within fifteen days from the date of such voting or abstention. Heading of paragraph 3 is �Disqualification on ground of defection not to apply in case of split". According to paragraph 3, where a Member of a House makes acclaim that he and any other members of his Legislature Party constitute a group representing a faction which arisen as a result of a split in his original political party and such group consists of not less than onethird of the members of such Legislature Party, he shall not be disqualified under paragraph 2(1), and from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of paragraph 2(1) and to be his original political party.
12. There is an argument advanced on behalf of the petitioners that where a group of legislators decides to cause a split within the meaning of paragraph 3 and the attempt to cause split inasmuch as strength of the group falls short of 1/3, there can be no disqualification under paragraph 2. This view cannot be accepted as correct. Tenth Schedule deals with defection by legislators. Defection by legislators is governed by paragaph 2 and such defection entails disqualification. Where defection is by a group of legislators whose strength is not less than onethird of the members of their political party, paragraph 3 provides a defence against disqualification under paragraph 2. If a group of legislators purport to create a split, their action inevitably involves voluntarily giving up membership of their original political party. In the absence of paragraph 3 legislators who indulge in such split will be subject to disqualification under paragraph 2. Where there is group action of the nature contemplated in paragraph 3, they are saved by virtue of the provisions of paragraph 3. In other words, where a legislator or a group of legislators are faced with the possibility of disqualification under paragraph 2, they can raise two defences on the merits, namely, that the conditions prescribed for disqualification under paragraph 2 do not exist in the instant case and even if paragraph 2 applies, they are entitled to protection under paragraph 3 because there is split of the nature contemplated therein. Where a group of legislators purport to cause a split but if their number falls short of 1/3 or if other conditions of paragraph 3 are not satisfied, paragraph 2 is attracted since `split'' involves voluntary giving up membership of the original political party.
13. Paragraph 6 of X Schedule confers on the Speaker or Chairman of the House, as the case may be, the power to arrive at a decision if any question has arisen as to whether a member of the House has become subject to disqualification under Schedule X, and his decision shall be final There is special provision regarding the disqualification of the Chairman or the Speaker Subparagraph (2) of paragraph 6 declares that all proceedings under subparagraph 1) in relation to any question as to disqualification of a member of a House under Schedule X shall be deemed to be proceedings in Parliament within the meaning of Article 122, or in the State Legislature within the meaning of Article 212. These Articles state that the validity of any proceedings in Parliament or State Legislature as the case may be, shall not be called in question on the ground of any alleged irregularity of procedure. Thus the decision of the Speaker or the Chairman is protected from any challenge based on an allegation of irregularity of the procedure adopted by him in arriving at the decision.
14. Paragraph 7 of X Schedule bars the jurisdiction of Courts in respect of any matter connected with the disqualification of any member. Paragraph 8 confers on the Chairman or the Speaker power to make Rules for giving effect to the provisions of the Schedule and enables the Chairman or the Speaker, inter alia, to make Rules providing for the procedure for deciding any question referred to in subparagraph (1)of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question.
15. Constitutionality of certain provisions of Tenth Schedule was challenged before the Supreme Court which dealt with the same by judgment dated 12.11.1991. The decision of the Constitution Bench of the Supreme Court can be summarised as follows :
The Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce in the Tenth Schedule, the provisions of paragraph 7 of the Tenth Schedule require ratification in accordance with the provisions of Article 368 (2) and there has been no such ratification but the provision which requires such ratification being severable, the Tenth Schedule excluding paragraph 7 is valid. The Speaker/Chairman while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and his decision in that capacity in amenable to judicial review, though judicial review should not cover any stage prior to the making of a decision by the Speaker/Chairman, except for cases of interlocutory disqualification or suspension. Paragraph 6 (1) imparting finality to the decision of the Speaker/Chairman is valid, but this concept of statutory finality embodied in paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, noncompliance with rules of natural justice and pervtrsity are concerned. The deeming provision in paragraph 6 (2) attracts an immunity to protect the validity of proceedings from mere irregularities of procedure.
The contention that the investiture of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take farreaching decisions in the functioning of Parliamentary democracy and the vestiture of such power in such constitutional functionaries cannot be taken exception to.
