TaxTMI 
TaxTMI 
2021 (9) TMI 1458
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.... Arguments on Behalf of the Respondent Nos. 1 & 3 10-16 9 4. Arguments on Behalf of the Respondent No. 2 17-19 13 5. Reply to the Arguments of the Respondents by the Petitioner 20-24 15 6. Analysis I - Regarding Disqualification Petition 25-28 19 II - Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly, Constitution of Committees and Importance Thereof 29-39 23 III - Constitutional Convention 40-49 33 IV - Judicial Review 50-67 41 V - Quo-Warranto 68-78 60 VI - Maintainability of PIL 79 69 7. Directions 80-81 69 DUTY OF THE COURT 1. The duty of a Judge has been well-defined in Smriti Chandrika in the following terms: As an experienced surgeon extracts a dart from the body of a person by means of surgical instruments, even so the Chief Justice must extract the dart of inequity from a law suit." (Narada vide Smriti Chandrika P. 30). Asahaya explains this provision thus: "As a skilful surgeon, conversant with the art of extracting a dart, takes it out by the application of surgical instrumen....
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....nsgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law. To quote the words of Mr. Justice Brennan in Baker v. Carr. "Deciding whether a matter has in any measure been committed by the Constitution to another branch of Government or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation and is a responsibility of this Court as ultimate interpreter of the Constitution". Where there is manifestly unauthorised exercise of power under the Constitution, it is the duty of the Court to intervene. Let it not be forgotten, that to this Court as much as to other branches of Government, is committed the conservation and furtherance of democratic values. The Court's task is to identify those values in the constitutional plan and to work them into life in the cases that reach the Court. "Tact and wise restraint ought to temper any power but courage and the acceptance of responsibility have their place too." The Court cannot and should not shirk this responsibility, because it has sworn the oath ....
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....en specifically denied by respondent No. 2 though he has personal knowledge of this fact. Even denial of respondent Nos. 1 and 3 to the pleadings of the petitioner is general in nature and evasive. On June 17, 2021 a petition was filed by Suvendu Adhikari seeking disqualification of respondent No. 2 from the Assembly. On June 24, 2021, twenty MLAs including the respondent No. 2 were elected as members of Committee on Public Accounts. On July 09, 2021 the Speaker nominated the respondent No. 2 as the Chairman of the Public Accounts Committee treating him to be MLA belonging to BJP though he had already defected to AITC. It was against the convention admitted by the Speaker himself in the order passed by him. 6. Mr. Vaidyanathan, learned Senior Counsel further referred to the declaration made by the Speaker vide which he nominated respondent No. 2 as the Chairman of the Committee on Public Accounts. It is clearly mentioned therein that in the West Bengal Legislative Assembly there is a healthy and rich tradition and convention being followed for the last 54 years or so, to appoint a member of the opposition as the Chairman of the Committee on Public Accounts. As in the present Com....
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....o., AIR 1964 SC 538; Naseem Bano v. State of U.P., 1993 Supplement (4) SCC 46. 9. Mr. Vaidyanathan, learned Senior Counsel further submitted that the Committee on Public Accounts is constituted for one year and the idea of the respondents is to let the present petition become infructuous. Firstly, the Speaker is not deciding the petition pending before him alleging defection of respondent No. 2 from BJP to AITC, which in terms of judgment of Hon'ble the Supreme Court in Keisham Meghachandra Singh v. Hon'ble Speaker Manipur Legislative Assembly and Others is to be decided within a reasonable period which has been held to be maximum three months. Reliance was also placed upon judgment of Hon'ble the Supreme Court in Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270. It cannot be denied that it is a matter of public importance. Once the allegations are specific against the respondents, the onus shifts on them to prove otherwise. A public interest litigation in such matter is maintainable specially in the form of quo-warranto. Reliance was placed upon B.R. Kapur v. State of T.N., (2001) 7 SCC 231, Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, (....
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....e 178 of the Constitution of India provides for that. In support of the argument reliance was placed upon Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1; State of Kerala v. K. Ajith and Others. As to what is meant by proceedings on the floor of the House in terms of Article 212 of the Constitution of India reference was made to commentary in May's Parliamentary Practice, 24th Edition, judgment of Orissa High Court in Godavaris Misra v. Nandakisore Das, AIR 1953 Orissa 111 was also referred to. The format of the nomination paper as member of the Committee on Public Accounts was referred to show that it does not provide for any column for the candidate to mention the name of the party to which he belongs to. In fact it is not mandatory. The members can be belonging to only one party. At times during previous period there had been practice of having Chairman of the Committee on Public Accounts who were belonging to the opposition party but that cannot be termed as a constitutional convention. He could not deny the fact recorded in the order passed by the Speaker that the respondent No. 2 was nominated as the Chairman of the Commit....
