Telangana High Court
Alleti Maheshwar Reddy vs The State Of Telangana on 9 September, 2024
Author: B. Vijaysen Reddy
Bench: B.Vijaysen Reddy
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY WRIT PETITION Nos.9472, 11098 and 18553 of 2024 COMMON JUDGMENT:
In all these writ petitions the common question which arises
for consideration is “Whether the High Court in exercise of power of
the judicial review can issue direction to the Speaker of Legislative
Assembly to decide disqualification petitions within a fixed time
frame”. Hence, the writ petitions are disposed of by this common
judgment.
2. WP.No.9472 of 2024 is filed by Padi Kaushik Reddy, Bharat
Rashtra Samithii (BRS) MLA and WP.No.18553 of 2024 is filed by
Alleti Maheshwar Reddy, Bharaitya Janata Party (BJP) MLA and Floor
Leader of BJP Legislature Party in Telangana State Legislative
Assembly, to declare the action of the respondent No.2-Speaker of
the Assembly in not adjudicating their petitions dated 18.03.2024
and 01.07.2024 respectively seeking disqualification of respondent
No.5-Danam Nagender, MLA, Khairatabad Constituency, as being
arbitrary, unconstitutional, against the spirit of democracy and
X Schedule of the Constitution of India and for a direction to the
Speaker to receive and decide the disqualification petitions within
four weeks/three months.
2
3. WP.No.11098 of 2024 is filed by Kuna Pandu Vivekananda,
BRS MLA, to declare the action of the respondent No.2-Speaker in
not acknowledging the receipt of disqualification petitions dated
02.04.2024 and 08.04.2024 filed against the respondent No.5
(Venkata Rao Tellam – MLA of Bhadrachalam Constituency) and
respondent No.6 (Kadiyam Srihari – MLA of Station Ghanpur Station
Constituency) sent by E-mail and registered post and not initiating
the process of deciding disqualification petitions as being illegal,
arbitrary and violative of X Schedule of the constitution of India and
to direct respondent No.2 to decide disqualification petitions within
a period of three months.
4. WP.No.9472 of 2024, being the lead case, the facts therein
are set out as under:
(a) The petitioner contested as a member of Telangana
Legislative Assembly from Huzurabad Assembly Constituency as a
candidate set up by Bharat Rashtra Samiti (BRS) and got declared
as elected candidate on 03.12.2023 from Huzurabad Assembly
Constituency. It is stated that pursuant to the election notification
issued by the Election Commission of India, the respondent No.5
filed his nomination as candidate set up by BRS to 60-Khairtabad
Assembly Constituency on 06.11.2023. The respondent No.5
submitted B Form issued by the President of BRS and filed an
3affidavit in Form No.26 as stipulated under Rule 4A of the Conduct
of Election Rules.
(b) The respondent No.5 was declared as elected candidate
on 03.12.2023 from Khairtabad Assembly Constituency.
On 15.03.2024, the respondent No.5 met the Telangana Pradesh
Congress Committee President and Chief Minister, Mr. A. Revanth
Reddy; Mr. Deep Daas Munshi, All India Congress Committee
(AICC) In charge and Deputy Chief Minister, Mr. Mallu Bhatti
Vikramarka, along with the other Indian National Congress (INC)
leaders and joined INC by wearing INC party Scarf and the same
was circulated in the local news papers along with photographs in
the leading newspapers such as, Eenadu, Andhra Jyothi etc. and it
is a conclusive proof that the respondent No.5 has voluntarily given
up membership of BRS and joined INC.
(c) On 18.03.2024, the petitioner along with other members
of legislative Assembly met the respondent No.2 and submitted
Disqualification Petition under paragraph 2 (1) of the X Schedule
read with Article 191 (2) of the Constitution of India under Rule 6 of
Members of legislative Assembly (Disqualification on Ground of
Defection) Rules.
(d) On 21.03.2024, the INC and AICC released a press note
selecting candidates for the ensuing general elections to the Lok
Sabha wherein the respondent No.5 was declared as a contesting
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candidate set up by INC Party from Secunderabad constituency.
The same was sought to be informed to the respondent No.2 by
way of an additional affidavit along with Annexures but the office of
the respondent No.2 has not given any appointment to them nor
received the additional affidavit. Finally, on 30.03.2024,
the petitioner sent the additional affidavit along with annexures
through registered post to the respondent No.2. Having received
the disqualification petition on 18.03.2024 and additional affidavit,
which was sent through registered post on 30.03.2024,
the respondent No.2 has not issued any notice to the respondent
No.5 nor has adjudicated the disqualification petition filed by the
petitioner.
(e) It is submitted that in a parliamentary democracy the
office of the Speaker is held in very high esteem and respect.
The Speaker is expected to be above parties and politics and he is
said to be the embodiment of propriety and impartiality. The
Speaker of the Assembly is acting as a Tribunal under the X
Schedule of the Constitution of India is bound to decide the
Disqualification Petition within a reasonable time. The Speaker acts
as a Quasi Judicial Authority while adjudicating disqualification
petition. The object underlying the provisions in the X Schedule of
the Constitution of India is to curb the evil of political defections
motivated by lure of office or other similar considerations which
5
endanger the foundations of our democracy. The X Schedule of the
Constitution of India does not confer any discretion on the
Chairman or the Speaker of the house.
(f) That in an identical case viz. R. Bhoopathi Reddy v.
Chairman, Telangana State Legislative Council, Hyderabad,
a Division Bench of the Telangana High Court in WP.No.2698 of
2019 upheld the decision of the Hon’ble Chairman in disqualifying
the candidate in similar circumstances and the writ petition was
dismissed. The aforesaid decision was confirmed by the Supreme
Court in Special Leave to Appeal (c) No.22178 of 2019 dated
07.01.2020.
(g) It is stated that in the instant case, the respondent No.5
voluntarily and unconditionally joined INC and was declared as
candidate for Member of Parliament from Secunderabad
Constituency from INC. In KEISHAM MEGHACHANDRA SINGH v.
SPEAKER, MANIPUR LEGISLATIVE ASSEMBLY 1, the Supreme
Court directed the Speaker of the Manipur Legislative Assembly to
decide the disqualification petition within a period of four weeks
from the date on which the judgment is intimated to him.
5. It is alleged in WP.No.11098 of 2024 that respondents No.5
and 6 were elected as BRS party MLAs; the respondent No.5 met
Sri A. Revanth Reddy, Chief Minster and President TPCC on
1
(2021) 16 SCC 503
6
03.04.2024; on 06.04.2024 respondent No.5 attended public
meeting conducted by TPCC in the name of Telangana Jana Jathara
wherein congress manifesto for General Elections (Parliament)2024
was released by Sri Rahul Gandhi along with INC Party leaders;
on 07.05.2024 respondent No.5 formally joined INC in the presence
of TPCC President, A. Revanth Reddy, and Sri Ponguleti Srinivas
Reddy, Cabinet Minister. Further, it is stated that respondent No.6
on 29.03.2024 met Mr. Deep Dash Munshi, AICC and Member-in-
Charge of TPCC and other INC leaders and made a request to TPCC
President, A. Revanth Reddy and AICC In-charge that his daughter,
namely, Kaidyam Kavya, is interested to contest for Parliament from
Warangal Constituency on behalf of INC and on 31.03.2024,
respondent No.6 along with his daughter joined INC party by
wearing INC party scarf, the same was being widely circulated in
local news papers such as Eenadu, Andhra Jyothi and Times of
India etc. and has also been telecast in Electronic Media viz. TV9,
NTV and TV5.
6. In the counter filed by the respondent No.3-Secretary,
Telangana Legislative Assembly in WP.No.9472 of 204, it is stated
that the writ petition is not maintainable. The petitioner herein has
filed the disqualification petition on 18.03.2024 and the writ petition
was filed on 10.04.2024, by making false allegations,
on presumptions and assumptions, as if the petition submitted by
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the petitioner will not be adjudicated by the respondent No.2.
The disqualification petition will be adjudicated as per law. The writ
petition is premature and liable to be dismissed.
7. It is stated that within one month of filing the disqualification
petition and without even waiting for the initiation of the process,
the petitioner approached this Court. The allegation that the
respondent No.2 did not give appointment to the petitioner is false
and incorrect. The additional affidavit filed by the petitioner,
was received by the respondent No.2 on 27.04.2024.
The respondent No.2 shall discharge his duties as per the
X Schedule of the Constitution of India and the procedure under the
Disqualification Rules 1986. Many disqualification petitions were
filed during the tenure of the BRS party Government before the
then Speaker and they were kept pending till 2018 till dissolution of
the Legislative Assembly without adjudicating the same.
