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2021 (9) TMI 1458
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....rguments 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 instruments and other manifold artful practices, even though it may be difficult to get at, it being invisible, even so a judge shall extract the dart of inequity which has entered ....
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....stice 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 of allegiance to the Constitution and is also accountable to the people of this Country. There are indeed numerous decisions of this Court where constitutional issues have been adjudicated upon t....
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.... 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 Committee on Public Accounts, 7 out of 20 members belong to BJP i.e. the opposition, the respondent No. 2, taking him to be a member belonging to the BJP, was nominated as the Chairman thereof. This clearly est....
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.... 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, (2014) 1 SCC 161. ARGUMENTS ON BEHALF OF THE RESPONDENT NOS. 1 & 3 10. Mr. Kishore Datta, learned Advocate General, appearing for respondent Nos. 1 and 3 submitted that though the petitioner has tried to use the ....
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....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 Committee on Public Accounts being MLA belonging to BJP. As far as his disqualification is concerned on account of his alleged defection to AITC, the petition is still pending consideration before the Speaker. 13. It was furth....
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....f 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 Constitution. These are not mandatory and are merely directory in terms of judgment of the Patna High Court in Karpoori Thakur and Another v. Abdul Ghafoor and Others, AIR 1975 PATNA 1. ARGUMENTS ON BEHALF OF THE RESPONDENT NO. 2 ....
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....embly & 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.P. Anand v. H.D. Deve Gowda, (1996) 6 SCC 734. REPLY TO THE ARGUMENTS OF THE RESPONDENTS BY THE PETITIONER 20. In response, Mr. Vaidyanathan, learned Senior Counsel appearing for the petitioners submitted that there is no response by ....
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....r 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 the Constitution of India. Hence, any convention will be treated as a constitutional convention. Even if Rule 255 of the Rules of Business does not provide that a member of the opposition party will be the chairman of the Committee on Public Accou....
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....ance 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 PETITION 25. In Para 21 of Keisham Meghachandra Singh's case (supra) Hon'ble the Supreme Court observed that a member of the Assembly found to be disqualified, his continuance in the Assembly even for a day is illegal and unconstitutional and as a co....
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....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 Assembly. The matter was kept pending for years together. Instead of remanding the matter back to the Speaker as their term was going to expire very soon, Hon'ble the Supreme Court had taken up the task of deciding on the question of their disqualification. It was observed ....
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.... 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 provisions of this Constitution, its procedure and the conduct of its business. (2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature for the corresponding Province shall ....
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....ll 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 which governs it; and (c) that every re-appropriation has been made in accordance with such rules as may be prescribed by the Governor or by the Finance Minister, as the case may be. (3) It shall also be the duty of the Committee- (a) to examine the statement of accounts showing the income and expenditure of State corporations, trading and manufacturing schemes, concerns and projects together with the balance sheets and statements of profit and loss accounts whic....
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.... 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 for Committee on Papers laid on the table of the House. 33. Rules 301-303 of the Rules of Business provide for constitution of Committee on Public Accounts, the one with which we are concerned in the present case. The Committee on Public Accounts is constituted for examination of accounts showing the appropriation of sums granted by the House for the expenditure of the State Government, annual finance accounts of the State Government and such other accounts laid before the House, as the Committee may think fit. While scrutinizing app....
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....on 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 legislative party in opposition, was nominated as the Chairman to head that Committee. In addition, the Chairpersons of other Committees were also nominated. 38. Importance of role of committees constituted in the Parliament and the State Assembly has been considered by Hon'ble the Supreme Court in Ajit Mohan and Others v. Legislative Assembly National Capital Territory of Delhi and Others. Relevant paras thereof are extracted below: "175. The committees constituted by legislative bodies like the Assemblies for the States and Parliament for the Union, perform ....
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....owever, 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. Effective working of the Committees is a prelude to the core working of the Assemblies. The Committees are in fact an extension of legislature itself and do informed work. These Committees are consisted of Members of the Assembly having affiliation to different parties. It is a participative process in the democratic set up. The importance of the Committee on Public Accounts is evident from the fact that Rule 302 of the Rules of Business provides for proportional representation. The Chairperson has to be appointed by the Speaker. It is not the power to be exercised by the Assembly. The....
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....cerned, 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 making nomination by the Central Government, on the strength that on earlier occasions the nominations were made by the Central Government in consultation with the government of Puducherry. It was opined therein, that the constitutional conventions are born and recognized in working of the Constitution. These always aim to achieve higher values and objectives enshrined in the Constitution. The conventions are not static but can change with the change in constitutional values and interpretations. The conventions cannot run contrary to express provisions of the Constitution or underline const....
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....ive 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 informed of the contents of the matter. Thereafter, there has been much speculation in the media on the matter. Hon'ble Members, Sub-rule (1) of Rule 255 of the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly empowers the Speaker to appoint the Chairman/Chairperson of a Committee including the financial Committee(s). In the case of other Committees of the House excluding the financial Committees, the Speaker nominates the different Members of the Committee and appoints the Chairmen/Chairpersons of the Committees from amongst the Members so nominated. But in the case of four financial Committe....