Petitioners'' contentions
16. The contention urged by learned counsel for the petitioners can be summarised as follows :
The Speaker took action at a time when the Legislature bad been summoned to consider, inter alia, motion of no confidence against the Speaker and motion of no confidence against the Chief Minister, who happens to be the brotherinlaw of the Speaker. The action was taken in unseemly haste, in disregard of the Rules and in violation of the principles of natural justice and the action is vitiated by malafides. The Speaker had no jurisdiction to decide any question of disqualification since no such question had been referred to him by any member of the Legislative Assembly including the petitioners. He could not have passed any order since the petitioners had not approached him for an order recognising the split in their party. They signed the declaration not at or about the time they were produced before the Speaker by the fourth respondent, but several months earlier under different circumstances. They signed the declarations agreeing to cause a split in their political party and the act of signing did not constitute defection. The petitions filed by the fourth respondent before the Speaker should have been dismissed for nonconformity with the Rules. The impugned decision is vitiated on account of violation of the principles of natural justice and of the Rules which incorporate such principles. The order is also vitiated for the reason that notice was not given to the Leader of the Congress (I) Legislature Party and conditions precedent required for incurring disqualification were absent in the case.
17. On the basis of the arguments advanced by the counsel for the petitioners, the following points arise for consideration:
(I) The finding of the first respondent that the writ petitioners have incurred disqualification is perverse inasmuch as there was no material before him to show that the petitioners had voluntarily given up membership of their political party and the material only indicated that they had agreed to cause a split and, therefore, paragraph 2 of the Tenth Schedule could not be invoked and the fourth respondent had not been authorised by the writ petitioners to deliver the `declaration'' to the first respondent on their behalf.
(II) The impugned order is vitiated by malafides.
(III) Petition submitted to the Speaker by the fourth respondent was not in conformity with Rule 6 (7) of the Rules inasmuch as Annexure to the petition was not signed or verified and, therefore, first respondent should have dismissed the petition under Rule 7 (2) of the Rules.
(IV) First respondent violated Rule 7 (3) (b) of the Rules inasmuch as he did not give notice to the Leader of the Congress (I) Legislature Party and this illegality vitiates the impugned order.
(V) First respondent denied petitioners 7 days'' time contemplated in Rule 7 (3) (b) of the Rules and hence the impugned order is vitiated.
(VI) There was no proper notice to the writ petitioners under Rule 7 of the Rules, there was no proper opportunity to the writ petitioners to represent their case and to be heard in person as required under Rule 7 (7) of the Rules and thus the order is vitiated on `account of violation of the Rules and principles of natural justice.
Preliminary Observations
18. We have already adverted to the judgment dated 12. 11. 91 of the Supreme Court where it has been held that the Speaker while exercising powers and discharging functions under the Tenth Schedule acts as Tribunal adjudicating the rights and obligations under the Tenth Schedule and his decision in that capacity is amenable to judicial review in so far as infirmities based on violation of constitutional mandates, mala fides, noncompliance with the rules of natural justice and perversity are concerned. Though learned counsel for the petitioners submitted that the four grounds mentioned by the Supreme Court as grounds for judicial review are only illustrative and not exhaustive, the learned counsel agreed that for the purpose of this case petitioners would limit themselves to these grounds. We have pointed out the noble and high purpose underlying the provisions of Tenth Schedule, namely, combating the evil of unprincipled political defection. The Tenth Schedule has vested power of adjudication in Chairman/Speaker, high constitutional . functionaries who are expected to arrive at decisions free from political bias. Proceedings of Legislatures enjoy a decree of immunity as seen from Articles 122 and 212 of the Constitution. The Speaker, as head of the Legislative organ, one of the three State organs, enjoys a pivotal position. The decision arrived at by the Speaker has a degree of finality attached to it. When Speaker exercises his jurisdiction under Tenth Schedule, he is no doubt bound to follow the dictates of Tenth Schedule and the Rules framed by the Speaker himself and arrive at a decision fairly and reasonably. His decision is subject to judicial review as indicated by the Supreme Court. Having regard to the high and noble purpose sought to be achieved by the provisions of Tenth Schedule, the high constitutional status of the adjudicating authority, the nature and status of the other persons involved in such controversies and the degree of the finality attached to the decision, we are of the opinion that the Court on judicial review should not lightly interfere with such decision. The decision can be interfered with only where the Court is completely satisfied that the decision is vitiated on any of the grounds mentioned in the judgment of the Supreme Court. The Court will not sit in appeal over the decision of the Speaker, nor will the Court determine the weight which is to be attached to the evidence. Appreciation of the evidence is entirely left to the Speaker. The Court will not interfere merely because on the evidence placed before the Speaker the Court would have reached a different conclusion. (See observations in paragraph 31 of the judgment in Union of India vs. Jyoti Prakash, AIR 1971 SC 1093).