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.... not provide that a member of the opposition party has to be Committee's chairman. In support of the argument that a writ of quo-warranto can be issued only where the person is found to be usurping the office in violation of any statutory rules, reliance was placed upon Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162. Public office is as created under any statutory rules or the Constitution and not merely by Rules of Business. 16. Reliance was also placed upon P.S. Venkataswamy Setty (Dr.) v. University of Mysore, AIR 1964 Mys 159; Sashi Bhusan Roy v. Pramathanath Banerjee, 72 CWN 50. The aforesaid judgments have been referred to by Hon'ble the Supreme Court in Ram Singh Saini v. H.N. Bhargava, (1975) 4 SCC 676. Judgments cited by the petitioner in B.R. Kapur's and Central Electricity Supply Utility of Odisha's cases (supra) are distinguishable for the reason that in the aforesaid judgments the persons involved were holding either statutory or constitutional positions. Judgment of Hon'ble the Supreme Court in State of Punjab v. Satya Pal Dang and Ors., AIR 1969 SC 903 was referred to submit that the rules of procedure cannot be read as Clauses in the Co....
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....or of the House. It shall be treated as proceedings in the legislature. In support of the arguments reliance was placed upon Godavaris Misra v. Nandakisore Das's case (supra); A.M. Paulraj v. The Speaker, Tamil Nadu Legislative Assembly & The Secretary, Tamil Nadu Legislative Assembly, AIR 1986 Madras 248 and Pandit M.S.M. Sharma v. Dr. Krishna Sinha, AIR 1960 SC 1186. 19. It was further argued by Mr. Mitra, learned Senior Counsel that a prayer for issuance of writ of quo-warranto is not maintainable for the reason that it is not a public post. Such a prayer is available only if there are certain eligibility conditions laid down in the Rules and the person has been appointed in violation thereof. There are no such pleadings available. In fact, the present litigation is not a public interest litigation rather a private interest litigation as the petitioner himself had filed objections to challenge nomination of respondent No. 2 as the member of the Committee on Public Accounts and the same was rejected. Hence, he is an interested party. As to what can be termed to be a litigation filed in public interest, reliance was placed upon judgment of Hon'ble the Supreme Court in S....
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....er of the Lok Sabha opining a bill to be a money bill which otherwise is treated as final, was considered by Hon'ble the Supreme Court. It is to keep the constitutional scheme in order. Once the power of judicial review is available the bar under Article 212 is not possible. 22. With reference to the constitution of committees by the Assembly reference was made to Article 194 of the Constitution of India which talks about constitution of committees. Hence, to claim that it is something which is result of only the Rules of Business, is totally misconceived as it has origin from the Constitution itself. Judgment of Hon'ble the Supreme Court in K. Lakshminarayanan's case (supra) was relied upon to submit that the argument of constitutional conventions was even examined with reference to an Act of the Parliament. It was a case in which nomination to the Puducherry Assembly was in question with reference to an Act framed by the Parliament. The issue was related to only one State. In the case in hand the issue relates to exercise of discretion by the Speaker with reference to nomination of Chairman of the Committee on Public Accounts which is referable to Article 194 of th....
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....ule 301 of the Rules of Business clearly provides for the functions of Committee on Public Accounts. Even Section 2(17)(g) of CPC also defines on as to who is a public officer. Even a member of Parliament was also held to be a public officer. Reliance was placed on the judgment of Hon'ble the Supreme Court in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 for consideration of the issue. The duties attached to the office are to be considered. If the same are considered in the present case, there cannot be any other opinion except that the Chairman of the Committee on Public Accounts discharges public functions. Hence, for considering his eligibility to hold the post a writ of quo-warranto will be maintainable. It is a case in which the established admitted constitutional convention has been violated. The office is permanent, the persons may come and go. The office in question is a public office. In any case the members of the Legislative Assembly are public representatives elected to serve the public at large in the democratic set up. 24. Heard learned Counsel for the parties and perused the relevant referred record. ANALYSIS I-REGARDING DISQUALIFICATION PETITI....
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....ecision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable period. What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule." (emphasis supplied) 27. In Rajendra Singh Rana's case (supra) as well the issue was regarding pendency of the proceedings for disqualification of certain MLAs before the Speaker of the Ass....
