Gauhati High Court
Page No.# 1/23 vs Page No.# 2/23 on 27 September, 2024
Page No.# 1/23
GAHC010197832024
2024:GAU-AS:9764-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/328/2024
LIKHA SANG CHORRE AND 3 ORS
WIFE OF SHRI LIKHA TARA, RESIDENT OF DEM VILLAGE, PO DEED, PS
ZIRO, YACHULI SUB
DIVISION, LOWER SUBANSIRI DISTRICT (NOW KEYI PANYOR DISTRICT),
ARUNACHAL PRADESH
791120
2: SMTI GEM AITI
WIFE OF LATE GEM TADE
RESIDENT OF YAZALI
PO YAZALI
PS YAZALI
LOWER SUBANSIRI (NOW KEYI PANYOR) DISTRICT
ARUNACHAL PRADESH 791120
3: SMTI KHODA DIPUNG
WIFE OF KHODA TABANG
RESIDENT OF VILLAGE LINIA
PO YACHULI
PS YACHULI
LOWER SUBANSIRI (NOW KEYI PANYOR) DISTRICT
ARUNACHAL PRADESH 731120
4: NILLY LIKHA TABO
SON OF SHRI LIKHA TOGOR
RESIDENT OF VILLAGE SITO
PO YACHULI
PS YACHULI
YACHULI SUB DIVISION
LOWER SUBANSIRI (NOW KEYI PANYOR) DISTRICT
ARUNACHAL PRADESH 7911
VERSUS
Page No.# 2/23
THE DEPUTY COMMISSIONER LOWER SUBANSIRI DISTRICT AND 2 ORS
LOWER SUBANSIRI DISTRICT, ZIRO, ARUNACHAL PRADESH
2:THE STATE ELECTION COMMISISON
NIRVACHAN BHAWAN
ARUNACHAL PRADESH
ITANAGAR
3:THE STATE PRESIDENT (IN CHARGE) CUM CHAIRMAN
STATE DISCIPLINARY COMMITTEE
BHARATIYA JANATA PARTY
ITANAGAR
ARUNACHAL PRADES
For the Appellant(s) : Mr. D. Das, Senior Advocate, assisted by Mr. R.B. Phookan,
Advocate and Ms. S. Sharma, Advocate.
For the respondent(s) : Mr. A. Chandran, Additional Senior Govt. Advocate, Arunachal
Pradesh.
: Mr. D. Mozumdar, Senior Advocate, assisted by Mr. S.K. Deori,
Advocate and Ms. Somila, Advocate.
Date of Hearing : 23.09.2024.
Date of judgment : 27.09.2024
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR
JUDGMENT & ORDER (CAV)
(Vijay Bishnoi, CJ)
Heard Mr. D. Das, learned senior counsel, assisted by Mr. R.B. Phookan,
learned counsel appearing for the appellants. Also heard Mr. A. Chandran,
learned Additional Senior Government Advocate, Arunachal Pradesh, appearing
on behalf of respondents No.1 and Mr. D. Mozumdar, learned senior counsel,
assisted by Mr. S.K. Deori, learned counsel appearing for the respondent No.3.
Page No.# 3/23
2. This intra-Court appeal is preferred by the appellants assailing the
order dated 30.05.2024, passed by the learned Single Judge in WP(C)
No.211(AP)/2024, whereby the writ petition filed by the appellants has been
dismissed.
3. The appellants filed the WP(C) No.211(AP)/2024 assailing the order
dated 14.05.2024 passed by the Deputy Commissioner, Lower Subansiri District,
Ziro, whereby the appellants had been disqualified to hold the posts of Zilla
Parishad Member of Lower Subansiri District Zilla Parishad, Arunachal Pradesh.
4. The brief facts of the case are that the appellants were elected as
Members of Lower Subansiri District Zilla Parishad (hereinafter referred to as
"Zilla Parishad") from different constituencies and the same is evident from the
Certificates of Election annexed by them with the writ petition. It is to be
noticed that the appellants contested in the elections for the posts of Member of
the Zilla Parishad as candidates from a political party, namely, Bharatiya Janata
Party (BJP) and they were elected as Members of the Zilla Parishad.