The approach of the petitioner is erroneous, premature and the writ
petition is liable to be dismissed in limine. The writ petition is in the
nature of pre-emptive action without any infraction of right or cause
and is filed in abuse of process of Court. The writ petition is filed in
a post-haste manner without even waiting for the initiation of the
process. The intemperate language used against the office of the
Speaker is improper and the writ petition is liable to be dismissed.
8
8. In the counter affidavit filed by the respondent No.5, it is
stated that the writ petition is filed with malafide intention solely to
impair the political career of the respondent No.5. A Writ of
Mandamus cannot be issued against the respondent No.2, in view
of the decision of the Supreme Court in KIHOTO HOLLOHAN v.
ZACHILLHU 2.
9. Heard Mr. C. Aryama Sundaram, Mr. Gandra Mohan Rao and
Mr. J. Ramchander Rao, learned senior counsel, appearing for
Mr. S. Santosh Kumar, learned counsel for the petitioners in
WP.Nos.9472 and 11098 of 2024 and Mr. Gummala Bhaskar Reddy,
learned counsel for the petitioner in WP.No.18553 of 2024 and
learned Advocate General, Mr. P. Sri Raghuram, learned senior
counsel appearing for Mr. P. Sriram, learned counsel for respondent
No.5 in WP.No.9472 of 2024, Mr. Ravi Shankar Jandhyala, learned
senior counsel appearing for Mr. Thoom Srinivas for respondent
No.5 in WP.No.18553 of 2024; Mr. B. Mayur Reddy, learned senior
counsel, appearing for Mr. Lokirev Preetham Reddy, learned counsel
for respondent No.6 in WP.No.11098 of 2024, Mr. A. Ravinder
Reddy, learned senior counsel appearing for Mr. Ch. Venkateswara
Reddy, learned counsel for respondent No.5 in WP.No.11098 of
2024; Mr. K. Pradeep Reddy, learned counsel for respondent No.3 in
WP.Nos.9472, 11098 and 18553 of 2024 and Mr. Mohd. Omer
2
1992 Supp (2) SCC 651
9
Farooq, learned counsel for respondent No.4 in WP.No.9472 and
11098 of 2024.
Submissions of Mr. C. Aryama Sundaram, learned senior
counsel, appearing for Mr. S. Santosh Kumar, learned
counsel for the petitioner in WP.Nos.9472 and 11098 of
2024:
10. The respondent No.5-BRS MLA filed nomination for Lok
Sabha as INC party candidate. The disqualification petition was duly
filed in terms of Rules 6 and 7 of the Members of the Telangana
Legislative Assembly (Disqualification on Ground of Defection)
Rules, 1986. The petition filed on 18.03.2024 was not disposed of
till end of June 2024. It is settled law that judicial review is
permissible in matters arising out of the X Schedule of the
Constitution of India. The contention of the respondents is that the
petitioner approached this Court in a post-haste manner within one
month from the date of filing of the disqualification petition.
However, even till July 2024, the respondent No.2 has not chosen to
initiate process of disqualification. The action of the respondent
No.2 is a fraud on the mandate of the people. The respondent No.2
is doing nothing about the matter and this Court has jurisdiction
under Article 226 of the Constitution of India to exercise power of
judicial review and direct the respondent No.2 to pass orders within
a time frame.
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11. Learned senior counsel submitted that similar issue fell for
consideration before the Manipur High Court, wherein the decision
of the High Court was confirmed by the Supreme Court in
SLP.No.18659 of 2019 and the Supreme Court fixed three months
outer limit for deciding the disqualification petition. It is the
constitutional duty of the Speaker to act in accordance with law and
this Court, being another constitutional authority, is empowered to
direct the Speaker to perform its constitutional duty and nothing
else. The respondents do not have any defence to contest the
disqualification petition on the principle of res ipsa loquitur and it is
apparent from the face of the record that the respondent No.2 is
unduly delaying the process in the disqualification petition.
It is necessary for this Court to pass orders immediately as the BRS
party apprehends some more defections would take place at the
instance of the respondent No.5. The Speaker is a tribunal, as held
in a catena of decisions and this Court has jurisdiction to direct the
Speaker to pass orders.
Submissions of Mr. Gandra Mohan Rao, learned senior
counsel, appearing for Mr. S. Santosh Kumar, learned
counsel for the petitioner in WP.No.9472 of 2024:
12. The apprehension of the petitioners is that the Speaker failed
to exercise his jurisdiction in deciding the disqualification petition.
The petitions have not been received by the Secretary, Telangana
State Legislative Assembly and the petitioners had to rush to the
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Court seeking for an interim direction. Disqualification petitions
were filed against two MLA’s on 03.04.2024. The Speaker did not
receive the petitions even by 08.04.2024. Thus, on 10.04.2024,
the petitions were sent by registered post and there being no
alternative, the writ petitions were filed on 23.04.2024.
13. The refusal of Speaker/Secretary of Legislative Assembly in
receiving the petitions is an abdication of duty and violation of
Constitutional mandate. The petitioners have been able to explain
the necessity to approach this Court within short time of submitting
disqualification petitions. Danam Nagender, BRS Party elected MLA,
was issued B-Form by INC Party to contest as their MP candidate
from Secunderabad Constituency, such a thing is unprecedented
and it cannot be said that the petitioners have rushed to this Court
without there being any cause of action.
14. The respondents filed counter on 25.06.2024 i.e. two months
after writ petitions were filed. The Speaker is a Tribunal and this
Court has power to direct the Speaker to decide the disqualification
petitions within time frame. KIHOTO HOLLOHAN’s case (2 supra)
does not deal with disqualification and the law laid down in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) is binding
on this Court under Article 141 of the Constitution of India. Even in
SUBASH DESAI v. PRINCIPAL SECRETARY, GOVERNOR OF
12
MAHARASHTRA3, the Supreme Court has given directions to the
Speaker by subsequent orders dated 17.10.2023 and 30.10.2023
and the ratio laid down in KEISHAM MEGHACHANDRA SINGH’s
case (1 supra) was not interfered with. If Danam Nagender is
allowed to continue as MLA, it will be a mockery of democracy and
X Schedule of the Constitution of India.
Submissions of Mr. J. Ramchander Rao, learned senior
counsel, appearing for Mr. S. Santosh Kumar, learned
counsel for the petitioner in WP.No.11098 of 2024:
15. The judgment in KEISHAM MEGHACHANDRA SINGH’s
case (1 supra) case dealing with disqualification petition is holding
the field and is applicable to the facts of the present case.
In subsequent decisions of the Supreme Court, the law laid down in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) case was
not overruled. There is no judgment cited by the respondents,
which diluted the ratio in KEISHAM MEGHACHANDRA SINGH’s
case (1 supra) case. The decision in KEISHAM MEGHACHANDRA
SINGH’s case (1 supra) case was followed by the High Court of
Bombay (Goa Bench) and the High Court of Manipur. The BRS MLAs
being elected on BRS Manifesto and B-Form in December 2023
campaigned for INC Party MP candidates in the General Elections
held in May 2024. Thus, they have voluntarily ceased to be
Members of BRS Party and incurred disqualification.
3
(2024) 2 SCC 719
13
16. The delay on the part of the Speaker in adjudicating the
disqualification petitions is contrary to the Constitutional mandate
and X Schedule of the Constitution of India. The manner in which
petitions are not even received and acknowledged speaks volumes
of the conduct of the Speaker. All the decisions cited by the learned
Advocate General and other learned senior counsel deal with Split,
Merger, Resignation, which are not applicable to the facts of the
case.
Submissions of learned Advocate General:
17. The writ petitions are not maintainable. The conduct of the
parties is necessary to be looked into. The way the writ petitions
are filed and the uncalled for and intemperate allegations made
against the Speaker, does not warrant any indulgence of this Court.
The action of the petitioners is malafide. Within one month of filing
the disqualification petition, WP.No.9427 of 2024 is filed. This Court
can interfere only when the Speaker passes suspension order or
disqualification order.
18. Learned Advocate General vehemently contended that the
disqualification petitions are not maintainable in view of the law laid
down by the Supreme Court in KIHOTO HOLLOHAN’s case
(2 supra). It is submitted that the constitutional validity of Schedule
X of the Constitution of India came up for consideration before the
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Supreme Court wherein it was held that interference can be made
by the Constitutional Courts only when the Speaker renders a
decision. In KIHOTO HOLLOHAN’s case (2 supra) the majority
opinion (three Judges) held that the Schedule X is constitutionally
valid, however, a direction cannot be issued to the Speaker to
decide disqualification petition within a time frame. The minority
opinion (two Judges) held that Schedule X is unconstitutional.