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....thin time, it will endanger the democratic set up. Even for decision of the petitions filed for disqualification of a member by the Speaker, the Courts have to intervene and specify the timeline. A Speaker in discharge of his constitutional duties is expected to be neutral. The power of the Speaker to adjudicate upon an application filed for disqualification of a member of Assembly has been held to be quasi-judicial in nature, which is subject to judicial review by the Courts. It is because of inaction of the Speaker that this Court has been approached in this avoidable litigation. In the case in hand, petition filed for disqualification of the respondent No. 2 with allegations of his defection from BJP to AITC is pending before the Speaker since June 17, 2021. Three months period expired on September 16, 2021. II-RULES OF PROCEDURE AND CONDUCT OF BUSINESS IN THE WEST BENGAL LEGISLATIVE ASSEMBLY, CONSTITUTION OF COMMITTEES AND IMPORTANCE THEREOF 29. The relevant provisions of the Constitution of India are extracted below: "CONSTITUTION OF INDIA 208. Rules of procedure.--(1) A House of the Legislature of a State may make rules for regulating, subject to the p....
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....ipal Secretary and shall produce such documents as are required for the use of a Committee. (2) It shall be in the discretion of the Committee to treat any evidence tendered before it as secret or confidential. (3) No document submitted to the Committee shall be withdrawn or altered without the knowledge and approval of the Committee. x x x x Committee on Public Accounts Functions 301. (1) There shall be a Committee on Public Accounts for the examination of accounts showing the appropriation of sums granted by the House for the expenditure of the State Government, the Annual Finance Accounts of the State Government and such other accounts laid before the House as the Committee may think fit. (2) In scrutinising the Appropriation Accounts of the State Government and the report of the Comptroller and Auditor-General thereon, it shall be the duty of the Committee to satisfy itself- (a) that the moneys shown in the accounts as having been disbursed were legally available for and applicable to, the service or purpose to which they have been applied or charged; (b) that the expenditure conforms to the authority wh....
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....the House of Legislature of a State to make Rules for regulating its procedure and conduct of business. As is evident from the Rules of Business, Chapter XXV thereof provides for Assembly Committees. Rule 252 provides that the members of the Committees shall be either appointed or elected or nominated by the Speaker. Rule 255 provides that the Chairman of a Committee shall be appointed by the Speaker from amongst the members of the committee. The sittings are to be held within the precincts of the House. Any change in place has to be with the approval of the Speaker. In terms of Rule 266 the Committee may summon any witness to produce any documents required for its use by the Committee. Any evidence submitted or produced before the Committee can be kept secret or confidential at the discretion of the Committee. It can also administer oath of affirmation to the witness being examined by it. Any business pending before a Committee shall not lapse by reason only of prorogation of the House. 32. Rules 284-290 of the Rules of Business provide for constitution of Business Advisory Committee. Rules 291-298 provide for constitution of Select Committee on bills. Rules 298A-300 provide fo....
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....he Speaker being the authority in terms of Rule 255 of the Rules of Business appointed the Chairman thereof. It was so done on July 09, 2021. While noticing certain facts regarding constitution of Committees and its Chairmen, the Speaker declared that he has been given the power to appoint Chairman/Chairperson from amongst the members elected to different Committees. In the case of the Committee on Public Accounts, the Speaker mentioned that a very healthy and rich tradition and convention have grown for the last 54 years or so to appoint a member of the Opposition as the Chairman of the Committee. 7 out of 20 members of the Committee on Public Accounts belong to BJP, the party in opposition. Following the convention as established, he as the Speaker, is to appoint a person from amongst the said seven members as the Chairman of the Committee on Public Accounts. As the appointment has to be of a member holding outstanding experience in legislative and parliamentary affairs and the Committee on Public Accounts enjoys a place of pride in the Committee system, taking all factors into account, the respondent No. 2 having vast experience in parliamentary affairs and belonging to the legi....
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....unctional mandate specified by the Assembly, or the Assembly itself lacks jurisdiction to deal with the subject matter, we are of the view that the widest amplitude must be given to the functioning of these committees. It is the parliamentary committee system that has been recognised as a creative way of parliaments to perform their basic functions. The same principle would apply, even if it is to some extent beyond their legislative domain. This is because they will not be able to make any valid legislative recommendations in the absence of competence over the subject matter. However, they may debate aspects which may be a reflection of their sense and consequently the sense of the House, if so adopted by the House." (emphasis supplied) 39. A perusal of the various Rules of Business with reference to the working of the Committees and the work to be discharged by them and the powers conferred on them clearly establish the importance thereof. Hon'ble the Supreme Court has opined that the Committees constituted by the legislative bodies perform a key role in the functioning and working of the Houses as there is more reasonable and applied discussion in these Committees. Eff....
