TaxTMI 
TaxTMI 
2016 (3) TMI 1497
X X X X Extracts X X X X
X X X X Extracts X X X X
....jib Kr. Singh, Advocate, Mr. M.N. Krishnamoni, Sr. Advocate. Mr. R.H. Nabam, Advocate. JUDGMENT & ORDER (CAV) (Justice T. Vaiphei) The legality of the order of disqualifications dated 15-12-2015 issued by the respondent No. 2 and the official Gazette notification dated 15-12-2015 issued by the respondent No. 3 disqualifying the 14 petitioners from the Membership of the Arunachal Pradesh Legislative Assembly ("the Assembly" for short) w.e.f. 15-12-2015 under Article 191(2) read with Paragraph 2(1)(a) and Paragraph 6(1)(2) of the Tenth Schedule to the Constitution of India are under challenge in this writ petition. Before proceeding further, it may be noted that the impugned order of disqualifications had earlier been stayed by the learned Single Judge on 7-1-2016, which was taken to appeal before the Apex Court. The Apex Court, after perusing the records, passed the order dated 18-2-2016 in S.L.P.(C) No. 779-780 of 2016 declining to interfere with the said interim order and instead directing the then Chief Justice (Acting) to place the case before the Division Bench for expeditious disposal, preferably, within two weeks. This is how this writ petition has been taken up by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e improper behavior of the respondent No. 2, who happens to be a close relative of the respondent No. 4. The petitioners were, therefore, compelled to voice their concern within the party within the permissible democratic manners for change of leadership of the party in order to bring about better socio-economic advancement of the State. They would like to emphasize that they had remained loyal to the party, and were proud to be the Members of the Indian National Congress Party(I). According to the petitioners, a series of incidents took place recently in the State involving the respondent No. 4 and the petitioners, which heightened the discontentment amongst them. Two of the Members were also alleged to have been forced to resign as Member of the Assembly under duress/coercion. Nevertheless, the 21 MLAs including the petitioners expressed their loyalty to the Party from time to time. 4. It is also the case of the petitioners that the 5th Session of the said Assembly concluded on 31-10-2015 whereafter the Governor of the State of Arunachal Pradesh ("the Governor" for short) in terms of Article 174(1) of the Constitution of India issued an order on 03-11-2015 summoning the 6th As....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... petitioners, it was claimed by the respondent No. 2 in the connected WP(C) No. 7745/2015 that on 07-12-2015, Sri Rajesh Tacho, Chief Whip, Congress Legislature Party (respondent No. 6) filed a petition under Article 191(2) and Paragraph 8 of the Tenth Schedule read with Paragraph 2(1)(a) & 6(1) & (2), Rule 3(7) and Rule 6 of the Arunachal Pradesh Legislative Assembly (Disqualification on Ground of Defection) Rules, 1987 ("the Rules" for short), before the respondent No. 2 seeking disqualification of all the 14 petitioners. In the said petition, the Speaker was asked to declare that all the 14 petitioners had voluntarily given up their Membership from the INC and its Legislative Party in terms of the provisions of Paragraph 2(1)(A) of the Tenth Schedule and that all these 14 petitioners had become subject to disqualification thereunder and at the sametime the seats held by them in the Assembly had become vacant from the date of the order. It is the specific case of the petitioners that none of them have received any such petition or notice till the filing of the writ petition as is required under the provisions of the Rules and that such knowledge was gathered by them only from the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hange/alteration in the composition of the parties in the House. On 14-12-2015, the State Cabinet, under the Chief Ministership of Sri Nabam Tuki passed a resolution declaring that the decision of the Governor to prepone the Assembly was contrary to the constitutional provisions and advised the Governor to recall or cancel the order dated 09-12-2015 and allow the Sessions to be convened on 14-01- 2016. On 14-12-2015, the respondent No. 1/2 issued a note requesting the Home Minister to ensure full proof security in and around the Assembly Building from 15-12-2015 to 18-12-2015, and no individual including the Legislators be allowed to enter the Assembly Building Premises on the 15th, 16th, 17th and 18th of December, 2015. In the said letter, the Home Minister directed the DGP to deploy security personnel, and the same was passed on to the Superintendent of Police (City). 