Point I The impugned order perverse.
19. Petitioners'' contention that the impugned order is perverse is a threepronged one. First is that neither they nor the Leader of the Congress (I) Legislature Party had filed any petition before the Speaker and hence Speaker could not have passed an order of disqualification; second, there are no materials at all on the basis of which any reasonable person could have come to such a conclusion; and, third, even acting on the `declarations'' signed by the petitioners Speaker should have held that there was only an agreement to create a sp it and the agreement was not carried through and hence that action could not be interpreted as an act of defection. In the writ petition it is averred that the `declarations'' relied on by the fourth respondent and acted on by the Speaker were signed in November, 1989 when there were disputes in the Congress (I) Party in the wake of Parliamentary elections and the dispute was subsequently resolved and the petitioners did not join hands with defectors. In paragraph 14 of the writ petition it is averred that the petitioners did not cause defection, no date or time had been put in the `declarations'' they did not give any application to the Speaker to cause split. It is contended by the learned counsel for the petitioners that the contents of declarations could not be interpreted as amounting to an act of defection.
20. Writ petitioners were furnished copies of the petitions filed by the fourth respondent along with the Annexure namely, the `declaration''. Fourth respondent specifically stated in those petitions that each of the writ petitioners has defected from the Congress (I) Party which is his original party and thereby incurred disqualification and each of the writ petitioners has signed the statement (that is, the declaration) along with other MLAs of the Congress (I) Party agreeing to cause split in the original political party but there is no `split'' for want of the required onethird of the members of the Legislature Party under paragraph 3 of the Tenth Schedule. The writ petitioners had occasion to peruse the petition filed by the fourth respondent. The allegations in the petition read in the light of tenor of the declaration would clearly suggest that the declarations were almost contemporary. Nevertheless, in their written submission to the Speaker, writ petitioners had nothing to state about the declarations, the time of the declarations, the contents of the declarations or of their legal effect. If really, as now contended by them, the declarations had been signed several months earlier and under different circumstances and with the intention as now explained they could very well have told the Speaker so. Their failure to raise such a contention before the Speaker would preclude them from raising the contention in this writ petition. The contention that the Speaker could not act in the absence of a petition by the writ petitioners or the Leader of the Congress (I) Legislature Party is not tenable since there is no such restriction on the Speaker''s powers or functions in Schedule X of the Constitution or the Rules.