19. In KEISHAM MEGHACHANDRA SINGH’s case (1 supra) the
three Judges Bench of the Supreme Court directed the Speaker of
the Manipur Legislative Assembly to decide the disqualification
petition within three months. The said judgment is contrary to the
law laid by the Supreme Court in KIHOTO HOLLOHAN’s case
(2 supra). The learned three Judge Bench in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) relied on a Five Judge
Bench judgment in RAJENDRA SINGH RANA v. SWAMI PRASAD
MAURYA4. Though the judgment in RAJENDRA SINGH RANA’s
case (3 supra) was rendered by Five Judges, the ratio laid down in
KIHOTO HOLLOHAN’s case (2 supra) was not diluted nor could
have been diluted. In fact, a Division Bench of the Supreme Court
dealing with a similar issue declined to pass any relief in
S.A. SAMPATH KUMAR V. KALE YADAIAH 5.
4
(2007) 4 SCC 270
5
(2021) 16 SCC 528
15
Submissions of Mr. P. Sri Raghu Ram, learned senior counsel
appearing for respondent No.5 in WP.No.9472 of 2024:
20. A writ Court cannot issue Mandamus against the Speaker of
Legislative Assembly. So far no Court has issued Mandamus
directing the Speaker of a Legislative Assembly to decide the
disqualification petition within a time frame. The decision in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) has to be
considered as an order passed under Article 142 of the Constitution
of India and no ratio is laid down in the said decision.
21. The instant writ petition is premature. Writ can be filed only
when a decision is taken by the Speaker and not at the
pre-decisional stage. Innocuous direction cannot be issued by this
Court and it would undermine the dignity of office of the Speaker
and the same had been the consistent view and such judicial
discipline had been followed by various Constitutional Courts.
22. In KEISHAM MEGHACHANDRA SINGH’s case (1 supra) it
was a Writ of Quo Warranto and no Mandamus was issued by the
Supreme Court. When there is conflict between two judgments of
coordinate Benches, the ratio has to be seen. The relief sought for
in the writ petition is a ‘Quia Timet’ action which is not amenable to
judicial review. RAJENDRA SINGH RANA’s case (4 supra) is not a
ratio in ‘Quia Timet’ action. The instant case before this Court is for
issue of Mandamus, which was not the case in KEISHAM
16
MEGHACHANDRA SINGH’s case (1 supra). The petitioner
approached this Court only for political reasons and it is a malafide
action.
23. The petitioners do not have any legal right and there is no
cause of action for filing this writ petition. Even if the matter is
being heard in June/July, the date of filing of writ petition is
relevant to be seen for granting relief and merely because in due
course of time, the matter came up for hearing in June/July, that
would not be a ground to grant relief to the petitioners.
Submissions of Mr. B. Mayur Reddy, learned senior counsel
appearing for Mr. Lokirev Preetham Reddy, learned counsel
for the respondent No.5 in WP.No.11098 of 2024:
24. Prior to the decision of Speaker, no judicial review is
permissible. It is permissible only after decision is taken by the
Speaker. In some circumstances, ongoing action is justiciable.
There is no pleading by the petitioner that he would suffer
irreversible or irreparable injury, which is a condition precedent for
granting relief in the writ petition.
25. The facts in RAJENDRA SINGH RANA’s case (4 supra) are
entirely different. The decision of Speaker was tested in
RAJENDRA SINGH RANA’s case (4 supra) and it is not a case of
inaction of the Speaker prior to decision.
17
26. The law declared by the Supreme Court in KIHOTO
HOLLOHAN’s case (2 supra) and followed by a Division Bench of
our High Court in ERRABELLI DAYAKAR RAO v. TALASANI
SRINIVAS YADAV 6 is binding on this Court. There is no ratio laid
down in KEISHAM MEGHACHANDRA SINGH’s case (1 supra).
The Supreme Court merely exercised power under Article 142 of the
Constitution of India. The judgment in ERRABELLI DAYAKAR
RAO’s case (6 supra) holds the field so far as this Court is
concerned and time limit cannot be fixed. The Full Bench of the
Supreme Court in KEISHAM MEGHACHANDRA SINGH’s case
(1 supra) could not have interpreted the Larger Bench decisions in
KIHOTO HOLLOHAN’s case (2 supra) and RAJENDRA SINGH
RANA’s case (4 supra).
Submissions of Mr. Ravi Shankar Jandhyala, learned senior
counsel appearing for Mr. Thoom Srinivas, learned counsel
for the respondent No.5 in WP.No.18553 of 2024:
27. It had been the consistent view of the Supreme Court and
various High Courts not to interfere in pre-decisional matters arising
under X Schedule of the Constitution of India. The Speaker
exercises three powers, namely, (i) Presiding Officer of the House;
(ii) Judicial powers and (iii) Administrative powers. The proceedings
under X Schedule of the Constitution of India are being conducted
in accordance with the rules of the Assembly and they cannot be
6
2015 SCC OnLine Hyd 418
18
interfered with under Article 226 of the Constitution of India.
RAJENDRA SINGH RANA’s case (4 supra) (dealing with split of a
Legislature Party); GIRISH CHODANAR v. SPEAKER, GOA
STATE LEGISLATIVE ASSEMBLY 7 (dealing with Merger);
P. VETRIVEL v. P. DHANABAL 8 and JAYANT PATIL v. THE
SPEAKER MAHARASHTRA STATE LEGISLATIVE ASSEMBLY
[WP(Civil).No.1077/2023 dated 17.1.2023] (dealing with Party
Symbol) and SPEAKER, HARYANA VIDHAN SABHA V. KULDEEP
BISHNOI 9 (dealing with Merger) are not applicable to the facts of
the instant case. In ERRABELLI DAYAKAR RAO’s case (6 supra),
this Court in categorical terms held that directions cannot be given
to a Speaker at a pre-decisional stage.
28. Judicial propriety and discipline has to be maintained by this
Court by following decision in KIHOTO HOLLOHAN’s case
(2 supra). Even in the recent decision of the Supreme Court in
SUBASH DESAI’s case (3 supra), at the first instance,
the Supreme Court did not issue any direction to the Speaker to
decide disqualification petition. Thus, the law laid down in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) is not a
binding precedent and it was rendered in peculiar circumstances.
7
2023 SCC OnLine Bom 979
8
2018 SCC OnLine Mad 2056
9
(2015) 12 SCC 381
19
Reply Submissions of Mr. C. Aryama Sundaram, learned
senior counsel:
29. The Speaker wears two hats viz. one as Master of the House
presiding over the proceedings of the Assembly and another
exercising power as a Tribunal. The power exercised by the Speaker
as Master of the House cannot be interfered with. However,
the power exercised as tribunal is subject to judicial review. It is not
the case of the petitioner that ratio laid down in KIHOTO
HOLLOHAN’s case (2 supra) case has been diluted in RAJENDRA
SINGH RANA’s case (4 supra). In KIHOTO HOLLOHAN’s case
(2 supra), a Larger Bench of the Supreme Court has given
illustrations as to when Court can interfere with the decision of a
Speaker. It has been held in KIHOTO HOLLOHAN’s case (2 supra)
case that failure to exercise Constitutional mandate by the Speaker
is subject to judicial review.
30. If the contention of the respondent-State and learned
Advocate General is accepted then it will lead to a dangerous trend,
as the authority, which acts against the spirit and mandate of the
Constitution of India, can never take a decision and take shelter by
virtue of observations of KIHOTO HOLLOHAN’s case (2 supra)
regarding Quia Timet action. The decision of the house is not in
question before this Court. It is the indecision and inaction of the
Speaker that is in question. The disqualification of an MLA is an
20
action independent of the House and thus, there is no transgression
by this Court and violation of theory of separation of powers.
The speaker does not enjoy the immunity from judicial review in
the realm of disqualification merely because he is a persona
designata. It is settled law that under X Schedule the Speaker is
acting as a Tribunal.
31. Para 110 of KIHOTO HOLLOHAN’s case (2 supra) cannot be
read to contend in no circumstances, the indecision of the Speaker
can be subjected to legal action. It is the Constitutional mandate
that the Speaker should take a decision within a reasonable time.
The grievance of the petitioner, being that the Speaker has not even
initiated the process of disqualification, is subject to judicial review.