8. On 15-12-2015, the Superintendent of Police, Itanagar, wrote a letter to the Secretary, State Legislative Assembly, seeking clarification on the Speaker's note dated 14-12-2015 as to under what provision of law, the request of the respondent No. 2 should be enforced. This, according to the petitioners, was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oners or even gazetted or published in the Assembly Bulletin. The petitioner No. 14 (Deputy Speaker) also rescinded the notification dated 15-12-2015 issued by the Secretary, State Legislative Assembly (respondent No. 3) preventing the participation of Sri Wanglam Sawin and Sri Gabriel Denwang Wangsu in the proceeding of the House. On the same day, the respondent No. 2, in turn, issued a Press release declaring that there should be no Assembly Session from 15th to 18th of December, 2015 and that all orders/notifications issued by the Deputy Speaker on 15-12-2015 should be treated as null and void. 9. According to the petitioners, on 16-12-2015, the petitioner No. 14 issued an order holding that the Press release of the Speaker (Sri Nabam Rebia) (respondent No. 2) that there would be no 6th Session on 16-12- 2015 onwards, as illegal and that the 6th Session of the Legislative Assembly should be held as scheduled from 16-12-2015 to 18-12-2015. On the same day, the petitioner No. 14 wrote a letter to the Governor stating that the Assembly premises are locked and Civil and Police administration were defiant and were not co-operating in the holding of the 6th Session of the Assembly ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioner No. 14, now functioning as the Speaker of the Assembly, wrote to the then Chief Minister (respondent No. 4) informing him about the business of the 6th Session to be conducted on 17-12-2015 and enclosed therewith the Bulletin Part-II and the list of business for 17-12-2015. The 33 MLAs of the 60 Members House presided over by the petitioner No. 14 as Speaker then adopted a motion on Composite Floor Test, showing their no confidence in the Congress Government in the State led by Nabam Tuki (respondent No. 4). The motion for Composite Floor Test was then moved by 11 BJP MLAs and 2 Independent MLAs and the same was passed by all the 33 MLAs including the 20 MLAs from Congress excluding the Deputy Speaker. The proceeding of the House was then published in Bulletin Part-I. The petitioner No. 14 thereafter informed the Governor about the proceeding by his letter dated 17-12-2015 and enclosed therewith the Bulletin Part-I and other relevant records. He also sent a report to the Governor on 17-12-2015 informing him about the collapse of Civil and Police administration at Naharlagun on 17-12-2015, which resulted in sitting of the 6th Session at Shoto-Kan Karate Training Hall, Naharla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....WP(C) No. 7745/2015, they contended that the impugned notification dated 15-12-2015 disqualifying them from the Membership of the Assembly is void ab-initio and are now preferring this writ petition challenging the legality of the aforementioned notification and orders purportedly passed by the respondent No. 2. The order of the respondent No. 2 has been challenged on the ground of mala fide, violation of the principles of natural justice and violation of the various provisions of the Rules, which resulted in grave miscarriage of justice. The petitioners are, therefore, seeking the intervention of this Court by way of this writ petition to quash the impugned order dated 15- 12-2015 disqualifying them under Tenth Schedule to the Constitution of India and the notification dated 15-12-2015 issued by the respondent No. 3 in connection therewith. 12. Opposing the writ petition, the respondent No. 1 (Nabam Rebia) and the respondent No. 6 (Rajesh Tacho) filed their respective affidavits raising preliminary objections against the maintainability of the writ petition. The respondent No. 1/2 submits that the writ petition is liable to be dismissed inasmuch as the petitioners produced a fa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... g) As the petitioners did not make candid disclosure of relevant and material facts, they are guilty of misleading the Court and their petition should be dismissed at the threshold without considering the case on merit. 13. It is also contended by the answering respondent that none of the grounds raised by the petitioners in the writ petition could constitute a defense under Article 191(e)(sic) read with Paragraph 2(1)(a) of the Tenth Schedule to the Constitution of India; the order of disqualifications was passed on 15-12-2015 and was in operation till 05-01-2016 before the same was challenged on 04-01-2016 by the respondents and that the grounds raised in the writ petition are mere technicalities and after thoughts to avoid the order of disqualifications, which was incurred by the respondents due to their anti-party activities and for defiance of the policies of the party and the directives of Central Leadership which clearly reposed faith in the leadership of petitioner No. 4 and rejected the claim of the petitioner No. 13 to be the leader of Arunachal Pradesh Congress Legislature Party. It is submitted that the Speaker, while acting under the Tenth Schedule to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent led by the INC Party in the State of Arunachal Pradesh. The petitioners were given ample opportunity by the PCC Chief, Member of AICC, State in-Charge of Arunachal Pradesh, the Chief Minister and the Chief Party Whip to comply with the policies and the directives of the Central Leadership. They continuously and persistently acted against the interest of the party and defied the directives of the party leadership and supported the cause of the opposition against the interest of the party. They were in touch with the Members of the Opposition to conspire against the ruling National Party and did not bother to attend the meetings of Congress Legislature Party in spite of repeated invitations and advises by the Central Leadership. Besides, they were also hobnobbing with the Governor and Members of the opposition party to topple the Ministry, which is against the interest of the party, which set them as candidate in the Legislative Assembly Election held in 2014. 