5. The Government of Arunachal Pradesh, in exercise of powers
conferred under sub-Section (2) of Section 1 of the Arunachal Pradesh (Re-
organization of Districts) (Amendment) Act, 2024, has created a new district in
the name of Keyi Panyor District. The above referred district is created out of
the area of Lower Subansiri District of Arunachal Pradesh. However, the fact
remains that despite creation of Keyi Panyor District, a separate Zilla Parishad
for the said district has not been constituted as per the provisions of Section 85
of the Arunachal Pradesh Panchayat Raj Act, 1997.
Page No.# 4/23
6. Be that as it may, the appellants along with one independent Member
of the Zilla Parishad sent a letter dated 28.03.2024 to the Deputy
Commissioner-cum-Member Secretary, Keyi Panyor District, informing that they
had merged with NCP (Ajit Pawer). A similar letter was also addressed to the
District President, BJP, Keyi Panyor District, on the same day. The letter dated
28.03.2024, written by the appellants to the Deputy Commissioner, Keyi Panyor
District is reproduced hereunder:
"To
The Deputy Commissioner-cum-Member Secretary,
Keyi Panyor District,
Tergapin-Samsath, Yachuli,
Sub: Merger to NCP (Ajit Pawar) with more than 2/3rd majority.
Sir,
It is to respectfully inform and bring to your notice that we the undersigned
05 (five) ZPMs (including the present ZPC) out of total 6 (six) ZPMs of Keyi
Panyor District Zilla Parishad, do hereby merge to NCP (Ajit Pawar) with more
than 2/3rd majority.
Therefore, our merger may kindly be acknowledged.
Yours faithfully,
Sd/-
1. Smti Likha Sang Chhore, ZPC
Sd/-
2. Shri Nilly Likha Tabo, ZPM 04-Pistana.
Sd/-
3. Smti Khode Dipung, ZPM, 20-Uppar Yachuli
Page No.# 5/23
Sd/-
4. Smti Gem Aiti, ZPM, 02-Yachuli
Sd/-
5. Smti Nabam Piju, ZPM, 01-Pitapol"
7. On 29.03.2024, the State President (in-charge)-cum-Chairman, State
Disciplinary Action Committee, BJP, Arunachal Pradesh issued a Show Cause
Notice to the appellants for initiating disciplinary action against them alleging
that the appellants were indulged in anti party activities. It appears that the
appellants did not furnish their reply to the said Show Cause Notice and the said
State President (in-charge)-cum-Chairman, State Disciplinary Action Committee,
BJP, Arunachal Pradesh, expelled the appellants from BJP by issuing separate
Expulsion Letters dated 07.04.2024. The State President (in-charge)-cum-
Chairman, State Disciplinary Action Committee, BJP, Arunachal Pradesh also
intimated the factum of expulsion of the appellants from the BJP to the Member
Secretary of the Lower Subansiri Zilla Parishad vide letter dated 07.04.2024 and
requested that the appellants be disqualified immediately while treating them as
defectors under the provisions of the Arunachal Pradesh Local Authorities
(Prohibition of Defection) Act, 2003 (As amended in 2006) (hereinafter referred
to as ("Defection Act, 2003"). A similar communication was also sent to the
Secretary of the State Election Commission, Arunachal Pradesh, intimating the
factum of expulsion of the appellants along with some other Zilla Parishad
Members from BJP, vide letter dated 08.04.2024. It appears that the Member
Secretary, Lower Subansiri Zilla Parishad forwarded the intimation letter dated
07.04.2024 to the Secretary of the State Election Commission, Arunachal
Page No.# 6/23
Pradesh. The State Election Commission, on 09.04.2024 forwarded the letter
dated 08.04.2024 sent by the State President (in-charge)-cum-Chairman, State
Disciplinary Action Committee, BJP, Arunachal Pradesh, to the Deputy
Commissioner, Lower Subansiri District and other Deputy Commissioners of all
other districts.
8. Taking cognizance of the said letter dated 09.04.2024, written by the
Secretary, State Election Commission, the Deputy Commissioner, Lower
Subansiri District issued Show Cause Notice to the appellants on 10.04.2024
asking them to show cause as to why action should not be initiated against
them under Section 3, read with Section 4, 5, and 6 of the Defection Act, 2003.