This Court need not strain itself by interpreting the judgments of
the Supreme Court in KIHOTO HOLLOHAN’s case (2 supra) and
RAJENDRA SINGH RANA’s case (4 supra), as in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra), the three Judges of
the Supreme Court, considered the above two judgments and held
that the Speaker can be directed to decide disqualification petition
within a time frame and the issue is no more res integra.
The judgments in RAJENDRA SINGH RANA’s case (4 supra) and
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) is not under
Article 142 of the Constitution of India and it is law laid down by the
Supreme Court under Article 141 of the Constitution of India and
21
binding on this Court. The subsequent Five Judges Bench judgment
of the Supreme Court in SUBASH DESAI’s case (3 supra) also
approved the view taken by the Three Judges Bench in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra). There is no conflict
between KIHOTO HOLLOHAN’s case (2 supra) on one side and
RAJENDRA SINGH RANA’s case (4 supra) and KEISHAM
MEGHACHANDRA SINGH’s case (1 supra), on the other side, as
canvassed by the respondents. Assuming there is conflict, the
decision in KEISHAM MEGHACHANDRA SINGH’s case (1 supra)
will hold the field and would be the law of the land, as earlier two
decisions have been thoroughly discussed and analysed.
32. Learned senior counsel submitted that it would be absurd on
the part of the respondents to ask this Court to dismiss the writ
petition on the ground of it being premature. The writ petition was
filed in April and even in August not even an inch has moved in the
disqualification petition and this Court, exercising jurisdiction under
Article 226 of the Constitution of India, which is a special power,
has to take into account the subsequent facts and events in order
to avoid multiplicity of proceedings. It is necessary for this Court to
direct the Speaker to decide the disqualification petition within a
fixed time period so as to curb horse trading, as otherwise it would
perpetuate fraud on the electorate. The inaction of the Speaker
runs contrary to the Rule of Law and if this Court does not interfere,
22
it will lead to an authoritarian rule and undermine the democratic
process.
33. Learned Advocate General and other learned senior counsel
relied upon the following decisions in support of his contentions:
KEISHAM MEGHACHANDRA SINGH’s case (1 supra);
KIHOTO HOLLOHAN’s case (2 supra); S.A. SAMPATH KUMAR’s
case (5 supra), ERRABELLI DAYAKAR RAO’s case (6 supra);
GOVINDANAIK G. KALAGHATIGI v. WEST PATENT PRESS CO.
LTD. 10; CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY
v. STATE OF MAHARASHTRA 11; OFFICIAL LIQUIDATOR v.
DAYANAND 12; MINERAL AREA DEVELOPMENT AUTHORITY v.
STEEL AUTHORITY OF INDIA 13; STATE OF PUNJAB v. RAFIQ
MASIH 14; HOSHYAR SINGH CHAMBYAL v. HON’BLE SPEAKER,
HP LEGISLATIVE ASSEMBLY 15 and HOSHYAR SINGH
CHAMBYAL v. HON’BLE SPEAKER, HP LEGISLATIVE
ASSEMBLY 16.
34. In KIHOTO HOLLOHAN’s case (2 supra), the Supreme Court
held as under:
10
1979 SCC OnLine KAR 56
11
(2005) 2 SCC 673
12
(2008) 10 SCC 1
13
(2011) 4 SCC 450
14
(2014) 8 SCC 883
15
2024 SCC OnLine HP 1679 (DB)
16
2024 SCC OnLine HP 2479
23“109. In the light of the decisions referred to above and the
nature of function that is exercised by the
Speaker/Chairman under paragraph 6, the scope of judicial
review under Articles 136, 226 and 227 of the Constitution
in respect of an order passed by the Speaker/Chairman
under paragraph 6 would be confined to jurisdictional errors
only viz., infirmities based on violation of constitutional
mandate, mala fides, non-compliance with rules of natural
justice and perversity.
110. In view of the limited scope of judicial review that is
available on account of the finality clause in paragraph 6
and also having regard to the constitutional intendment and
the status of the repository of the adjudicatory power i.e.
Speaker/Chairman, judicial review cannot be available at a
stage prior to the making of a decision by the
Speaker/Chairman and a quia timet action would not be
permissible. Nor would interference be permissible at an
interlocutory stage of the proceedings. Exception will,
however, have to be made in respect of cases where
disqualification or suspension is imposed during the
pendency of the proceedings and such disqualification or
suspension is likely to have grave, immediate and
irreversible repercussions and consequence.
111. In the result, we hold on contentions (E) and (F):
…
However, having regard to the Constitutional Schedule in
the Tenth Schedule, judicial review should not cover any
stage prior to the making of a decision by the
Speakers/Chairman. Having regard to the constitutional
intendment and the status of the repository of the
adjudicatory power, no quia timet actions are permissible,
the only exception for any interlocutory interference being
cases of interlocutory disqualifications or suspensions which
24may have grave, immediate and irreversible repercussions
and consequence.”
In ERRABELLI DAYAKAR RAO’s case (6 supra),
the erstwhile High Court of Hyderabad held as under:
“1. The question of law that falls for our consideration is
whether the High Court, in exercise of its powers under
Article 226 of the Constitution of India, can issue mandatory
direction to the Speaker of a State Legislative Assembly to
dispose of a disqualification petition within a time frame?.
…
8. On the other hand, Sri. K. Rama Krishna Reddy, learned
Advocate General for the State of Telangana, as an Amicus
Curiae, invited our attention to the judgment of the
Constitution Bench of the Supreme Court in Kihoto
Hollohan (supra) and submitted that the writ petitions are
not maintainable and are liable to be dismissed in the light
of the law laid down by the Supreme Court in the said
judgment. He submitted that in this judgment the Supreme
Court held that the judicial review is available only against
the orders passed by a Speaker and not prior to the making
of a decision by the Speaker. He also invited our attention to
Article 212 of the Constitution and submitted that validity of
any proceedings in the Legislature of a State cannot be
called in question on the ground of any alleged procedural
irregularity, based on Defection Rules or otherwise. He
submitted that about 10 disqualification petitions have been
filed and are pending before the Speaker and that recently
he has granted time to the respondent-members of the
Legislative Assembly, against whom the disqualification
petitions are filed, for filing their counters. He, therefore,
submitted that it is not correct to state that the Speaker is
not taking any steps to consider and decide the
disqualification petitions. He submitted that scope of a
25judicial review is very limited in terms of the judgment
in Kihoto Hollohan (supra) by the Constitution Bench …
…
19. From the observations made by M.N. Venkatachaliah, J,
as he then was, speaking for himself, K. Jayachandra Reddy
and S.C. Agarwal, J.J, the judicial review should not cover
any stage prior to making of a decision by the
Speaker/Chairman. The Speaker while exercising powers
and discharging functions under the Tenth Schedule acts as
Tribunal adjudicating rights and obligations under the Tenth
Schedule and their decisions in that capacity are amenable
to judicial review. Thus, having regard to the constitutional
intendment and the status of the repository of the
adjudicatory power, no quia-timet actions are permissible at
any stage prior to the making of a decision by the Speaker.
It is also pertinent to note that in any case, scope of judicial
review under Articles 226 and 227 of the Constitution in
respect of an order passed by the Speaker/Chairman under
paragraph 6 would be confined to jurisdictional errors only
viz., infirmities based on violation of constitutional mandate,
mala fides, non-compliance of rules of natural justice and
perversity.
…
21. … In any case, the Defection Rules cannot be regarded
as constitutional mandate and any violation of the
Disqualification Rules would not afford a ground for judicial
review.”
In S.A. SAMPATH KUMAR’s case (5 supra), the Supreme
Court held as under:
“1. The present petition raises a question of great
constitutional importance, namely, whether a Speaker of a
Legislative Assembly, acting under powers granted to him
26under the Tenth Schedule of the Constitution of India (as a
quasi-judicial authority) can be ordered by a High Court,
exercising its writ jurisdiction under Article 226 of the
Constitution of India, to decide a particular disqualification
petition pending before him within a certain time.