21. According to the impugned order, disqualification has been incurred under paragraph 2 (1) (a) of Tenth Schedule to the Constitution. According to this provision, "subject to the 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 the House if he has voluntarily given up his membership of such political party." The question is whether the view taken by the first respondent that the petitioners have voluntarily given up their membership of Congress (I) Party is a view which is reasonably possible on the available materials or is it a perverse view. Ws have already noticed that in regard to the time or occasion when the declarations were signed, the circumstances under which they were signed and the intention behind the declarations, petitioners raised no contention at all before the Speaker. A member can voluntarily give up his membership in a variety of ways. He may formally tender his resignation in writing to his political party or he may so conduct himself that the necessary inference from the conduct is that he has voluntarily given up his membership of his party. No provision in Tenth Schedule requires that the act of voluntarily giving up membership of the party must be expressed/performed in any particular manner, formal or otherwise. To require such a formality in the act of voluntarily giving up membership of party would amount to adding a nonexistent qualification or condition in paragraph 2 (1) (a). Whether a member has voluntarily given up his membership of his political party is a matter of inference from admitted or proved circumstances. The admitted circumstances in the case arc that each of the five among the MLAs belonging to Congress (I) Party signed the declaration stating that "I...do hereby agree to cause a split in the original political party, i.e. Congress (I) along with 11 (eleven) others belonging to the Congress (I) Legislature Party of Nagaland. In affirmation of my decision, I do hereby put my signature in this declaration as below :" That they had the intention to cause a split with the support of sufficient number of MLAs so as to constitute onethird of the strength of the Congress (I) Legislature Party is spelled out from the averments in the writ petition also. It is no doubt true that each of these members expected 11 others to join them but ultimately only five of the MLAs were prepared to act on their intention to create a split by signing the declarations. They agreed to cause a split. A split can be caused only by some members voluntarily giving up membership of the. A group of members cannot create a split while continuing to retain membership of the party. The contents of declarations are capable of only one inference, namely, the signatories have shifted their political loyalty, which after all is the essence of the act of voluntarily giving up membership of a party. A member who agrees to cause a split in a party along with certain other members and is prepared to affirm the same in writing cannot turn round and say that it was only in the realm of intention or preparation and that he has not effectuated the intention. It is also significant to note that even though the petitioners were informed that the fourth respondent had produced the declarations before the Speaker and relied on the declarations to make out a case of defection, they did not choose to tell the Speaker that it was only an idea or an intention, which was not implemented. Having regard to the contents of the declaration, the failure of the petitioners to give any explanation before the Speaker, the failure to take a definite stand before the Speaker that there by they bad not voluntarily given up membership of their political party, we are not able to agree that view taken by the Speaker that they had voluntarily given up their membership of their original political party and thereby defected from the party, is not reasonably possible. The view taken by the Speaker cannot at all be regarded as perverse.
22. According to learned counsel for the petitioners where a group of members proceed with the intention of creating a split in the party, if they are not able to gather the support of the requisite number of members constituting onethird of the total membership of the Legislature Party, the only consequence is that they are unsuccessful in creating a split and such conduct cannot be regarded as voluntarily giving up membership of political party or defection leading to disqualification under paragraph 2 (1) (a). We have already considered this contention in paragraph 12 above and held that where a group of members falling short of the requisite strength attempted to create a split in the Legislature Party, their conduct would attract paragraph 2 (I) (a) of the Tenth Schedule. The contention to the contrary is not acceptable.
Point II. Impugned orders vitiated by maiafides
23. Learned counsel for the petitioners would contend that the haste on the part of the Speaker in taking action on the petitions filed by the fourth respondent, the fact that the Speaker is related to the Chief Minister as brotherinlaw, the fact that notice had been given to move motions of no confidence against the Chief Minister as well as the Speaker in the impending Session of the Legislative Assembly would clearly lead to the inference of malafides on the part of the Speaker. Fourth respondent filed the five petitions before the Speaker on 14.12.90. On the same day; Secretary to the Legislative Assembly issued notices to the writ petitioners requiring them to meet the Speaker in his office chamber at 12 noon on 15.12.90 without fail for explaining their position and they received the notices on 15.12.90, they appeared before the Speaker on the date and time in question and submitted separate statements merely stating that they had never submitted any petition to the Speaker to cause a split in the Congress (I) Legislature Party and therefore the question of attracting paragraph 2(a) of Tenth Schedule does not arise. They also gave a joint letter to the Speaker on the same day. The impugned order passed by the Speaker bears the same date. According to learned counsel for the petitioners, the above facts indicate unseemly haste on the part of the Speaker who was actuated not by public interest or by zeal in the discharge of his statutory functions, but only the instinct of selfpreservation since the Assembly was due to meet on 18.12.90. Annexure I is a copy of the Revised List of Business of the Assembly on 18.12.90. Item 3 refers to a motion expressing confidence in the Council of Ministers headed by Sri Vamuzo. Item 5 refers to resolution seeking leave of the House for admission of the resolution for removal of Speaker tabled by some members. It is clear that on 18.12.90 only the question of leave would have arisen in the Assembly. Under Rule 141 of the Rules of Business, support of ten members would have been sufficient for leave. After leave is granted to the motion, a date has to be fixed under Rule 142 evidently by the Business Advisory Committee and the motion has to be taken up on the appointed day. It is therefore not possible to accept the argument that 18.12.90 was a sort of a deadline before which if the impugned action ad not been taken by the Speaker, the Speaker would have been ousted. We are also not inclined to accept that there was any unseemly haste on the part of the Speaker in dealing with the matter presented before him. Though in the writ petition a contention of bias has been raised without averring any personal relationship between the Chief Minister and the Speaker but only on the basis of interestedness of the Speaker in view of the motion of no confidence against him, it is conceded in the course of arguments that the doctrine of bias has no application in the case since it is a case .of necessity and it is the Speaker and the Speaker alone who could take a decision in the matter.