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.... and recommendation of the Chief Justice of India in the matter of appointment of Judges is binding on the executive. It was found that there were precedents for the period from 1950-1959 and from 1983-1993, when almost all appointments were made with the concurrence of the Chief Justice of India. Hence, there were precedents. As regards the second test, it was noticed that even on the floor of the House of the Rajya Sabha it was stated by the then Home Minister and the then Law Minister that executive was bound by the recommendations made by the judiciary. As far as the third test is concerned, it was found that the Chief Justice of a High Court and Chief Justice of India are well equipped to express their views and tender advice on the suitability of the person. The independence of judiciary is paramount and the same can be maintained if the executive does not have final word on the appointments. 42. The issue regarding constitutional convention was also considered by Hon'ble the Supreme Court in K. Lakshminarayanan's case (supra). One of the questions framed therein was as to whether there was a constitutional convention to consult the government of Puducherry before ....
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....Members, election to the four Financial Committees for the year 2021-2022 of this Assembly have been completed and the Members have been declared elected to those Committees. The names of the elected Members have already been displayed at the Notice Board. I have also nominated the Members of other traditional Assembly Committees and 26 departmentally related Standing Committees for the year 2021-2022. The composition of those Committees will be intimated to the Members by the Assembly Secretariat in due course. Before announcing the names of Chairmen/Chairpersons of different Committees of West Bengal Legislative Assembly including four financial Committees, I would like to share with the House some relevant facts. A letter dated 14.6.2021 from the Hon'ble Chief Opposition Whip has been received by me intimating therein the consent of the Leader of the Opposition to nominate a particular member as Chairmen of Public Accounts Committee of West Bengal Legislative Assembly. The letter had been addressed at a time when election process for election to the four financial Committees including the Public Accounts Committee had not been started and the media was info....
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....of the Chairman/Chairperson of all the Committees for the year 2021-2022. Sl No. Name of the Committees Name of the Chairman/Chairper son 1 Committee on Public Accounts Shri Mukul Roy 2-13 *** *** (emphasis supplied)" 45. A perusal of the contents of the aforesaid declaration made by the Speaker shows that he specifically stated that certain members to the Financial Committee have been elected whereas certain Members of the traditional Assembly Committees have been nominated by him. He further referred to the fact that Rule 255(1) of the Rules of Business empowers the Speaker to appoint Chairman/Chairperson of a Committee including the Financial Committee(s). He further specifically noted that in case of Committee on Public Accounts in the West Bengal Legislative Assembly, a very healthy and rich tradition and convention have grown in the last 54 years or so, to appoint a Member of the Opposition as the Chairman of the Committee. 7 out of 20 Members of the aforesaid Committee belong to BJP, the party in opposition. Following the established convention, the Speaker had to appoint a person from amongst the 7 Members as the Chairman o....
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....nd it appropriate to refer to the judgment of Hon'ble the Supreme Court in Supreme Court Advocates-on-Record Association's (1993) case (supra). In the aforesaid judgment Hon'ble the Supreme Court opined that there is distinction between the 'constitutional law' and an 'established constitutional convention'. Both are binding in the field of their operation. Once it is found that a particular convention exists, it becomes part of the constitutional law. Para 353 thereof is extracted below: "353. We are of the view that there is no distinction between the "constitutional law" and an established "constitutional convention" and both are binding in the field of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the "constitutional law" of the land and can be enforced in the like manner." 49. As in the case in hand all the three ingredients, which are required to accept the convention as noticed by the Speaker in the declaration made by him as a constitutional convention, are available the same can very well be treated as constitutional ....
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....cle was subject matter of consideration before Hon'ble the Supreme Court wherein it was opined that there is a difference between the term 'irregularity' and 'illegality'. In case illegality is alleged the Court can always examine. The same will not be protected from judicial scrutiny. 52. In Raja Ram Pal's case (supra) a Constitution Bench of Hon'ble the Supreme Court opined that there is a distinction between 'procedural irregularity' and 'substantive illegality'. The proceedings which may be tainted on account of substantive illegality or unconstitutionality as opposed to those merely irregularity cannot be held to be protected from judicial scrutiny. Principles relating to parameter of judicial review have been summed up in Para 431 thereof. Relevant Paras 360, 366 and 431 are extracted below. "360. The question of extent of judicial review of parliamentary matters has to be resolved with reference to the provision contained in Article 122(1) that corresponds to Article 212 referred to in Pandit Sharma (II). On a plain reading, Article 122(1) prohibits "the validity of any proceedings in Parliament" from being "called in q....