2. Mr Mukul Rohatgi, learned Attorney General for India, has
submitted before us that the answer to this question has
clearly been laid down in para 110 of the Constitution Bench
judgment in Kihoto Hollohan v. Zachillhu [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2) SCC 651]. According
to him, this judgment concludes the case before us, as has
been held by the judgment in appeal in the present case. On
the other hand, the learned counsel appearing on behalf of
the appellant has submitted before us that the focus in the
decision in Kihoto Hollohan [Kihoto Hollohan v. Zachillhu,
1992 Supp (2) SCC 651] was somewhat different. He
submitted that the constitutional validity of the Tenth
Schedule of the Constitution of India as a whole was what
was before the Court, and the Court, therefore, was not
faced with the particular question that arises in this case. He
also sought to argue that a quia timet action is an action in
the nature of stay of proceedings before the Speaker, and
the direction that the Speaker should decide a particular
dispute within a certain time does not fall within such an
action …
…
5. We, therefore, place the papers before the Hon’ble Chief
Justice of India to constitute an appropriate Bench to decide
this question as early as possible.”
In HOSHYAR SINGH CHAMBYAL’s case (15 supra),
the High Court of Himachal Pradesh held as under:
27
“51. In the instant case, the elections to the Legislative
Assembly had been held in November, 2022 and results
were declared in December,2022. The term of the Assembly
is till November,2027. So the situation in the instant case is
not the same as in Rajinder Singh Rana (1 Supra).
…
53. Unlike in the above cases, in the instant case, as of
now, the Speaker had not taken any decision on the
resignations submitted on 22.3.2024 by the petitioners.”
In HOSHYAR SINGH CHAMBYAL’s case (16 supra),
the High Court of Himachal Pradesh held as under:
“57. Consequently, in view of the detailed discussion made
herein above as well as law taken into consideration, this
Court is persuaded to agree with view taken by the Hon’ble
Chief Justice that no timeframe can be fixed by the
Constitutional Court for the Speaker to decide the issue of
resignation tendered by members of the Legislative
Assembly/Vidhan Sabha, if any, brought before him.
Reference is answered accordingly.”
35. The observations of the Supreme Court in KIHOTO
HOLLOHAN’s case (2 supra), more particularly, in para 109, on the
scope of judicial review under Articles 136 and 226/227 of the
Constitution of India in a matter of disqualification has been
considered in RAJENDRA SINGH RANA’s case (4 supra).
36. In RAJENDRA SINGH RANA’s case (4 supra), a Legislator
of BSP Legislative Party filed a petition before the Speaker in terms
of Article 191 read with X Schedule of the Constitution of India,
28
to disqualify 13 BSP MLA’s, who proclaimed support to Mulayam
Singh Yadav, before Governor, in terms of Para 2 of the X Schedule
of the Constitution of India, on the basis of that they have
voluntarily given membership of BSP, the original party. A request
was made by 37 MLA’s on behalf of 40 MLA’s requested the Speaker
to recognize the split in the BSP that they constitute 1/3rd strength
of BSP Legislature Party consisting of 109 legislators. The Speaker
took up the application of split on the same day and overruled
objection of BSP Legislators and accepted split to BSP. However,
the Speaker did not decide the disqualification petition. The order of
the Speaker dated 06.09.2003 accepting that the split in BSP
comprises 1/3rd the members of the legislature party and that they
have merged with Samajwadi Party, was challenged before the High
Court in WP.No.5085 of 2003. During the pendency of the writ
petition, the Speaker passed order rejecting the disqualification
petition.
37. Taking note of the above background facts, the Supreme
Court held that the Speaker failed to exercise jurisdiction conferred
on him by Para 6 of X Schedule of the Constitution of India and as
such, failure to exercise jurisdiction cannot be held to be covered by
shield of Para 6 of X Schedule of the Constitution of India. It was
further held that the Speaker specifically refrained from deciding
the petition seeking disqualification of 13 MLA’s and clearly there
29
was error which attracted the jurisdiction of the High Court to
exercise power of judicial review. However, taking note of the fact
that the term of the Assembly was coming to an end, the Supreme
Court held that remand of proceeding to the Speaker would mean
the proceeding itself may become infructuous. The writ petition filed
before the High Court was allowed by the Supreme Court with
declaration that the 13 MLAs, who met the Governor on
27.08.2003, stand disqualified from the Uttar Pradesh Legislative
Assembly.
38. The decision in RAJENDRA SINGH RANA’s case (4 supra)
was relied upon by the Supreme Court in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) wherein direction was
given to the Speaker of Manipur Legislative Assembly to decide the
disqualification petition pending before him within a period of four
weeks from the date of intimation of the judgment. In KEISHAM
MEGHACHANDRA SINGH’s case (1 supra), the issue before the
Supreme Court was regarding inaction on the thirteen applications
for disqualification of respondent No.3 therein filed before the
Speaker of Manipur Assembly between April and July 2017.
Writ Petition was filed before the Manipur High Court to direct the
Speaker to decide the disqualification petitions within reasonable
time. The High Court of Manipur declined to pass orders on the
premise that the issue Whether High Court can direct a Speaker to
30
decide disqualification petition within a time frame is pending
before a Bench of Five Judges of the Supreme Court.
The High Court of Manipur directed the matter to be listed so as to
await the outcome of cases pending before the Supreme Court.
39. In KEISHAM MEGHACHANDRA SINGH’s case (1 supra),
the Supreme Court held as under:
“10. … it is clear from a reading of para 110 of Kihoto
Hollohan v. Zachillhu [Kihoto Hollohan v. Zachillhu, 1992
Supp (2) SCC 651] , that all that was interdicted by that
judgment was the grant of interlocutory stays which would
prevent a Speaker from making a decision and not the other
way around. For this purpose, he read to us Black’s Law
Dictionary on the meaning of a quia timet action, and
argued that the judgment read as a whole would make it
clear that if the constitutional objective of checking
defections is to be achieved, judicial review in aid of such
goal can obviously not be said to be interdicted. He also
strongly relied upon the observations of this Court
in Rajendra Singh Rana v. Swami Prasad Maurya [Rajendra
Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270]
and exhorted us to uphold the reasoning contained in the
impugned judgment [Mohd. Fajur Rahim v. Speaker,
Manipur Legislative Assembly, 2019 SCC OnLine Mani 127]
and then issue a writ of quo warranto against Respondent 3.
…
13. We would have acceded to Mrs Madhavi Divan’s plea
that in view [S.A. Sampath Kumar v. Kale Yadaiah, (2021)
16 SCC 528] of this order of a Division Bench of this Court,
the hearing of this case ought to be deferred until the
pronouncement by a five-Judge Bench of this Court on the
issues raised in the present petition. However, we find that
31this very issue was addressed by a five-Judge Bench
judgment in Rajendra Singh Rana [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270] and has
already been answered. Unfortunately, the decision
contained in the aforesaid judgment was not brought to the
notice of the Division Bench which referred [S.A. Sampath
Kumar v. Kale Yadaiah, (2021) 16 SCC 528] the matter to
five Hon’ble Judges of this Court, though Rajendra Singh
Rana [Rajendra Singh Rana v. Swami Prasad Maurya,
(2007) 4 SCC 270] was sought to be distinguished
in Kuldeep Bishnoi [Speaker, Haryana Vidhan
Sabha v. Kuldeep Bishnoi, (2015) 12 SCC 381] , which was
brought to the notice of the Division Bench of this Court.
…
24. It is clear from a reading of the judgment in Rajendra
Singh Rana [Rajendra Singh Rana v. Swami Prasad Maurya,
(2007) 4 SCC 270] and, in particular, the underlined
portions [italicised herein] of paras 40 and 41 that the very
question referred by the two-Judge Bench in S.A. Sampath
Kumar [S.A. Sampath Kumar v. Kale Yadaiah, (2021) 16
SCC 528] has clearly been answered stating that a failure to
exercise jurisdiction vested in a Speaker cannot be covered
by the shield contained in Para 6 of the Tenth Schedule, and
that when a Speaker refrains from deciding a petition within
a reasonable time, there was clearly an error which
attracted jurisdiction of the High Court in exercise of the
power of judicial review.