24 As observed by the Supreme Court in E.P. Royappa vs. State of Tamil Nadu & another, AIR 1974 SC 555,
"The burden of establishing malafides is very heavy on the person who alleges it. The allegations of malafides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. ... In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bonafides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in this administration." As observed by the Supreme Court in A. Periakaruppan vs. State of Tamil Nadu & others, AIR 1971 SC 2303,
"...the Courts cannot uphold the plea of mala fides on the basis of mere probabilities."
25. We notice that the first respondent has filed an affidavit denying the allegations of mala fides. We hold that the allegation of mala fides has not been made out.
Point III. Violation of Role 6(7) of the Rules by the fourth respondent and Rule 7(2) by the first respondent
26. Rule 6 of the Rules deals with "References to be by petition." Subrule (5), inter alia, states every petition shall contain a concise statement of the material facts on which the petitioner relies and shall be accompanied by copies of the documentary evidence, if any, on which the petitioner relies. Subrule (6) requires every petition to be signed by the petitioner and verified `In the manner laid down in the Code of Civil Procedure, 1908 for verification of pleadings. Rule 14 of Order VI, Code of Civil Procedure, is the relevant Rule. It says that every pleading is to be signed by the party and its pleader, if any. Rule 15 of Order VI of the Code of Civil Procedure states, inter alia, that every pleading shall be verified by the party or by one of the parties pleading and the verification is to be sighed by the person making it and shall state the date on Which arid the" place at which it was signed. Subrule (7) of Rule 6 of the Rules states that every Annexure to the petition shall also be signed by the `petitioner and verified in the same manner as the petition. Rule 7 of the Rules deals with `Procedure.'' Subrule (1) requires the Speaker on receipt of petition under Rule 6 to consider whether the petition complies with the `requirements of that Rule. Subrule (2) states that if the petition does not comply with the requirements of Rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly.
27. The five petitions filed by the fourth respondent before the Speaker are signed and verified as contemplated by the Rules. Each of the petitions is accompanied by a document, namely, `declaration'' signed by the respective writ petitioner. This document is signed, by the fourth respondent, though verification is lacking. Learned counsel for the petitioners contends, relying on Nazir Ahmed vs. King Emperor, AIR 1936 PC 253, that Speaker had no option but to dismiss the five petitions on account of nonconformity with subrule (7) of Rule 9, by virtue of the provisions in subrule (2) of Rule 7 of the Rules. The decision follows the principle laid down in Taylor vs. Taylor, 1875 Ch. D. 426, that where power is given to do a certain thing in a certain way, that must be done in that way or riot at all and any other method of performance is necessarily forbidden. Nazir Ahmed''s case dealt with the case of a confession to a Magistrate which which formed the main basis for conviction of the accused charged under section 396 of the Indian Penal Code. On the application of the police, the Magistrate proceeded to the scene of dacoity and was taken by the accused to incriminating places material to the events ''connected with the occurrence. The Magistrate made rough notes of what he was told by the accused and after dictating is to a Typist destroyed the same. The memorandum signed by him was produced in Court as evidence. It contained the substance and not all other materials to which he spoke orally. Thestatement was purportedly under section 164 of the Criminal Procedure Code but there was no record in existence at the material time and thereWas nothing to be shown or to be read to the accused, and nothing he could signer refuse to sign. It was held that direct evidence in total violation of sections 164 and 364, Criminal Procedure Code, was inadmissible. If a confession is sought to be relied on it could be permitted only if it was recorded in conformity with the provisions Privy Council also observed that ignoring provisions of sections 164 and 364, CrPC would amount to ignoring the precautions and safeguards laid down therein.