The Show Cause Notice dated 10.04.2024 is reproduced hereunder:
"No. PR/DEFECTION-01/2024 Dated Ziro the 10/4/2024
SHOW CAUSE NOTICE
To,
1. Smti Likha Sang Chhore, ZPM, Deed
2. Shri Nilly Likha Tabo, ZPM, Pistana
3. Smti Khoda Dipung, ZPM, Upper Yachuli
4. Smti Gem Aiti, ZPM, Yazali
Whereas vide letter No. Nil dated 28/3/2024 addressed to Deputy
Commissioner you had intimated that 4 (four) Bharatiya Janata Party ZPMs and
One Independent ZPM (total-5) out of 6 ZPMs of Keyi Panyour district do hereby
merge to NCP (Ajit Pawar) with more than 2/3rd majority.
And whereas the State President in charge cum Chairman, State
Disciplinary Action Committee, BJP, Arunachal Pradesh, vide letter No.
SDAC/BJP/AP/21/24 dtd. 7/4/2024 had intimated regarding your expulsion
from Bharatiya Janata Party and prayed for disqualification thereof under
relevant laws.
In view of the above facts and circumstances you are hereby directed
to Show Cause as to why action should not be initiated against you under
Section 3 read with Sections 4, 5 and 6 of the Arunachal Pradesh Local
Page No.# 7/23
Authorities (Prohibition of Defection) Act, 2003.
In this regard, you are hereby required to be present in person or
accompanied by an advocate if required on 16/4/2024 at 11 a.m. in the office
chamber of Deputy Commissioner, Ziro, failing which the proceedings shall be
treated ex-parte.
Given under my hand and Seal.
Sd/-
Deputy Commissioner
Keyi Panyor & L/Subansiri District"
9. In response to the said Show Cause Notice, the appellants wrote a
letter to the Deputy Commissioner requesting him to furnish copy of the
complaint, if any, made against them for disqualification. Simultaneously, on
16.04.2024, the appellants sent another communication to the District
President, BJP, Keyi Panyor District, wherein it is mentioned that they had
resigned from the primary membership of BJP on 28.03.2024, however, they
decided to withdraw their resignation and they were rescinding, recalling and
cancelling the said resignation letter. Vide another letter dated 16.04.2024,
addressed to the District President, BJP, Keyi Panyour District, the appellants
requested the District President to accept their rejoining in the party.
10. The State President (in-charge)-cum-Chairman, State Disciplinary
Action Committee, BJP, Arunachal Pradesh, wrote a letter to the Deputy
Commissioner, Lower Subansiri District and reiterated the demand of
disqualification of the appellants stating that the expulsion of the appellants
from the BJP is still in force.
11. Vide a letter dated 26.04.2024, addressed to the Deputy Commissioner,
Keyi Panyour District, Ziro, the appellants replied to the Show Cause Notice
Page No.# 8/23
dated 10.04.2024. The relevant extract of the reply to the Show Cause Notice is
reproduced hereunder:
"4. That, we beg to submit that on perusal of the certified copy of the
complaints, it is found that Bharatiya Janata Party, Arunachal Pradesh has
served Show Cause Notice on 29.03.2024, expulsion order was passed on
07.04.2024 and on the same day, complaint was lodged to the Member
Secretary, Zilla Parishad, Lower Subansiri District. In this regard, we reiterate
that no any show cause notice and expulsion order has been served upon us till
date. Everything was done in hasty manners without giving us an opportunity
of being heard and to reply their show cause notice. The ground for their
complaint is solely relied on our merger application dated 28.03.2024, but party
has not disclosed whether the power and function of Zilla Parishad
Constituency for Lower Subansiri & Keyi Panyor District has been separated or
not? We have not received any proper/written instruction to redress this issue
till date from the party or from the Government of Arunachal Pradesh. However,
owing to none clarity on separation of power Zilla Parishad Constituency in
respect of Lower Subansiri District and Keyi Panyor District, as a resultant we
have already withdrawn the merger application dated 28.03.2024, submitted to
your good office.