15. As far as the allegation regarding violation of the principles of natural justice is concerned, the answering respondents submits that the petitioners deliberately refused to accept the copies of the petition, which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er is in violation of the provision of disqualification rules is perverse. The answering respondent denies that his order is vitiated by perversity and is made in a hot haste thereby rendering his disqualification order perverse. The petitioners did not even acknowledge the notice of the petition, much less, seek time for filing their comments even though the answering respondent is empowered to grant further time if so required by them. When the petitioners chose not to participate in the proceedings and made a conscious choice to avail of other remedies available to them, they cannot have any legitimate grievance if he proceeded against them ex-parte and pass the impugned order of disqualifications. 16. At this stage, it may be noticed that in so far as the acceptance of the resignation letters of the two MLAs, namely, Sri Wanglam Sawin and Sri Gabriel Denwang Wangsu by the answering respondent is concerned, his order has been upheld by this Court in its order dated 12-01-2016, which was subsequently affirmed by the Apex Court and, as such, this issue has no relevance any more. According to the answering respondent, notices were issued upon the petitioners, who were in Delhi a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by Chief Minister, Sri Nabam Tuki has been reduced to minority and thereof the Government should be asked to give a floor test; b) On 04-11-015, the petitioners addressed a letter to the Governor seeking his interference on the allegations made by them against the Government of their own party. c) Specific allegation was made by the leader of opposition in Arunachal Pradesh State Assembly in his letter dated 12-11-2015 addressed to the Governor that 21 MLAs were not accepting the leadership of the respondent No. 4 and had defied the party whip and the Government had therefore reduced to minority. d) The Governor in his report dated 19-11-2015 clearly recorded the names of the Legislators, who had attended the meeting, which clarified that both the BJP MLAs and the Governor were aware of the dissident activities and the dissident MLAs who did not attend the meeting. e) The report dated 19-11-2015 of the Governor clearly recorded that Sri V Narayansami, AICC, In-Charge of Arunachal Pradesh declared that Sri Nabam Tuki as undisputed leader and claimed the Government is 100% stable. He termed that the absence of 21 dissident MLAs in CLP meeting as a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made by the Speaker (respondent No. 2) to cause service of notice upon each of the petitioners, but they deliberately avoided the service with a view to frustrate the proceeding for disqualifying them as Members of Legislative Assembly and, as such, it cannot be said that they were not given an opportunity of hearing before issuing the disqualification order by the respondent No. 2 and that the conduct of the petitioners, which were already described in detail by the respondent No. 2 in his affidavit-in- opposition, constitute a clear case of defection, which attracts the wrath of disqualification under the Tenth Schedule to the Constitution of India. He, therefore, submits that there is absolutely no illegality or procedural impropriety in the action of the respondent No. 1 in disqualifying the petitioners, and the writ petition, being devoid of merit, is liable to be dismissed. 20. On perusing the materials on record and after hearing the learned senior counsel appearing for the rival parties, we are of the view that the core issues in this writ petition are as follows: 1) Whether the impugned orders of disqualification in respect of the 14 petitioners were issued by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Rules does not contemplate pasting of the notice at the residential wall of the petitioners assuming but not admitting that such pasting was done by the process server. He maintains that the order of the respondent No. 1 does not contain any satisfaction as required under Rule 7(4) to the effect that he would avail of the alternative to proceed to determine the question of disqualification himself without referring the complaint to the Committee. It is also his contention that the mandate of affording reasonable opportunity of hearing to the Members of the Legislative Assembly to defend themselves provided for under Rule 7(7) of the Rules has been given a go by on non-existent grounds nor were copies of the orders contemplated under Rule 8(1)(b) of the Rules ever served upon the petitioners except the petitioner No. 4, who had collected the same on his own, thereby negating the rules of natural justice. The learned senior counsel forcefully submits that it is not necessary for this Court to examine the case on merit, and it may first consider the question as to whether the impugned orders of disqualification have been issued by the respondent No. 1 without hearing the petitioner....