28. In our view, the above principle cannot be applied in the instant case. Signing and verification of the petition with Annexures required under subrules (6) and (7) of Rule 6 of the Rules are to be in the manner laid down in the Code of Civil Procedure. In Mull a on the Code of Civil Procedure, 14th Edition, Volume II, at page 997, it is stated :
"... The signing of plaints is merely a matter of procedure. If a plaint is not signed by the plaintiff or by a person duly authorised by him in that behalf, and the defect is discovered at any time before judgment, the Court may allow the plaintiff to amend the plaint by signing the same. If the defect is not discovered until the case comes on for hearing before an appellate Court, the appellate Court may order the amendment to be made in that Court. The appellate Court ought not to dismiss the suit or interfere with the decree of the lower Court merely because the plaint has not been signed. The omission to sign or verify a plaint is not such a defect as could affect the merits of a case or the jurisdiction of the Court. " At page 999 of the same volume, it is stated
"... The object of this rule (Rule 15) is to fix responsibility for allegations * made in the plaint on the person who verifies and this is to ensure that
false allegations are not made freely and recklessly. " At page 1000 of the same volume, it is stated
"... A pleading which is not verified in the manner required by this rule may be verified at a later stage of the suit, even after the expiry of the limitation period. The omission to verify a pleading is a mere irregularity within the meaning of S. 99 of the Code. It has been pointed out by the Supreme Court that where the verification of a plaint or petition is defective, that should not normally be rejected but an order should be made for its amendment."
Section 99 of the Code of Civil Procedure states that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits o.'' the case or the jurisdiction of the Court.
29. Writ petitioners were furnished with copies of the petitions with Annexure submitted before the Speaker by the fourth respondent. But they did not point out to the Speaker the omission in the matter of verification of the Annexures which incidentally are their own `declarations'', the authencity of which they had not questioned at any stage. This omission was not noticed by the Speaker either. What is more important, this omission is not noticed in the writ petition also and no ground has been taken therein in this behalf. A plea not taken before the Tribunal cannot be taken before the Court in writ proceedings. See, Gandhinagar Motor Transport Society vs. State of
Bombay, AIR 1954 Bombay 202, per Chagla, C. J.; N. Gopalan vs. Central Road Traffic Board, Trivundrnm, AIR 1958Kerala 341, and M/s Filmistan (P) Ltd. vs. Balkrishna Bhiwa & another, AIR 1972 SC 171. Of* course, the Rule requires the Annexure also to be verified. If the omission of verification is discovered, the Speaker could very well direct the fourth respondent to set right the defect. The defect is a formal one and amounts to an irregularity which cannot ordinarily lead to dismissal of the petition. If the defect had been noticed when the matter was pending before the Speaker, that is. the Tribunal he could very well have directed the defect to be rectified and the question of dismissal of the petition on account of the defect under Rule 7 (2) would not have arisen. The question of dismissal would have arisen only if in spite of opportunity being given to rectify the defect, the fourth respondent had declined or failed to do so. In the circumstances, we are of the opinion that the impugned order cannot be interfered with under Article 226 on account of the omission of verification.
Point IV: Violation of Rule 7 (3) (b) of the Rules by ignoring the Legislative Party Leader
30. Rule 7 of the Rules deals with procedure. Under subrule (1) Speaker has to consider whether the petition before him complies with the requirements of Rule 6. If not, subrule (2) requires the Speaker to dismiss the same and intimate the petitioner accordingly. If the petition is found to comply with the requirements of Rule 6,subrule (3)(a) requires that the Speaker shall cause copies of the petition and of the Annexures thereto to be forwarded to the member concerned. Subrule (3) (b) requires that where the member belongs to any Legislature Party and petition had not been made by the Leader thereof, copy shall be forwarded also to such Leader. According to subrule (3) (b), thereupon the member/Leader shall, within seven days of the receipt of the copy, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the Speaker.