5. That, we beg to inform you that NCP (Ajit Pawar) has not accepted our
merger letter dated 28.03.2024 addressed to your good office. The merger
application was submitted under misconception regarding the notification of
newly created district "Keyi Panyor". Also, the merger was under the
impression that creation of new district would naturally entail new PRI
connoting 2/3rd majority in such predicament. Since our merger has not been
accepted by the NCP (Ajit Pawar) and no formal joining was completed. Also,
undersigned has made an ethical decision to uphold the sanctity of the appeal
made by young and dynamic Hon'ble Chief Minster, Shri Pema Khandu Ji on
04.04.2024 to all the misguided PRIs to return to the party on or before
17.04.2024 before 1700 hours. Accordingly, the undersigned 04 ZPMs has
already recalled and withdrawn the merger application dated 28.03.2024
submitted to your good office vide dated 16.04.2024 and also withdrawn the
resignation from primary membership of BJP and same has been sent through
mail and registered posts to your good office. Also, we have re-joined the BJP on
16.04.2024 and same has been acknowledged to the party office in Keyi
Panyor District, but die to absence of President and other party workers, we
could not obtain proper receipts of our re-joining in the party."
In the said reply to the Show Cause Notice, the appellants had requested
for recalling and cancelling the Show Cause Notice dated 10.04.2024 on the
Page No.# 9/23
ground that they had withdrawn their merger application dated 28.03.2024.
12. The Deputy Commissioner, Lower Subansiri District, after taking into
consideration the reply to the Show Cause Notice and after hearing the counsel
for the appellants as well as the counsel for the State President (in-charge)-
cum-Chairman, State Disciplinary Action Committee, BJP, Arunachal Pradesh,
disqualified the appellants from holding the posts of Zilla Parishad Member by
invoking the provisions of the Defection Act, 2003, vide order dated 14.05.2024.
The relevant portion of the order dated 14.05.2024 is reproduced hereunder:
"Findings
It is neither denied nor refuted that the 4 ZP members voluntarily
tried to merge with NCP (Ajit Pawar) under the misconception that the
bifurcation of the district of Lower Subansiri and Keyi Panyor districts, the Zilla
Parishad also stands bifurcated and that they form more than 2/3 rd of the
elected member of Zilla Parsishad for Keyi Panyor. It is pertinent to mention
here that the Zilla Parishad of undivided Lower Subansiri district has 20
members out of which 14 members belong to Ziro-I block (Lower Subansiri) and
6 belong to Ziro-II block (now Keyi Panyor).
The matter regarding bifurcation of Zilla Parishad of undivided Lower
Subansiri district was referred to State Electin Commission who vide WP
message dated 10/04/2024 replied that the Zilla Parishad has been not yet
constituted in respect of Keyi Panyor district.
That subsequent to the merger attempts made by the 4 ZP members
vide their letter dated 28/03/2024, the BJP expelled the said members vide
their expulsion order dated 07/04/2024 and that the request of the 4 ZPMs to
rejoin the party by withdrawing the resignation has not been considered by the
Disciplinary Action Committee, BJP, Arunachal Pradesh.
On the question regarding whether the disqualification matter can be
instituted and orders be issued while the Modal Code of Conduct (MCC) being in
force, the matter was referred to Chief Election Officer (CEO) and after obtaining
due clarification this order is being pronounced.
ORDER
In view of all material facts as stated above and the relevant
provisions of the Arunachal Pradesh Local Authorities (Prohibition of Defection)
Act, 2003, I am of the considered opinion that the actions of the Zilla Parishad
Page No.# 10/23
members, namely, 1. Smti Likha Sang Choore, 2. Smti Gem Aiti, 3. Smti Khoda
Dipung, 4. Shri Nilly Likha Tabo attract the provisions of Section 3 of Arunachal
Pradesh Local Authorities (Prohibition of Defection) Act, 2003 and as per the
provisions of Section 6(2) of Arunachal Pradesh Local Authorities (Prohibition of
Defection) Amendment Act, 2006 it is hereby decided that the above mentioned
Zilla Parishad members stand disqualified.
Given under my hand and seal.”
13. Assailing the order dated 14.05.2024 passed by the Deputy
Commissioner, Lower Subansiri District, the appellants preferred the writ
petition, as already indicated above, which was dismissed by the learned Single
Judge vide the impugned judgment dated 30.05.2024. Hence this intra-Court
appeal.
14. Mr. D. Das, learned senior counsel appearing for the appellants has
argued that the learned Single Judge has grossly erred in dismissing the writ
petition vide the impugned order.