…
33. … In the present case, the life of the Legislative
Assembly comes to an end only in March 2022 unlike
in Rajendra Singh Rana [Rajendra Singh Rana v. Swami
Prasad Maurya, (2007) 4 SCC 270] where, but for this Court
deciding the disqualification petition in effect, no relief could
have been given to the petitioner in that case as the life of
32
the Legislative Assembly was about to come to an end. The
only relief that can be given in these appeals is that the
Speaker of the Manipur Legislative Assembly be directed to
decide the disqualification petitions pending before him
within a period of four weeks from the date on which this
judgment is intimated to him …”
40. In Para 30 of KEISHAM MEGHACHANDRA SINGH’s case
(1 supra) the Supreme Court by referring to Paras 110 and 111 of
KIHOTO HOLLOHAN’s case (2 supra), observed that “…What is
reasonable period will depend on facts of each case, but absent
exceptional circumstances for which there is a 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 X Schedule of the
Constitution is to be adhered to…”
41. SUBHASH DESAI’s case (3 supra) arose out of a writ
petition filed before the Supreme Court under Article 32 of the
Constitution of India challenging the notice of disqualification issued
by the Speaker of Maharashtra Legislative Assembly and the
communication issued by the Governor to the Chief Minister. In the
original order passed by the Supreme Court, it was held that
ordinarily the Court cannot adjudicate petition for disqualification
under the X Schedule of the Constitution of India, in the first
33
instance and there are no extraordinary circumstances that warrant
exercise of jurisdiction to decide disqualification petition and the
Speaker must decide the disqualification petition within a
reasonable time. Subsequently, by order dated 17.10.2023,
the Supreme Court granted opportunity to the Speaker of the
Maharashtra Assembly to prescribe a time schedule for disposal of
disqualification application in view of the assurance given to the
Court by the Solicitor General of India. Later, order dated
30.10.2023 was passed by the Supreme Court taking note of the
fact that the Speaker was given several opportunities as a Tribunal
to conclude the proceedings under the X Schedule of the
Constitution of India expeditiously and ultimately, directions were
given to conclude the disqualification proceedings and dispose of
Group-A petitions on or before 31.12.2023 and Group-B petitions
on or before 31.01.2024.
Binding Precedent – Articles 141 and 142 of the Constitution
of India – Law of the Land:
42. It is the contention of the learned Advocate General and
other learned senior counsel for the respondents that the
judgments in KEISHAM MEGHACHANDRA SINGH’s case
(1 supra) and RAJENDRA SINGH RANA’s case (4 supra) are
rendered under peculiar circumstances. Learned Advocate General
vehemently submitted that the judgment in KEISHAM
34MEGHACHANDRA SINGH’s case (1 supra) has to be treated as
one passed by the Supreme Court invoking power under Article 142
of the Constitution of India. Learned Advocate General further
submitted that the judgment in KEISHAM MEGHACHANDRA
SINGH’s case (1 supra) was rendered by a Bench of Three Judges
and is contrary to the law laid down by the Supreme Court in
KIHOTO HOLLOHAN’s case (2 supra). In RAJENDRA SINGH
RANA’s case (4 supra), which was decided on peculiar facts,
the Five Judges Bench of the Supreme Court did not differ with the
law laid down earlier by a Coordinate bench in KIHOTO
HOLLOHAN’s case (2 supra) on the subject of ‘Quia Timet’ action.
In RAJENDRA SINGH RANA’s case (4 supra), the law laid down in
KIHOTO HOLLOHAN’s case (2 supra) could not have been diluted.
The observations made in RAJENDRA SINGH RANA’s case
(4 supra) are read out of context by the three Judges Bench in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) and ruled
that direction can be issued to the Speaker to decide disqualification
petition within a time frame.
43. Learned Advocate General submitted that in the light of the
Five Judges Bench judgment in KIHOTO HOLLOHAN’s case
(2 supra), the judgment in KEISHAM MEGHACHANDRA SINGH’s
case (1 supra) is not a good law and not binding on this Court.
It is also argued that KIHOTO HOLLOHAN’s case (2 supra) and
35
RAJENDRA SINGH RANA’s case (4 supra) have been followed by
a Division Bench of this Court in ERRABELLI DAYAKAR RAO’s
case (6 supra) and also in HOSHYAR SINGH CHAMBYAL’s case
(16 supra) wherein it was held that direction cannot be issued to
Speaker to decide the disqualification petition in a time bound
manner.
44. Mr. Ravi Shankar Jandhyala, learned senior counsel, relied on
the judgments of the Supreme court in MAYAWATI v.
MARKANDEYA CHAND 17 and BALCHANDRA L. JARKIHOLI v.
B.S. YEDDYURAPPA 18 and judgment of a learned Single Judge of
this Court in M.S. PRABHAKARA RAO v. K.R. AMOS 19. Learned
senior counsel submitted that as laid down in the aforesaid cases,
the power of judicial review can be exercised only when a decision
is taken by the Speaker. In M.S. PRABHAKARA RAO’s case
(19 supra), this Court clearly held that judicial review at a
pre-decisional stage is not permissible as held in KIHOTO
HOLLOHAN’s case (2 supra). He also relied on the observations
made in Para 28 of the decision of the Supreme Court in
NATIONAL INSURANCE COMPANY LIMITED v. PRANAY
SETHI 20 and submitted that the decision in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) is per incuriam being
17
(1998) 7 SCC 517
18
(2011) 7 SCC 1
19
2015 (2) ALT 510
20
(2017) 16 SCC 680
36
contrary to the law laid down by the Supreme Court in KIHOTO
HOLLOHAN’s case (2 supra).
45. Mr. C. Aryama Sundaram, learned senior counsel, submitted
that the argument of the learned Advocate General and other
learned senior counsel appearing for the respondents does not hold
water. It is not for this Court to interpret the judgment of the
Supreme Court and read something from each judgment, which is
not available in text and context. Assuming that the judgment in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) is not a
correct law, still this Court is bound by the ratio laid down in the
said case.
46. Learned senior counsel appearing for both the parties have
painstakingly referred to several observations made in KIHOTO
HOLLOHAN’s case (2 supra), RAJENDRA SINGH RANA’s case
(3 supra) and SUBHASH DESAI’s case (9 supra) in support of their
respective case. It is interesting to note that Paras 109 and 110 of
KIHOTO HOLLOHAN’s case (2 supra) are relied upon by both the
learned Advocate General and Mr. C. Aryama Sundaram by arguing
that the same supports their case. While it is the contention of the
learned Advocate General that judicial review is not permissible in
‘Quia Timet’ action and at pre-decisional stage, as per Paras 109
and 110 of KIHOTO HOLLOHAN’s case (2 supra); Mr. Aryama
37
Sundaram submitted that the said paragraphs, in fact, support the
case of the petitioners; the Supreme Court has given illustration as
to when the Court can interfere with the decisions of the Speaker,
such observations of the Supreme Court cannot be read to contend
that indecision and inaction of the Speaker has to be treated as
‘Quia Timet’ at all given times; the Supreme Court clearly lays down
that the writ petition is maintainable when the Speaker acts against
Constitutional mandate.
47. It is necessary to point out that the judgment cannot read as
a Statute. The Courts interpret statutes but not judgments.
The ratio of a judgment has to be understood by reading it as a
whole and not by dissecting it into bits and pieces. It is not that
every paragraph and observation becomes a ratio and binding
precedent. In NATURAL RESOURCES ALLOCATION, IN RE,
SPECIAL REFERENCE No.1 of 2021 21 case, it was held as under:
“69. Article 141 of the Constitution lays down that the
“law declared” by the Supreme Court is binding upon all the
courts within the territory of India. The “law declared” has
to be construed as a principle of law that emanates from a
judgment, or an interpretation of a law or judgment by the
Supreme Court, upon which, the case is decided. (See Fida
Hussain v. Moradabad Development Authority [(2011) 12
SCC 615 : (2012) 2 SCC (Civ) 762] .) Hence, it flows from
the above that the “law declared” is the principle culled out
on the reading of a judgment as a whole in light of the21
(2012) 10 SCC 1
38questions raised, upon which the case is decided. [Also
see Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC
213] and CIT v. Sun Engg. Works (P) Ltd. [(1992) 4 SCC
363]] In other words, the “law declared” in a judgment,
which is binding upon courts, is the ratio decidendi of the
judgment. It is the essence of a decision and the principle
upon which the case is decided which has to be ascertained
in relation to the subject-matter of the decision.
70. Each case entails a different set of facts and a decision
is a precedent on its own facts; not everything said by a
Judge while giving a judgment can be ascribed precedential
value. The essence of a decision that binds the parties to the
case is the principle upon which the case is decided and for
this reason, it is important to analyse a decision and cull out
from it the ratio decidendi …
71. … A decision is an authority for what it actually decides.
What is of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the
various observations made in the judgment.”
72. Recently, in Union of India v. Amrit Lal
Manchanda [(2004) 3 SCC 75 : 2004 SCC (Cri) 662] this
Court has observed as follows: (SCC p. 83, para 15)
“15. … Observations of courts are neither to be read as
Euclid’s theorems nor as provisions of the statute and that
too taken out of their context. These observations must be
read in the context in which they appear to have been
stated. Judgments of courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark into
lengthy discussions but the discussion is meant to explain
and not to define. Judges interpret statutes, they do not
interpret judgments. They interpret words of statutes; their
words are not to be interpreted as statutes.”