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... respondent No. 2 did in the instant case such as his half-hearted approach in the manner of causing service of notice upon the petitioners at Itanagar when he clearly knew from the contents of para 7 of the complaint statements to deny defense to the petitioners clinchingly prove that he was practicing fraud while proceeding with the disqualification case and fraud, therefore, vitiates impugned orders of disqualification passed by him. He relies on Indian National Congress (I) v. Institute of Social Welfare and others, (2002) 5 SCC 685 and Shrisht Dhawan (Smt) v. M/s Shaw Wallace, (1992) 1 SCC 534 to fortify his submission. He, therefore, submits that the impugned order cannot stand and is liable to be quashed even without hearing the case on merit. 23. Refuting the contentions of the learned counsel for the petitioners, Mr. PK Goswami, the learned senior counsel for the respondent No. 2 contends that the case cannot be decided only on the basis of violation of principles of natural justice; assuming but not admitting that there is violation thereof and that the respondent No. 2 is ready to prove that the petitioners No. 1 to 14 have voluntarily given up their membership of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n view of disturbing development following the production of the original records with respect to the impugned orders of disqualification. 24. Before proceeding further, we may also record the submissions made by Mr. M. Krishnamani, the learned senior counsel for the respondent 6 concerning non-observance of principles of natural justice. The learned senior counsel reminds this Court that the justiciability of the order of the Speaker is limited only to illegality, perversity, mala fide and procedural improprieties; if the view taken by the respondent No. 1/2 is a reasonable view, a writ court will not interfere even if another view is more reasonable; the proceedings under the Tenth Schedule to the Constitution are not a departmental enquiry for disciplinary action. He maintains that it was the petitioners who avoided service of notice upon which the respondent No. 1/2 proceeded to hear the complaint and disqualified them; this is not a case of no opportunity but is a case whether sufficient opportunity was granted to the petitioners or not. When the facts are indisputable, and they lead to only one conclusion, namely, the petitioners have voluntarily given up their membership ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the submissions of the learned senior counsel for the respondent No. 1/2 and the learned senior counsel for the respondent No. 4, maintains that non-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the respondent No. 1/2, if otherwise reasonable opportunity of being heard has been given, and it is only if prejudice has been caused by the non-issue or invalid service of notice that the proceeding would be vitiated. He, however, goes on to submit that irregular service of notice would not render the proceedings invalid; more so, if the petitioners by their conduct have rendered service impracticable or impossible. In the instant case, contends the learned senior counsel, the conduct of the petitioners in avoiding service of notice upon them or in instructing their men to chase out the Dak Runner have undoubtedly rendered such service impracticable or impossible; the Speaker was left with no choice but to hear the complainant and dispose of the same resulting in the order of disqualifications, for which they have no legitimate grievance to make. He draws support for his submission from Commissioner of Sales Tax v.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h (1) of paragraph 6 the question as to whether a member of a House has become subject to disqualification under the Schedule is required to be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final. As per the proviso, where the question is as to whether the Chairman or Speaker, as the case may be, has become subject to such disqualification, the question shall be referred to such member of the House or decision as the House may elect and his decision shall be final. Under sub-paragraph (2) of paragraph 6, all proceedings under sub-paragraph (1) of paragraph 6 in relation to any question as to disqualification of a member of a House under the Schedule are to be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212. Paragraph 7 bars the jurisdiction of all courts in respect of any matter connected with the disqualification of a member of a House under the Schedule. Paragraph 8 empowers the Chairman or the Speaker of a House to make rules for giving effect to the provisions of the Schedule and such....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ort thereof to the House; and * * * 7.