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....e legislature are for the determination of the legislative authority and not for determination by the courts; (d) The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature; (e) Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges, etc. have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one; (f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power; (g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested and the Court would confine itself ....
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....ffect are made, the court may examine the validity of the said contention, the onus on the person alleging being extremely heavy; (q) The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution; (r) Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed; (s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny; (t) Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action; (u) An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-com....
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....f substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny." 55. In Rojer Mathew's case (supra), Hon'ble the Supreme Court examined the validity of decision of the Speaker treating a Bill to be a Money Bill, the opinion of the Speaker on which was final in terms of Article 110(3) of the Constitution of India. Relevant paras 273, 274, 275, 282, 289, 291, 292 are extracted below. "273. Article 122(1) provides immunity to proceedings before Parliament being called into question on the ground of "any alleged irregularities of procedure". In several decisions of this Court which construed the provisions of Article 122 and the corresponding provisions contained in Article 212 for the State Legislatures, a distinction has been drawn between an irregularity of procedure and an illegality. Immunity from judicial review attaches to the former but not to the latter. This distinction found expression in a seven-Judge Bench decision of this Court in Special Reference No. 1 of 1964 (Special Reference). This Court held: (AIR p. 768, para 62) "62. Article 212(2) confers immunity on the officers and members of the legislature in wh....
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....lear that prohibition against examination on the touchstone of "irregularity of procedure" does not make taboo judicial review on findings of illegality or unconstitutionality. *** 398. the court will decline to interfere if the grievance brought before it is restricted to allegations of "irregularity of procedure". But in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122, or for that matter by Article 105." (emphasis supplied) 275. The fundamental constitutional basis for the distinction between an irregularity of procedure and an illegality is that unlike in the United Kingdom where parliamentary sovereignty governs, India is governed by constitutional supremacy. The legislative, executive and judicial wings function under the mandate of a written Constitution. The ambit of their powers is defined by the Constitution. The Constitution structures the powers of Parliament and the State Legislatures. Their authority is plenary within the field reserved to them. Judicial review is part of the basic structure of the Constitution. Any exclusion of judicial review has t....
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....eated by the Constitution are subject to its norms. No constitutional institution wields absolute power. No immunity has been attached to the certificate of the Speaker of Lok Sabha from judicial review, for this reason. The Constitution-makers have envisaged a role for the judiciary as the expounder of the Constitution. The provisions relating to the judiciary, particularly those regarding the power of judicial review, were framed, as Granville Austin observed, with "idealism". Courts of the country are expected to function as guardians of the Constitution and its values. Constitutional courts have been entrusted with the duty to scrutinise the exercise of power by public functionaries under the Constitution. No individual holding an institutional office created by the Constitution can act contrary to constitutional parameters. Judicial review protects the principles and the spirit of the Constitution. Judicial review is intended as a check against arbitrary conduct of individuals holding constitutional posts. It holds public functionaries accountable to constitutional duties. If our Constitution has to survive the vicissitudes of political aggrandisement and to face up to the pre....
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....ly can also be gone into. The only prohibition is on the ground of 'irregularity of procedure' but if there is substantial illegality pointed out, the Courts can always interfere. It is to maintain the constitutional values. The role of Speaker is critical in maintaining the balance between the democratic values and the constitutional considerations. Reference can be made to Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595. Being a constitutional authority he is expected to discharge his duty above the party lines. 57. It has remained undisputed on record that respondent No. 2 had contested the State Assembly Election on a BJP ticket. Following table will show certain other important dates: Date Events May 02, 2021 The result of the Assembly Election was declared. The respondent No. 2 was elected as MLA on a BJP ticket. June 11, 2021 The respondent No.2 defected from BJP to AITC. June 17, 2021 A petition was filed by Suvendu Adhikari, another member of Legislative Assembly, for disqualification of respondent No.2. The petition is still pending with the Speaker. June 24, 2021 20 MLAs including respondent No.2 were....