31. Admittedly, the Speaker has not forwarded to the Leader of the Congress (I) Legislature Party copy of the petition with Annexure. There is noncompliance with Rule 7 (3) (b) of the Rules. According to learned counsel for the petitioners, Rule 7 (3) (b) is of great significance and violation of the Rule is a grave act calling for interference at the hands of this Court. Underlining the importance of the position of the Leader of the Legislature Party, learned counsel has referred us to Rules 3 and 8 of the Rules. Rule 3 deals with information to be furnished by a Leader of the Legislature Party to the Speaker within thirty days after the first sitting of the House or thirty days of formation of the Legislature Party, where the party is formed after the first sitting. The information required consists of the names of the member of the Legislature Party with other particulars as in Form I and copies of the Rules and Regulations of the political party and the Legislature Party. Whenever any change takes place in the information furnished by the Leader of a Legislature Party, he shall within thirty days thereafter, or within such further time as the Speaker may for sufficient cause allow, furnish in writing information to the Speaker in respect of such change. Where a member belonging to any political party votes or abstains from voting in the House contrary to any direction issued by the political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such political party, person or authority, the Leader of the Legislature Party shall inform the Speaker as in Form II whether such voting or abstention has or has not been condoned by such political party, person or authority. After passing the final order under Rule 8, the Speaker is required to cause copies of the order to be delivered to the petitioner, the member concerned and the Leader of the Legislature Party, if any, concerned. There can be no doubt that Leader of a Legislature Party occupies an important position in the Legislative scheme of things. He has an important role to play under the Rules. He has to convey relevant and necessary information to the Speaker. He has a right to receive copies of the petition with Annexures submitted by any member to the Speaker seeking disqualification of any other member and to furnish written comments thereon to the Speaker. In a case of disqualification under paragraph 2 (1) (b) of Tenth Schedule, the involvement of the Leader assumes importance inasmuch as condonation of violation of whips arises for consideration. In a case which attracts paragraph 2 (1) (a) or paragraph 3 of Tenth Schedule, his role does not assume such crucial significance.
32. However, the writ petitioners did not raise this contention before the Speaker. If the contention had been raised before the Speaker, it would have been possible for the Speaker to rectify the defect and furnish copy of the petition with Annexure to the Leader of the Legislature Party. We do not agree that the impugned order can be quashed on a ground which had not been taken before the Speaker, who acts as Tribunal. At any rate, the omission can be regarded only as a violation of the Rules. This provision in the Rule cannot be regarded as a principle of natural justice incorporated in the Rules. Petitioners do not indicate that prejudice has been suffered by them on account of failure of the Speaker to provide copy of the petition with Annexure to the Leader of the Congress (I) Legislature Party with opportunity to submit comments thereon.
33. There is another good reason to hold that the validity of the proceedings of the Speaker cannot be questioned on the above ground. Paragraph 6(1) of Tenth Schedule enables the Speaker to give a decision as to disqualification. Paragraph 6 (2) states that all proceedings under paragraph 6(1) in relation to any question as to disqualification of a Member of a House shall be deemed to be proceedings in Parliament within the meaning of Article 122. Article 212 which is the provision applicable to State Legislative Assemblies, states
"...(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."