(1) On receipt of a petition under rule 6, the Speaker shall consider whether the petition complies with the requirement of that rule. (2) If the petition does not comply with the requirement of rule 6, the Speaker shall dismiss the petition and intimate the petitioner accordingly. (3) If the petition complies with the requirements of rule 6, the Speaker shall cause copies of the petition and of the annexures thereto to be forwarded,- i. to the member in relation to whom the petition has been made, and ii. where such member belongs to any legislature party and such petition has not been made by the leader thereof, also to such leader, and such member or leader shall, within seven days of the receipt of such copies, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing thereon to the Speaker. (4) After considering the comments, if any, in relation to the petition, received under sub-rule (3) within the period allowed (whether originally or on extension under that sub-rule), the Speaker may either proceed to determine the question....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d notified in the official Gazette and copies of such decision forwarded by the Secretary to the Election Commission of India and the Government of Arunachal Pradesh." 29. Even a cursory look at the provisions extracted above will show that principles of natural justice are sufficiently incorporated therein. Members of Legislative Assembly are elected by the people in exercise of their democratic right to choose their own rulers unlike the people in the banana republics or some totalitarian States. The policy of the State is that even though political defection should be frowned upon or eliminated altogether from our polity, but in doing so, the member against whom a complaint is lodged with the Speaker for such misconduct must be given an opportunity of hearing before he is penalised with disqualification. The Rules framed by the Speaker of the Arunachal Pradesh Assembly is intended to strike a proper balance between the need to punish political defection on the one hand and the requirement to give fair hearing to such member before disqualifying him. It is now a well-settled proposition of law without reference to cases that in the context of the introduction of sub-article (2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....duct does not amount to voluntarily giving membership of the political party. In that context, the Speaker cannot say that he will first decide whether there has been a merger as an authority and thereafter decide the question whether disqualification has been incurred by the members, by way of a judicial adjudication sitting as a Tribunal. It is a part and parcel of his jurisdiction as a Tribunal while considering a claim for disqualification of a member or members to decide that question not only in the context of the plea raised by the complainant but also in the context of the pleas raised by those who are sought to be disqualified that they have not incurred disqualification in view of a split in the party or in view of a merger. 30. It is against the backdrop of the legal proposition enunciated above that we propose to decide the question as to whether an opportunity of hearing was indeed given to each of the petitioners before issuing the impugned order of disqualifications. At this stage, however, it must be noticed that there are allegations and counter allegations between the parties that the speaking orders produced by the petitioners and the ones produced by the resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Petition. (Page-4C) 2) A copy of circular issued by President, APCC. (Page-14 to 38C) 3) Letter issued by General Secretary, AICC. (Page-47 to 68C) Submitted for further order please. Notes at above. All the relevant papers enclosed below for the further order Pl. Sd/- Illegible 15-12-2015 May endorse file to H.S. for necessary order. Sd/- Illegible 15-12-2015 Ref. note at pre-page The letter addressed to HS by HCM and Leader of CLP and its enclosures including Petition submitted by Shri Rakesh Tacho, Chief Whip of Congress Legislature Party, Arunachal Pradesh Legislative Assembly, Naharlagun for disqualification of 14 members of Sixth Legislative Assembly for anti-party activities under 10th Scheduled of Constitution of India has been examined. All the relevant documents in support of the petition are enclosed for kind consideration by HS. The power to disqualify of a member and/or of group of members are vested to Speaker under the provision of Article 191of the Constitution of India and Rules framed under Tenth Schedule of Constitution of India namely Arunachal Pradesh Legislative Assembly (Disqua....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Hon'ble Speaker Notes & Order notification is placed below for approval/signature plse. S(L) Sd/- Illegible 15/12/15 For approval and sign Pl. U/s (L) Sd/- Illegible 15/12/15 Arunachal Pradesh Legislative Assembly Speaker's Cell Subject: Sitting Arrangement in the House 14(fourteen) Members who have been disqualified from the Membership are not entitle to seat in House and take part in the proceeding of House any more. Please ensure that sitting arrangement are made accordingly. Sd/- Illegible (Nabam Rebia) December 15, 2015 Secretary, LA Sd/- Illegible 15/12/15 Hon'ble Speaker's order at above. Accordingly a notification is placed below for approval and signature plse. For approval and sig pl." 31. The orders and notings extracted in the foregoing are reproduced from the original record produced by the respondent No. 3 (Secretary/Arunachal Pradesh Legislative Assembly). Though a desperate attempt is made by the learned senior counsel appearing for the respondent No. 2 to persuade us to hold that the order dated 15-12-15 found in the original record cannot be take....