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.... cannot be permitted to be justified now stating as there was no such convention. In fact it is not a case of mere irregularity in the procedure adopted, rather it is the illegality committed by the Speaker in nominating a person, who had in fact defected from BJP to AITC. In case the petition for his disqualification is allowed, he cannot even be a Member of the House, hence, not eligible to be a Member of the Committee, what to talk of its Chairman. 61. In the writ petition filed by the petitioner specific pleadings have been raised that the respondent No. 2 had contested and was elected as a Member of the Legislative Assembly on the BJP ticket. He defected to AITC and a petition for his disqualification was filed on June 17, 2021. The same is still pending. Though the aforesaid facts are in specific knowledge of the respondents but the same have not been specifically denied. 62. In the case in hand as is evident from the facts on record there is failure on the part of the Speaker to discharge his constitutional duty coupled with established admitted constitutional conventions. Apparently he has worked on dictates. Finally, he was caught in the web knitted by him. On one ha....
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....on the ground that he was not keeping good health. The same was seriously opposed by the learned Counsel for the petitioner stating that a day before the respondent No. 2 had appeared on electronic media making certain statements. The fact was not disputed by the learned Counsel appearing for the respondent No. 2. All these factors erode the faith of the people in the constitutional system. In our Constitution no organ is sovereign as each organ is amenable to constitutional checks and controls. In the scheme of things the Courts are entrusted with the duty to be the watchdog and guarantor of the Constitution. It is in discharge of that duty that this Court has been called upon to examine the issue. 66. In view of the aforesaid factual matrix and the legal position as discussed above this Court is of the view that the action of the Speaker can be examined in its power of judicial review as the same does not fall merely in the ambit or "irregularity of the procedure" for which protection is available under Article 212(1) of the Constitution of India. The action of the Speaker is on wrong premise even as per the facts admitted by him in the declaration made at the time of appointm....
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....d that the issue could be examined in a quo-warranto proceedings. Paras 51 and 52 from the judgment in B.R. Kapur's case (supra) are extracted below: "51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the Legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary -- unsupported by any authority -- must be rejected. 52. The judgment of this Court in Kumar Padma Prasad v. Union of India is a case in point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of office could be administered to him, quo warranto proceedings were taken against him in that High Court. An in....
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...., the Governor exercised her discretionary powers, therefore, her action is not justiciable. Yet another submission is that the Governor had only implemented the decision of the majority party, in appointing Respondent 2 as a Chief Minister i.e. she had only given effect to the will of the people. 79. Insofar as it relates to Article 361 of the Constitution, that the Governor shall not be answerable to any court for performance of duties of his office as Governor, it may, at the very outset, be indicated that we are considering the prayer for issue of the writ of quo warranto against Respondent 2, who according to the petitioner suffers from disqualification to hold the public office of the Chief Minister of a State. A writ of quo warranto is a writ which lies against the person, who according to the relator is not entitled to hold an office of public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show, by what authority that person is entitled to hold the office. The challenge can be made on various grounds, including on the grounds that the possessor of the office does not fulfill the re....
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....duties of his office. The question of fulfilling the legal requirements and qualifications necessary to hold a public office would be considered in the proceedings, independent of the fact as to who made the appointment and the manner in which the appointment was made. Therefore, Article 361 of the Constitution would be no impediment in examining the question of entitlement of a person, appointed by the Governor to hold a public office, who according to the petitioner/relator is usurper to the office." (emphasis supplied) 71. In Central Electricity Supply Utility of Odisha's case (supra) it was observed that the basic purpose of writ of quo-warranto is to confer jurisdiction on the constitutional Courts to see that a public office is not held by an usurper without any legal authority. A Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds. Relevant paras 21 and 22 thereof are extracted below: "21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the ....
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.... 74. The word "Public Officer" has been defined in Code of Civil Procedure to include every officer in the service or pay of the Government or remunerated by the fee or commission for performance of any duty. In the case in hand, it cannot be denied that the Members of the Legislative Assembly get their salaries from the public exchequer. That means from the public exchequer. 75. A 'Public Office' is the right, authority and duty created and conferred by law, by which an individual is vested with powers to exercise some government function for the benefit of the public. The determining factor, the test is whether the Office involves delegation of some of the solemn functions of government, either executive, legislative or judicial to be exercised by the holder for the public benefit. 76. The issue with reference to the term 'Public Servant' as contained in the Prevention of Corruption Act, 1988, was examined by Hon'ble the Supreme Court in P.V. Narashima Rao's case (supra). While interpreting Clause (viii) of Section 2(c) of the aforesaid Act, it was opined that MPs and MLAs are included in the category of public servants, who hold office by virtue ....