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....(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 of the Committee on Public Accounts. He further mentioned that Committee on Public Accounts enjoys a special status in the committee system. Taking into account his experience in parliamentary affairs, the respondent No. 2 being Members of the Assembly belonging to BJP was found to be the most competent person to head that Committee. Hence, he was appointed as such. 46. If the tests laid by Sir Ivor Jennings are applied in the case in hand, firstly there are precedents available in the form of admission of the Speaker himself in the declaration made by him at the time of appointment of Chairman of the Committee on Public Accounts that a very healthy and rich tradition and convention have grown for the las....
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....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 convention. This is in additional to the fact that the same is the admitted case of the Speaker himself in the declaration made. He cannot come out of the admission made by him. The same is also keeping in view the healthy democratic set up and maintaining the constitutional values. It is only after the action was challenged in Court that the respondents have come up with different pleas to come out of the declaration made by the Speaker at the time of nomination of the Chairman of the Committee. The fact remains that the Chairman was declared keeping in view the convention and noticing all the facts. Nothing was pointed out at the time of hearing that the constitutional convention as was admitted in the declaration and....
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....ial 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 question" in a court merely on the ground of "irregularity of procedure". In other words, the procedural irregularities cannot be used by the court to undo or vitiate what happens within the four walls of the legislature. But then, "procedural irregularity" stands in stark contrast to "substantive illegality' which cannot be found included in the former. We are of the considered view that this specific provision with regard to check on the role of the judicial organ vis-à-vis proceedings in Parliament uses language which is neither vague nor ambiguous and, therefore, must be treated as the constitutional mandate on the subject, rendering unnecessary search for an answer elsewhere or invocation of principles of harmonious construction. x ....
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....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 to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error; (h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens; (i) The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct; (j) If a citizen, whether a non-Member or a Member of the legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the imp....
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....ing 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-compliance with rules of natural justice and perversity. 53. Para 54 of the judgment in Amarinder Singh's case (supra) can also be referred to where even the proceedings in the House were also examined by the Supreme Court, once found to be tainted on account of substantive or gross illegality or unconstitutionality. The same is extracted below. "54. Hence, we are empowered to scrutinise the exercise of legislative privileges which admittedly include the power of a legislative chamber to punish for contempt of itself. Articles 122(1) and 212(1) make it amply clear that courts cannot inquire into matters related to irregularities in observance of procedures before the legislature. However, we can examine whether proceedings conducted under Article 105(3) or 194(3) are "tainted on account of substantive or gross illegality or unconstitutionality". The facts before us do not merely touch on a procedural irreg....
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....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 whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular." (emphasis supplied) This formulation was applied in the context of Article 122 by the Constitution Bench in Ramdas Athawale (5) v. Union of India (Ramdas Athawale): (SCC pp. 13-....
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....nd 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 to be understood in the context in which it has been mandated under a specific provision of the Constitution. Hence, the provisions contained in Article 122 which protect an alleged irregularity of procedure in the proceedings in Parliament being questioned cannot extend to a substantive illegality or a violation of a constitutional mandate. x x x x 282. Mohd. Saeed Siddiqui proceeds on an incorrect construction of the decision in Mangalore Beedi and on an erroneous understanding of Article 255. The decision in M.S.M. Sharma v. Krishna Sinha which was adverted to in Mohd. Saeed Siddiqui was discussed in the Special Reference to hold that the validity of the proceedings in a legislative chamber can be questioned on the ground of illegality. The decisions in the Special Reference, Ramdas Athawale (5) and Raja Ram Pal clearly hold that the validity of the proceedings before Parliament or a State Legislature can be subject to judicial review on the ground of an illegality (as distinguished fr....
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....holds public functionaries accountable to constitutional duties. If our Constitution has to survive the vicissitudes of political aggrandisement and to face up to the prevailing cynicism about all constitutional institutions, notions of power and authority must give way to duties and compliance with the rule of law. Constitutional institutions cannot be seen as focal points for the accumulation of power and privilege. They are held in trust by all those who occupy them for the moment. The impermanence of power is a sombre reflection for those who occupy constitutional offices. The Constitution does not contemplate a debasement of the institutions which it creates. The office of the Speaker of the House of People, can be no exception. The decision of the Speaker of Lok Sabha in certifying a Bill as a Money Bill is liable to be tested upon the touchstone of its compliance with constitutional principles. Nor can such a decision of the Speaker take leave of constitutional morality." x x x x 291. From the above analysis, it is evident that the judgments of both D.Y. Chandrachud, J. and Ashok Bhushan, J. categorically held that the decision of the Speaker to certify a Bill as a Money ....