It is contended that the learned Single Judge has failed to appreciate that
the Deputy Commissioner initiated the disqualification proceeding against the
appellant on the ground of their expulsion from the BJP as well as non-
consideration of their request for withdrawal of their resignation from the BJP
and non-acceptance of their request to rejoin the party. It is contended that the
learned Single Judge on its own added new grounds to uphold the impugned
order of the Deputy Commissioner by observing that appellants’ withdrawal of
their resignation and their request to rejoin the party was an afterthought and
the same could not have undone the cause of action that had accrued the
initiation of the disqualification proceedings.
15. It is further argued that the learned Single Judge as well as the Deputy
Page No.# 11/23
Commissioner failed to appreciate that though the appellants had expressed
their desire to merge with another political party, however, as a matter of fact
that merger did not take place and the appellant subsequently withdrew the
proposed merger. It is further contended that though the appellants had also
resigned from the primary membership of the BJP but the said resignations
were never accepted and were subsequently withdrawn before passing of the
impugned order by the Deputy Commissioner. It is emphasised that when the
merger of the appellants with another political party had not materialised and
when their resignations have not been accepted and withdrawn too, it cannot
be presumed that the appellants had voluntarily given up their primary
membership of such political party to which they belong.
16. It is also argued that the events that took place, after the appellants
had expressed their intention to merge with another political party and their
submission of resignation from the said political party, are relevant events which
are to be taken into consideration, because such events lead to the conclusion
that the appellants had not voluntarily given up their membership of the political
party to which they belong. However, the Deputy Commissioner as well as the
learned Single Judge have not appreciated the said facts and have illegally
passed the impugned orders.
17. Learned senior counsel for the appellants has further invited our
attention towards Show Cause Notice dated 10.04.2024 issued by the Deputy
Commissioner and has argued that the said Show Cause Notice is based on the
fact that the appellants were expelled by the Bharatiya Janata Party. However,
the expulsion of the appellants from the political party to which they belong
Page No.# 12/23
does not constitute a valid ground for disqualification within the meaning of
Section 2(1)(a) of the Act of 2003 until and unless it is established that the
appellants had voluntarily given up their membership of the political party to
which they belong.
18. Mr. Das has further argued that the learned Single Judge has failed to
appreciate that the view expressed by the Hon’ble Supreme Court in G.
Viswanathan -Vs- Hon’ble Speaker Tamil Nadu Legislative Assembly,
Madras & Anr., reported in (1996) 2 SCC 353 is put on hold by the Hon’ble
Supreme Court by referring it to a larger Bench and as such, on the ground of
expulsion from party, no member can be disqualified.
19. Learned senior counsel has argued that the merger of the appellants
with another political party has not materialised and their resignations from the
primary membership of the BJP were also not accepted and these resignations
were subsequently withdrawn by them before passing of the impugned order by
the Deputy Commissioner and, in such circumstances, the action of the Deputy
Commissioner of disqualifying them for holding the posts of Zilla Parishad
Member is illegal and is liable to be interfered with.
20. Learned counsel for the appellants has therefore prayed that the
impugned orders passed by the learned Single Judge as well as the Deputy
Commissioner, Lower Subansiri District are liable to be set aside and the writ
petition filed by the appellants deserves to be allowed.
21. Per contra, Mr. D. Mozumdar, learned senior counsel appearing for the
Page No.# 13/23
respondent No.3 has vehemently opposed the writ appeal and has argued that
there is no illegality in the impugned order dated 30.05.2024 passed by the
learned Single Judge as well as the order dated 14.05.2024, passed by the
Deputy Commissioner, Lower Subansiri District. It is argued that the moment
the appellants had informed the Member Secretary of the Zilla Parishad
regarding their merger with NCP (Ajit Pawar), and the moment they resigned
from the primary membership of the BJP on 28.03.2024, the provision of
Section 3(1)(a) of the Defection Act, 2003 came into operation and all other
subsequent events were liable to be ignored.
22. It is contended that by informing the Member Secretary of the Zilla
Parishad vide letter dated 28.03.2024 that the appellants had merged with
another political party, and with submission of their resignation letter to the
District President of the BJP, the appellants had voluntarily given up the
membership of the BJP and, in such circumstances, the Deputy Commissioner
has not committed any illegality in disqualifying the appellants to hold the posts
of Zilla Parishad Member by invoking the provision of Section 3(1)(a) of the
Defection Act of 2003.