39
73. It is also important to read a judgment as a whole
keeping in mind that it is not an abstract academic discourse
with universal applicability, but heavily grounded in the facts
and circumstances of the case. Every part of a judgment is
intricately linked to others constituting a larger whole and
thus, must be read keeping the logical thread intact. In this
regard, in Islamic Academy of Education v. State of
Karnataka [(2003) 6 SCC 697] , this Court made the
following observations: (SCC p. 719, para 2)
“2. … The ratio decidendi of a judgment has to be found
out only on reading the entire judgment. In fact, the ratio of
the judgment is what is set out in the judgment itself. The
answer to the question would necessarily have to be read in
the context of what is set out in the judgment and not in
isolation. In case of any doubt as regards any observations,
reasons and principles, the other part of the judgment has
to be looked into. By reading a line here and there from the
judgment, one cannot find out the entire ratio decidendi of
the judgment.”
48. On the binding nature of subsequent decision of the Supreme
Court, at paras 16 and 17 of the judgment in GREGORY PATRAO
v. MANGALORE REFINERY AND PETROCHEMICALS 22, it was
held as under:
“16. This Court thereafter had considered the decisions
in U.P. Awas Evam Vikas Parishad [U.P. Awas Evam Vikas
Parishad v. Gyan Devi, (1995) 2 SCC 326] and Himalayan
Tiles & Marble [Himalayan Tiles & Marble (P) Ltd. v. Francis
Victor Coutinho, (1980) 3 SCC 223] and has distinguished
the same and has observed and held that the decisions
in U.P. Awas Evam Vikas Parishad [U.P. Awas Evam Vikas22
(2022) 10 SCC 461
40Parishad v. Gyan Devi, (1995) 2 SCC 326] and Himalayan
Tiles & Marble [Himalayan Tiles & Marble (P) Ltd. v. Francis
Victor Coutinho, (1980) 3 SCC 223] shall not be appliable
with respect to the acquisition under the KIAD Act, 1966.
Once, this Court in the subsequent decision in Peerappa
Hanmantha Harijan [Peerappa Hanmantha Harijan v. State
of Karnataka, (2015) 10 SCC 469 : (2016) 1 SCC (Civ) 155]
dealt with and considered the earlier decisions in U.P. Awas
EvamVikas Parishad [U.P. Awas Evam Vikas
Parishad v. Gyan Devi, (1995) 2 SCC 326] and Himalayan
Tiles & Marble [Himalayan Tiles & Marble (P) Ltd. v. Francis
Victor Coutinho, (1980) 3 SCC 223] and distinguished the
same and observed and held with respect to the acquisition
under the KIAD Act, 1966 that the allottee company can
neither be said to be a “person interested” nor entitled for
hearing before determination of compensation, the said ratio
was binding upon the High Court. Thus, it was not open for
the High Court to not follow the binding decision of this
Court in Peerappa Hanmantha Harijan [Peerappa
Hanmantha Harijan v. State of Karnataka, (2015) 10 SCC
469 : (2016) 1 SCC (Civ) 155] by observing that in the
subsequent decision in Peerappa Hanmantha
Harijan [Peerappa Hanmantha Harijan v. State of
Karnataka, (2015) 10 SCC 469 : (2016) 1 SCC (Civ) 155] ,
the earlier decisions in U.P. Awas Evam Vikas Parishad [U.P.
Awas Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326]
and Himalayan Tiles & Marble [Himalayan Tiles & Marble (P)
Ltd. v. Francis Victor Coutinho, (1980) 3 SCC 223] have not
been considered. The High Court has not noted that as such
while deciding the case of Peerappa Hanmantha
Harijan [Peerappa Hanmantha Harijan v. State of
Karnataka, (2015) 10 SCC 469 : (2016) 1 SCC (Civ) 155],
this Court did consider the earlier decisions in U.P. Awas
Evam Vikas Parishad [U.P. Awas Evam Vikas
41
Parishad v. Gyan Devi, (1995) 2 SCC 326] and Himalayan
Tiles & Marble [Himalayan Tiles & Marble (P) Ltd. v. Francis
Victor Coutinho, (1980) 3 SCC 223] and had clearly
distinguished the same. Not following the binding
precedents of this Court by the High Court is contrary to
Article 141 of the Constitution of India. Being a subsequent
decision, in which the earlier decisions were considered and
distinguished by this Court, the subsequent decision of this
Court was binding upon the High Court and not the earlier
decisions, which were distinguished by this Court.
17. Under the circumstances, the High Court has committed
a grave/serious error in passing the impugned judgment
and order by relying upon the judgments of this Court
in U.P. Awas Evam Vikas Parishad [U.P. Awas Evam Vikas
Parishad v. Gyan Devi, (1995) 2 SCC 326] and Himalayan
Tiles & Marble [Himalayan Tiles & Marble (P) Ltd. v. Francis
Victor Coutinho, (1980) 3 SCC 223] and by not following the
subsequent decision of this Court in Peerappa Hanmantha
Harijan [Peerappa Hanmantha Harijan v. State of
Karnataka, (2015) 10 SCC 469 : (2016) 1 SCC (Civ) 155].”
49. The decision in KIHOTO HOLLOHAN’s case (2 supra) was
considered by a three Judge Bench in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) and it was clearly held
that the law laid with regard to indecision/inaction of the Speaker is
subject to judicial review and direction can be issued to decide
disqualification petition within a time frame. The decision in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra) was
subsequent in point of time after decision of a Division Bench of this
Court in ERRABELLI DAYAKAR RAO’s case (6 supra).
42
In HOSHYAR SINGH CHAMBYAL’s case (15 and 16 supra), the
issue was not regarding disqualification of MLA. The relief sought in
the said case was to direct the Speaker to take a decision regarding
letter submitted by the petitioners therein in a time bound manner.
Due to difference of opinion between the Chief Justice and another
learned Judge, the matter was referred to a third Judge, who
concurred with the view of the Chief Justice. It was held that there
was no relief sought by the petitioners to direct the Speaker to
decide the resignations in a time bound manner. Hence, the
principle of law laid down in ERRABELLI DAYAKAR RAO’s case
(6 supra) and HOSHYAR SINGH CHAMBYAL’s case (16 supra) are
of no help to the respondents.
50. Learned Advocate General heavily relied on a Full Bench
decision of the Karnataka High Court in GOVINDANAIK G.
KALAGHATIGI’s case (10 supra) and submitted that when there is
a conflict between two decisions of the Supreme Court, the decision
of a Larger Bench has to be followed. By referring to Para 10 of the
CENTRAL BOARD OF DAWOODI BOHRA COMMUNITY’s case
(11 supra) and Paras 90, 91 and 92 in OFFICIAL LIQUIDATOR’s
(12 supra), learned Advocate General submitted that judicial
discipline is a sine qua non for effective and efficient functioning of
the judicial system. Whenever a Court has a doubt regarding
applicability of a ratio involved in a Division Bench or Larger Bench
43
decision of the Supreme Court, judicial discipline inheres a Single
Judge or Bench with lesser coram to refer the matter to a Full
Bench or Larger Bench as the case may be. Learned Advocate
General also placed reliance on RAFIQ MASIH’s case (14 supra)
and contended that the decision of the Supreme Court in
RAJENDRA SINGH RANA’s case (4 supra) was passed in exercise
of power under Article 142 of the Constitution of India and there
was no direction issued to decide the disqualification petition.
As such, there is no ratio laid down in RAJENDRA SINGH RANA’s
case (4 supra). Despite the same, the Full Bench in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) held that Five Judges
Bench in RAJENDRA SINGH RANA’s case (4 supra) already
addressed the issue regarding indecision of the Speaker, which is
factually incorrect, thus, the decision in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) is not a binding
precedent.
51. Several judgments, cited in the course of hearing and after
hearing, have not been referred to by this Court as it would
unnecessarily burden this judgment.
52. It is necessary to point out that the facts in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) are identical to the
facts in the instant case. In the aforesaid decision, the issue
44
whether direction can be issued to the Speaker for deciding a
disqualification petition was considered and it was held that inaction
of the Speaker to decide the petitions within a reasonable time will
be subject to judicial review.
53. If the contention of the learned Advocate General and other
learned senior counsel appearing for the respondents that this
Court can never give directions to the Speaker to decide
disqualification within a time frame, is to be accepted, then the
question that would arise is “how long the inaction or indecision of
the Speaker to be tolerated by this Court”.