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....ation of respondent No.2. The petition is still pending with the Speaker. June 24, 2021 20 MLAs including respondent No.2 were elected as members of the Committee on Public Accounts. 7 out of these are belonging to BJP, the main Opposition party. July 09, 2021 The respondent and the Speaker nominated respondent No.2 as the Chairman of the Committee on Public Accounts treating him to be a member belonging to the legislative party of the BJP 58. The declaration was made while noticing the fact that in the West Bengal Legislative Assembly there is a healthy and rich tradition to have a member of the Opposition as the Chairman of the Committee on Public Accounts. Keeping in view the important function, the Committee discharges and also the transparency in the accounts. 59. Though at the time of hearing learned Counsel appearing for respondents sought to take a stand that there is no tradition as such in the West Bengal State Assembly to nominate a member of the legislative party in opposition as the Chairman of the Committee on Public Accounts. However, considering the categoric admission made by the Speaker in his announcement while appointing the Chairman of the Committee no su....
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....nal conventions. Apparently he has worked on dictates. Finally, he was caught in the web knitted by him. On one hand, he was fair enough to state in the declaration made by him that there is a rich and healthy tradition in the Assembly of having a Member of the opposition as the Chairman of the Public Accounts. The tradition was being followed for a period of 54 years or so. Keeping in view that tradition, the Speaker appointed a Member of the opposition party as the Chairman of the Committee on Public Accounts. However, now the aforesaid declaration is sought to be explained that it is not necessary to have a Member of opposition party as the Chairman of the Committee on Public Accounts. In fact, he was not even required to be impleaded as respondent in the petition to answer the pleadings as the contents of the declaration made by him are sufficient. Any denial by the respondent No. 2 is meaningless. 63. The protection given in Article 212(2) is to the officer or the member of the legislature in discharge of his duties. Both the clauses of Article 212 operate in different fields. Clause (1) talks about challenge to the proceedings whereas Clause (2) grants protection to the offi....
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.... is on wrong premise even as per the facts admitted by him in the declaration made at the time of appointment of the Chairman of the Public Accounts. 67. It is not a case of procedural irregularities, which could debar this Court from entertaining the petition in terms of Article 212 of the Constitution of India. It is a case of blatant illegality. Firstly, the Speaker was required to decide the petition filed before him for disqualification of the respondent No. 2 having defected from BJP to AITC, as a result of which his membership to the Assembly itself was in doubt. In case the respondent No. 2 does not remain the Member of the Assembly, there was no question of he being even the Member of the Committee what to talk of its Chairman. Further, the established constitutional convention which even as per the declaration made by the Speaker at the time of appointment of the Chairman of the Committee was also violated. In fact, recently, Hon'ble the Supreme Court had to comment upon the conduct of the Speaker in many cases for the reason that they were not found to be discharging their duty independently, rising above the party lines. It was commented upon in Shrimanth Balasaheb....
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....ed to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed." (emphasis supplied) 70. In his concurring judgment Brijesh Kumar, J. negated the argument that Article 361 of the Constitution shall come to the rescue of the party therein that the Governor is not answerable to any Court for performance of duties of his office as Governor. The Court opined that it was considering the prayer for issuance of writ of quo-warranto against respondent No. 2 therein, who allegedly suffered from disqualification to hold the office of the Ch....
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....e grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars the person to hold such office. So as to have an idea about the nature of action in the proceedings for writ of quo warranto and its original form, as it used to be, it would be beneficial to quote from Words and Phrases, Permanent Edn., Vol. 35-A, p. 648. It reads as follows: "The original common law writ of quo warranto was a civil writ at the suit of the Crown and not a criminal prosecution. It was in the nature of a writ of right by the King against one who usurped or claimed franchises or liabilities, to inquire by what right he claimed them. This writ, however, fell into disuse in England centuries ago and its place was supplied by an information in the nature of a quo warranto, which in its origin was a criminal method of prosecution, as well as to punish the usurper by a fine for the usurpation of the franchise, as to oust him or seize it for the Crown. Long before our revolution, however, it lost its character as a criminal proceeding in everything except form and was applied to the mere purposes of trying the civil right, seizing the....
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....ited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority. 22. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on the one hand and an interest by a citizen as a relator to the Court on the other. The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the Court. The Court i....
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....office by virtue of which they are authorized or required to perform public duty. 77. Article 194(3) provides for powers, privileges, etc. of the House of Legislatures and of the Members of the Committees thereof. Rules of Business provide for constitution of various Committees. The Members and the Chairmen thereof are none else than the Members of the Legislative Assembly. The importance of the Legislative Committees has been discussed by Hon'ble the Supreme Court in Ajit Mohan and Others's case (supra). It cannot be disputed that the Members of the Committee discharge public functions. They are elected public representatives. Even as per the Rules of Business, various powers have been conferred on the Chairperson of the Committee on Public Accounts where he can even summon any person and record evidence. Still further the Committee has to examine the accounts and the budget. This function cannot be treated less important as everything revolves around finances in a State. Hence, the argument raised by learned Counsel for the respondents that the office being held by respondent no. 2 is not a public office is totally misconceived and deserves to be rejected. 78. Once Offi....