23. Learned senior counsel for the respondent No.3 has placed reliance on
the decision of the Hon’ble Supreme Court rendered in the cases of Ravi S.
Naik -Vs- Union of India & Ors. , reported in 1994 Supp (2) SCC 641 and
Rajendra Singh Rana & Ors. -Vs- Swami Prasad Maurya & Ors. , reported
in (2007) 4 SCC 270.
24. Lastly, Mr. Mozumdar has prayed that the appellants have failed to
make out a case for interference, therefore, this writ appeal is liable to be
dismissed.
Page No.# 14/23
25. Heard the learned counsel appearing for the parties.
26. The facts of the present case, which are not in dispute, are:
(i) That the appellants were elected as Members of Zilla Parishad from
different constituencies of Lower Subansiri Zilla Parishad as candidates from the
BJP.
(ii) The Government of Arunachal Pradesh has constituted a new district,
namely, Keyi Panyor District, w.e.f. 01.03.2024 curving out the area from Lower
Subansiri District but no separate Zilla Parishad has been constituted for Keyi
Panyor District as per Section 85 of the Arunachal Pradesh Panchayat Raj Act,
1997.
(iii) The appellants informed the Deputy Commissioner, Keyi Panyor
District as well as the District President of BJP, Keyi Panyor District that they had
merged with NCP (Ajit Pawar).
(iv) The appellants had also resigned from the primary membership of
the BJP by writing a letter to the District President of the BJP, Keyi Panyor
District, on 29.03.2024.
(v) The appellants were expelled from the BJP on 07.04.2024.
(vi) The President (in-charge)-cum-Chairman, State Disciplinary Action
Committee, BJP, Arunachal Pradesh intimated to the Member Secretary, Lower
Subansiri Zilla Parishad regarding expulsion of the appellants from the BJP with
the request to disqualify them under the provisions of the Defection Act, 2003.
(vii) The President (in-charge)-cum-Chairman, State Disciplinary Action
Committee, BJP, Arunachal Pradesh also intimated the State Election
Commission, Arunachal Pradesh vide its letter dated 08.04.2024 regarding
Page No.# 15/23expulsion of the appellants from the BJP with the request to disqualify them.
(viii) The State Election Commission, Arunachal Pradesh, forwarded the
intimation received by it from the President (in-charge)-cum-Chairman, State
Disciplinary Action Committee, BJP, Arunachal Pradesh, to the Deputy
Commissioner, Lower Subansiri District and the Deputy Commissioners of all
other districts vide its communication dated 09.04.2024.
(ix) The Deputy Commissioner, Lower Subansiri District issued Show
Cause Notice to the appellants on 10.04.2024.
(x) The appellants, vide letter dated 16.04.2024, requested the Deputy
Commissioner, Lower Subansiri District, to supply copy of the complaint(s), if
any, made against them for their disqualification. Simultaneously, the appellants
had also written a letter to the District President, BJP, Keyi Panyor District
regarding withdrawal of their resignation from the primary membership of BJP
with the request to accept their rejoining the party.
(xi) On 23.04.2024, President (in-charge)-cum-Chairman, State
Disciplinary Action Committee, BJP, Arunachal Pradesh, informed the Deputy
Commissioner, Lower Subansiri District that the expulsion of the BJP is still in
force with further request to disqualify them.
(xii) On 26.04.2024, the appellants replied to the Show Cause Notice
dated 14.05.2024.
(xiii) The impugned order dated 14.05.2024 has been passed by the
Deputy Commissioner, Lower Subansiri District.
27. Having gone through the Show Cause Notice dated 10.04.2024 and the
impugned order dated 14.05.2024, we are of the view that the Deputy
Page No.# 16/23
Commissioner has not issued the Show Cause Notice solely on the ground that
the appellants have been expelled from that party to which they belong. He has
taken into consideration the letter dated 28.03.2024, written by the appellants
to the Member Secretary, Zilla Parishad, whereby the appellants have informed
about their merger with NCP (Ajit Pawar). Though the Commissioner has also
noted the factum of expulsion of appellants from the BJP but it was not the only
factor which influenced its decision.