54. In the course of discussion, this Court posed the aforesaid
question to the learned Advocate General and it was submitted by
the learned Advocate General that it would be difficult to answer
such hypothetical question and the Court should never venture into
hypothetical situation. Learned Advocate General submitted that
the disqualification petition will be decided within a reasonable time
and the petitioners, who have rushed to this Court within ten days
of fling of disqualification petition, need not have any apprehension
about that.
55. The complaint of the petitioners is that Danam Nagender,
who was elected as MLA on BRS Party ticket, without resigning,
contested as MP on Congress Party ticket. It is openly proclaimed
45
by him that 2/3rd of the elected BRS MLA’s would follow his suit.
Any delay in disposal of disqualification petition would be a fraud on
democracy. It may be noted that several judgments relied on by the
learned Advocate General and other learned senior counsel, do not
deal with a situation where MLA of one party contested as an MP on
another party ticket.
56. According to the Mr. Gandra Mohan Rao, learned senior
counsel, every single day is a premium for respondent No.5,
who, being elected as a BRS party candidate, now is speaking in
Assembly as an associate of the Congress Legislature Party and
acting against the interest of BRS Legislature party. By taking cue
from Para 45 of RAJENDRA SINGH RANA’s case (4 supra),
Mr. Gandra Mohan Rao, learned senior counsel, submitted that
continuance of Mr. Danam Nagender even for a single day would be
a blot on the democracy. If this Court does not interfere in this
matter, it will send a wrong message to the Society. People, who
have voted for a particular candidate nominated by a recognized
political party, will lose faith in democracy. A sitting MLA of one
party contesting as MP of another party can never be
countenanced. If such things are permitted, then it would amount
to recognizing Horse Trading and opposed to all canons of justice
and democratic principles and ultimately, the will of people/voters.
46
57. Every case is peculiar to its facts. Learned Advocate General
and learned senior counsel appearing for the respondents
contended that the judgments relied upon by the learned senior
counsel for the petitioners are rendered in peculiar circumstances
and cannot be treated as a binding precedent. It is also contended
that in RAJENDRA SINGH RANA’s case (3 supra), the term of
Assembly was coming to an end and in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra), the disqualification
petitions were not considered for about two years. In the opinion of
this Court, it is not the left over term, which is relevant, to find out
special or peculiar circumstances. Indulgence of the Court would
depend upon the nature of grievance and not by the remainder of
the term of the Legislative Assembly. The Court should always
endeavour to understand the seriousness of the issue and special
circumstances from the view point of the aggrieved party.
58. Learned Advocate General contended that judicial discipline
warrants that decision of a Larger Bench in KIHOTO HOLLOHAN’s
case (2 supra) has to be followed as against the judgment in
KEISHAM MEGHACHANDRA SINGH’s case (1 supra), which is
rendered by a three Judge bench.
59. The disqualification petition was directly in issue in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) and it has been held
that directions can be issued to the Speaker to decide the
47
disqualification petition within a time frame. This Court cannot differ
with the law laid down in KEISHAM MEGHACHANDRA SINGH’s
case (1 supra), as law of Supreme Court is binding on this Court
under Article 141 of the Constitution of India.
Can subsequent events/developments be taken into consideration:
60. Another point raised by the learned Advocate General that
the relief that can be granted to the petitioners should be with
reference to the date of filing of writ petition and cause of action
and merely because time has passed, in due course, the same
cannot be a circumstance to grant relief. In Para 17 of RAM
CHANDRA PRASAD SINGH v. SHARAD YADAV 23, it was held as
under:
“17. In a writ petition under Article 226 subsequent events
can be taken note of for varied purposes. We are reminded
of the weighty observation of V.R. Krishna Iyer, J.
in Pasupuleti Venkateswarlu v. Motor & General
Traders [Pasupuleti Venkateswarlu v. Motor & General
Traders, (1975) 1 SCC 770] , where following was observed
: (SCC pp. 772-73, para 4)
“4. … It is basic to our processual jurisprudence that the
right to relief must be judged to exist as on the date a suitor
institutes the legal proceeding. Equally clear is the principle
that procedure is the handmaid and not the mistress of the
judicial process. If a fact, arising after the lis has come to
court and has a fundamental impact on the right to relief or
the manner of moulding it, is brought diligently to the notice
of the tribunal, it cannot blink at it or be blind to events23
(2021) 13 SCC 794
48which stultify or render inept the decretal remedy. Equity
justifies bending the rules of procedure, where no specific
provision or fair play is violated, with a view to promote
substantial justice — subject, of course, to the absence of
other disentitling factors or just circumstances. Nor can we
contemplate any limitation on this power to take note of
updated facts to confine it to the trial court. If the litigation
pends, the power exists, absent other special circumstances
repelling resort to that course in law or justice. Rulings on
this point are legion, even as situations for applications of
this equitable rule are myriad. We affirm the proposition
that for making the right or remedy claimed by the party
just and meaningful as also legally and factually in accord
with the current realities, the Court can, and in many cases
must, take cautious cognizance of events and developments
subsequent to the institution of the proceeding provided the
rules of fairness to both sides are scrupulously obeyed.”
61. Be it noted that Writ jurisdiction under Article 226 of the
Constitution of India is very wide. It would not be in the interest of
justice to dismiss the writ petition on the ground of hasty action
and on technical grounds, even when the situation otherwise
warrants interference of this Court. Every Constitutional authority is
bound by the principles of Democracy, Constitutional ethics and
philosophy. To contend that indecision/inaction is not subject to
judicial review, one has to ask for how long. It cannot be said that
the Speaker can wait for five years, until the completion of the term
of the house and still Court should lay off its hands. Such approach
would be against Constitutional Mandate and antithetical to
49
democratic principles. If the judgment in KIHOTO HOLLOHAN’s
case (2 supra) is construed in the manner canvassed by the learned
Advocate General and other learned senior counsel, then there may
arise a situation where the party would not have any remedy if the
Speaker declines to take any decision in the disqualification
petition.
62. Much emphasis is laid by the learned Advocate General on
order of the Supreme Court in S.A. SAMPATH KUMAR’s case
(5 supra), which arises out of a Division Bench judgment of this
Court in S.A. SAMPATH KUMAR v. KALE YADAIAH [WA.No.158
of 2015 and WP.No.7217 and 7679 of 2015 dated 28.09.2015].
It is contended that Division Bench of the Supreme Court in
S.A. SAMPATH KUMAR’s case (5 supra) decided to refer the
matter to Larger Bench of Five Judges and thus, the three Judges
Bench in KEISHAM MEGHACHANDRA SINGH’s case (1 supra)
case could not have passed orders without awaiting for decision of
Larger Bench.
63. It is contended by the learned Advocate General that several
disqualification petitions moved during the TRS Regime were not
disposed of by then Speaker and they relied on KIHOTO
HOLLOHAN’s case (2 supra) case based on which Division Bench of
this Court held in ERRABELLI DAYAKAR RAO’s case (6 supra)
50
that writ is not maintainable at pre-decisional case. Mr. P. Sri
Raghuram, learned senior counsel, contended that High Court in its
writ jurisdiction cannot issue a Mandamus to the Speaker.
Both these contentions do not hold force in the light of authoritative
pronouncement of the Supreme Court in KEISHAM
MEGHACHANDRA SINGH’s case (1 supra) case.
64. WP.Nos.9472 and 11098 of 2024 were filed in the month of
April and WP.No.18553 of 2024 was filed in the month of July,
the matter was heard at length and arguments were concluded on
10.08.2024. However, till now there is no information as to the
status of disqualification petitions. In the above backdrop,
this Court opines that the petitioners have made out special
circumstances and are entitled for relief in these writ petitions.
65. Having due regard to the Constitutional status and dignity of
the Office of the Speaker, this Court finds it appropriate to direct
the respondent No.3-Secretary, Telangana Legislative Assembly,
to forthwith place the disqualification petitions before the
respondent No.2-Speaker, Telangana Legislative Assembly for fixing
a schedule of hearing (filing of pleadings, documents, personal
hearing etc.) within a period of four (4) weeks from today.
The schedule, so fixed, shall be communicated to the Registrar
(Judicial), High Court for the State of Telangana. If nothing is heard
51
within four (4) weeks, it is made clear that the matter will be
reopened suo motu and appropriate orders will be passed.
The writ petitions are disposed of accordingly. Miscellaneous
petition pending, if any, shall stand closed. There shall be no order
as to costs.
____________________
B. VIJAYSEN REDDY, J
September 9, 2024
Note:
1. Issue CC today
2. LR Copy to be marked
(B/o) DSK