Thus, as long as irregularity of procedure does not amount to violation of an essential principle of natural justice, it cannot be used as a ground to challenge the validity of the disqualification proceedings before the Speaker. See, M.S.M. Sharma vs. Shree Krishna Sinha, AIR 1960 SC 1186; and In Re Under Article 143, Constitution of India, AIR 1965 SC 745. We, therefore, hold that though there has been a technical violation of Rule 7(3) (b) of the Rules, the final order passed by the Speaker cannot be quashed on that ground. Point V: Violation of Role 7(3)(b) and violation of principles of natural justice
34. Rule 7(3) of Rules consists of two parts (1) which requires the Speaker to forward copies of the petition with Annexures to the member concerned and where such member belongs to a Legislature Party, to its Leader, and (2) which allows the member and the Leader, within seven days from 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. It is argued by the learned counsel for the petitioners that the notices issued to the petitioners, besides forwarding copies of the petition with Annexures, required each of them to meet the Speaker in his office next day for explaining his position. In other words, it is pointed out that barely 24 hours time was given to the petitioners to submit their comments and this is in violation of Rule 7 (3), which allows seven days time. A careful reading of the above provision would show that the Speaker is not compelled to issue any notice at all. All that he is required to do is to forward copy of the petition with Annexures. Thereupon, it is open to the member to submit comments within seven days of the receipt of the copy of the petition with Annexures. In spite of the Speaker requiring the petitioners'' presence in the chamber next day to explain their position, the petitioners could very well have told him that Rules allow them seven days time to give written comments and they will avail the time allowed by the Rules. They did not do so. On the other hand, they met him next day with written submission of comments. In their written comments they did not contend that they will submit more detailed comments within seven days, In other words, this contention was not raised before the Tribunal, i.e., the Speaker. Further, the writ petition does not contain a specific ground relating to alleged denial to them of seven days time for submitting written comments. In the circumstances, petitioners cannot be allowed to raise this contention at this stage. In any event, all that can be said is that though they were in a position to avail seven days time and inform the Speaker accordingly, they did not choose to do so. In other words, they have waived the right to seven days time for submitting their comments and cannot raise the question at this stage. It can be said that the allowance of seven days time by the Rule is a statutory incorporation of a principle of natural justice. However, as we have indicated, the writ petitioners gave their Written submissions to the Speaker next day and did not inform him that the} will give more detailed submissions in writing within seven days. There is no case that time at their disposal was too short to apply their mind to the question involved or take advice, legal or otherwise. There is no specific averment in the writ petition that they have suffered any prejudice on account of the failure of the Speaker to wait for seven days. It is not every violatio0f every rule which will enable the Court to strike down the order of a Tribunal. Whether the order is to be struck down on the ground of violation of a Rule depends on a host of circumstances, such as, the nature and significance of the Rule, the conduct of the writ petitioners and prejudice caused to them, etc. Having regard to all the circumstances, we are of the opinion that the final order of the Speaker is not liable to be quashed on this ground. Point VI: No proper opportunity to represent the case, no opportunity for appearing in person and violation of Rule 7 (7) of the Rules.
35. The latter part of Rule 7(7) of the Rules states
�� and neither the Speaker nor the Committee shall come to any finding that a member has become subject to disqualification under the Tenth Schedule without affording a reasonable opportunity to such member to represent his case and to be heard in person."
Learned counsel for the writ petitioners contends that the Speaker denied petitioners reasonable opportunity to represent their case and to be heard in person. The contention that there has been no proper opportunity to represent their case "has been taken in the writ petition. However, the contention that there was detail of opportunity to be heard has not been taken in the writ petition and cannot be allowed to be urged at this stage.
36. The writ petition, though it avers that there was no proper opportunity to represent writ petitioner''s case before the Speaker, does not indicate what exactly was lacking and what exactly was denied to the petitioners. They were given copies of the petition with Annexure and required to meet the Speaker in the chamber next day to explain their position. They gave written submissions before the Speaker and the also gave a joint submission to the Speaker. The impugned order refers to separate submissions and the common submission given by the writ petitioners. The notice issued by the Speaker to the writpetitioners requested them to meet him and explain their position. This they could have done in writing as well as orally. Before the Speaker they took the stand that they had not given any petition to the Speaker to cause split in the Congress (I) Legislature Party and hence the question of disqualification under the X Schedule of the Constitution did not arise. This was the stand taken by them in their joint letter, Annexure IV. They bad every opportunity to represent their case and avail of personal bearing before the Speaker. It is perhaps on account of this reason that in the writ petition while explaining that they had no proper opportunity to represent their case they did not specifically aver that they were denied the hearing in person. That being so, their belated complaint that they were denied hearing in person cannot be accepted. We are not satisfied that there was denial of proper opportunity to writ petitioners to represent their case.
37. We have considered all the contentions urged before us by the learned counsel appearing for the parties in the preceding paragraphs and rejected the specific contentions urged by the learned counsel for the petitioners. We find that none of the grounds against the impugned orders urged on behalf of the petitioners has been made out. The challenge against the impugned orders disqualifying the writ petitioners must, therefore, fail. The petition is accordingly dismissed with costs of respondents. Advocate''s fee fixed at Rs. 2000/ (Rupees two thousand).