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r dated 7-12-2015 of the respondent No. 2 which said that notice should be issued to all the members to appear before him on 14-12-2015 at 10-30 hrs (10.30 AM or 10.30 PM?) in his Office Camber at the Legislative Assembly Secretariat. The record further reveals that no mention is made about the service of notice upon any of the petitioners between 7-12-2015 and 14-12-2015, when the respondent No. 2 noted that nobody was present on that day nor did he receive a reply. He then proceeded to order that the matter be put up on 15-12-2015 for consideration/further order. On the fateful day, i.e. 15- 12-2015, one of the officials of the Assembly put up the "Notes & Order" suggesting "to re-call" (recall?) letter received from the Hon'ble Chief Minister and Leader of CLP, Vide No .- CM(A-P)-10/2015 dated 7th December 2015 and enclosing therein the following documents 1) a copy of Petition, 2) A copy of the circular issued by President, APCC and 3) Letter issued by General Secretayr, AICC. Thereafter, another noting referring to the said notes remarked that all the relevant papers were enclosed thereunder for further order. The note was thereafter apparently endorsed to the Speaker. At ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... making a preliminary inquiry and submitting a report to him nor did he publish in the Bulletin or notify in the official Gazette his decision of disqualification of the petitioners. That apart, which is more important, there is not an iota of evidence to show that notice was issued or served upon any of the petitioners. Even if notices were served upon or were actually received by the petitioners also, whether it would be possible for them to appear before the respondent No. 2 when he by the note dated 14/12/15 requested the Home Minister of the State to provide full proof security in and around the Assembly building w.e.f. 15-18 December, 2015 and not to allow the MLAs to enter the Assembly building premises on 15th, 16th, 17th and 18th December, 2015, which request was promptly acted upon by the Home Minister by endorsing it to Superintendent of Police, City. With the kind of direction coming from their political bosses, it is naïve to think that a police officer would defy such an order (even if the order is illegal); it must be remembered that the respondents were still the Government of the day at that time. True, the S.P./Capital by his letter dated 15-12-2015 sought cl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent to knowledge in its legal consequences. Dictionary further states: Co Lit 309 Tomlin's Law Dictionary 17. Notice is making something known, of what a man was or might be ignorant of before. And it produces diverse effects, for, by it, the party who gives the same shall have the same benefit, which otherwise he should not have had; the party to whom the notice is given is made subject to some action or charge, that otherwise he had not been liable to; and his estate in danger of prejudice. 18. "Notice is a direct and definite statement of a thing as distinguished from supplying materials from which the existence of such thing may be inferred." (Per Parke, B. Burgh v. Legge [(1989) 5 M&W 418 : 8 LJ Ex 258 : 151 ER 177]) 19. The dictionary gives some other definitions of "notice" as: - The legal instrumentality by which knowledge is conveyed, or by which one is charged with knowledge. - The term "notice" in its full legal sense embraces a knowledge of circumstances that ought to induce suspicion or belief, as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hose notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices give the appellants the reasonable opportunity contemplated by Sections 11(4)(a) and 11-A(1). In Chatturam v. CIT [(1947) 15 ITR 302: AIR 1947 FC 32] the Federal Court held that any irregularity in issuing a notice under Section 22 of the Income Tax Act, 1922 does not vitiate the proceeding; that the income tax assessment proceedings commence with the issue of the notice but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the Income Tax Officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections. Section 22 and others are the machinery sections to determine the amount of tax. The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from 1-2-1953 to 31-10-1955." 21. Whenever an order is str....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... de novo. 23. In the instant case, the learned Single Judge and the Division Bench have not considered the question of prejudice, grant of reasonable opportunity in the aforesaid perspective. 24. In view of what has been stated in R.P. Dixit case [(200) 9 SCC 324] learned Single Judge was justified in directing de novo assessment by an order of remand. The direction was appropriate as the only ground on which the interference was made related to the violation of principles of natural justice by alleged improper service of notice. The Division Bench was not justified in upsetting the direction. The appeal is allowed but in the circumstances without any order as to costs. 25. We however make it clear that no opinion has been expressed by us on any aspect except limitation. It shall be open to the assessee to raise all other issues before the assessing officer which shall be considered in the proper perspective and in accordance with law." 35. As already noticed, there is absolutely no evidence to show that any notice was ever served upon any of the petitioners. Therefore, the instant case is one where it can truly be said that this is a case of non-issue....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce, it must be borne in mind that "they are not immutable but flexible" and they are not cast in a rigid mould and they cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case. *36. In the view that we have taken that this is a case of non-service of notice to any of the petitioners, the course of action open to us, as suggested by Mr. Rakesh Dwivedi, the learned senior counsel for the petitioners, appears to be to quash the impugned order of disqualifications and remand the case to the Speaker of the Assembly for fresh consideration by him in accordance with law. Mr. PK Goswami, the learned senior counsel for the respondent No. 2 as well as Mr. M. Krishnamani, the learned senior counsel for the respondent No. 6 and Mr. HS Paonam, the learned senior counsel for the respondent No. 4, vehemently oppose such course of action. It is their submission that as the present Speaker is one of the 24 dissident MLAs along with the petitioners herein, he cannot be expected to be impartial or free from bias; this will be tantamount to an appeal fro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....self were subject to disqualification, the question of invoking the proviso to paragraph 6(1) of the Tenth Schedule will arise. For better appreciation of this issue, it will be apposite to refer to paragraph 6 of the Tenth Schedule, which is in the following terms: "6. Decision on questions as to disqualification on ground of defection .- (1) If any question arises as to whether a member of a House has become subject Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212." *38. True, relegating the disqualification question to the current Speaker may give rise to the possi....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament." 17. In M.P. Special Police Establishment v. State of M.P. [(2004) 8 SCC 788 : 2005 SCC (Cri) 1] a Constitution Bench of this Court observed that as the office of the Lok Ayukta is held by a former Judge of this Court, it would be difficult to assume that such authority would give a report without any material whatsoever. Although no law was laid down in this behalf, but, evidently those observations are pointers to show that normally a report from such a high officer should not be disbelieved. 18. It is not that the Lok Ayukta was not inclined to get the matter inquired into by an outsider. He appointed one Shri S.K. Arora. It is the appellant himself who raised an objection thereagainst. He categorically stated that no outsider should be appointed as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he respondents, the Speaker shall have to constitute a Committee as contemplated by Rule 7(4) of the Rules. As we decide to quash the impugned disqualification orders for non- observance of principles of natural justice, we do not think it necessary to deal with the merit of the case or refer to the numerous decisions of the Apex Court cited by the counsel, especially by Mr. P.K. Goswami, the learned senior counsel for the respondent No. 1/2 as they mostly relate to the merit of the case. The preliminary objection raised by the respondents stands overruled as violation of principles of natural justice strikes at the root of the case. *40. The offshoot of the foregoing discussion is that this writ petition succeeds. The impugned order of disqualifications dated 15-12-2015 found in the original record and the official Gazette Notification dated 15-12-2015 issued by the respondent No. 2 are hereby quashed. Necessarily, the so- called disqualification orders both bearing dated 15-12-2015 produced by the petitioners and the respondents respectively are to be treated as non-est, and are, therefore, declared inoperative having no force of law. Consequently, we issue the following direc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....est parliamentarians, the late Madhu Limaye, who in his article in the Kolkata daily, The Telegraph, published sometime in 1985 when the Bill was under consideration in the Parliament. According to him, the main reason for defection being the lure of ministerial berth in the Government, the practical solution for eliminating the evils of defection does not lie in disqualifying a Member but in denying him a ministerial berth. The other alternative is to make the post of Speaker apolitical like in England where once he is so elected, he severs all kinds of relationship with his party and is re-elected unopposed. "Once a Speaker, always a Speaker" is the famous maxim in U.K. This can make him insulated from the rough and tumble of politics and decide the disqualification issue fairly and fearlessly. We are not unmindful of the fact that none of above options can ensure a fool-proof system, but when the existing dispensation has miserably failed us, the time has really come to explore other alternatives. In any case, the bottom line is that it is not really the system which fails us; it is rather the individuals who operate the system who fails us. After all, law can always be bent or ....