28. The further ground, raised by the learned senior counsel for the
appellants regarding the pending reference of the case of G. Viswanathan
(supra) to the larger Bench, no more comes to their rescue because the same
has already been dismissed by the Hon’ble Supreme Court vide order dated
08.08.2024 by treating it as infructuous.
29. Now the question that comes up for consideration is: whether the
appellants had voluntarily given up their membership from the BJP?
30. Section 3 of the Defection Act of 2003, which is relevant for the
purpose of this controversy, is quoted hereunder:
“3.(1) Subject to the provisions of Section-4, 5 and 6 a member, belonging to
any political party, shall be disqualified for being such member :
(a) If he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in, or intentionally remains absent from
any meeting of the Zilla Parishad or Anchal Samiti or Gram Panchayat
contrary to any direction issued by the political party to which he belongs
or by any person or authority authorized by it in this behalf without
obtaining the prior permission of such party, person or authority and such
voting, abstention or absence has not been condoned by such political
party, person or authority within fifteen days from the date of voting of
such abstention or absence:
Page No.# 17/23
Explanation:- For the purpose of this sub-section a person elected as a
member, shall be deemed to belong to the political party, if any, by which he
was set up as a candidate for election as such member;
(2) A person elected as a member, otherwise than as a candidate set up by a
political party, shall be disqualified for being a member if he joins any political
party after such election.”
Clause (a) of sub-Section (1) of Section 3 provides that if any member
has voluntarily given up his membership from the political party to which he/she
belongs, he/she shall be disqualified.
31. As noted above, the appellants had informed the Deputy
Commissioner, Keyi Panyor District vide letter dated 28.03.2024 that they had
merged with another political party, i.e. NCP (Ajit Pawar). Simultaneously, the
appellants had also resigned from the BJP on 28.03.2024, which is evident from
their letter dated 16.04.2024 written to the District President, BJP, whereby they
had recalled their resignation letter dated 28.03.2024.
32. In reply to the Show Cause Notice, the appellants have tried to explain
as to why they had decided to merge with the NCP (Ajit Power). It is stated by
them that they were under the impression that with the creation of new District
Keyi Panyor, a separate Zilla Parishad for the same district had also been
constituted. It is further explained that they were under an impression that in
the newly created Zilla Parishad for Keyi Panyor District, they constitute 2/3rd
majority of the members of BJP and as such, without inviting the consequences
of defection they could merge with other political party.
Page No.# 18/23
33. From the above facts, the only conclusion which can be arrived at is
that the appellants had voluntarily given up their membership from the BJP on
28.03.2024. It is immaterial whether their merger with NCP (Ajit Pawar) has
been materialized, or their resignation has been accepted, or not. The factum of
the appellants’ expulsion from the BJP is also not relevant for the purpose of
deciding the issue regarding their disqualification from the membership of the
Zilla Parishad. It is also immaterial under what impression the appellants had
decided to merge with the NCP (Ajit Pawar) or to join the said party.
We are of the view that the moment the appellants had informed the
Deputy Commissioner, Keyi Panyor District about their merger with the NCP (Ajit
Pawar) and the moment they submitted their resignation from the BJP to the
District President, BJP, the provision of Section 3(1)(a) of the Defection Act,
2003 came into operation. Any subsequent events that took place after issuance
of Show Cause Notice by the Deputy Commissioner on 10.04.2024 are not liable
to be taken into consideration.
With their steps taken after their merger with another political party and
their resignation from the party they belong, the appellants cannot set the clock
back.
Any other interpretation or conclusion, which we have taken or arrived at,
would frustrate the object of Defection Act of 2003, which has been enacted to
curb the evil of defection.
34. So far as non-acceptance of the resignation of the appellants by the
BJP is concerned, the law is settled that the factum of voluntarily given up
membership is not dependent upon submission of resignation, or its acceptance.
The Hon’ble Supreme Court, in Ravi S. Naik -Vs- Union of India & Ors.,
Page No.# 19/23
reported in 1994 Supp (2) SCC 641, while taking into consideration the
provisions of Para 2 of Schedule X of the Constitution of India, which are pari
materia to Section 3 of the Defection Act of 2003, held as under:
“11. ……….. The words ‘voluntarily given up his membership’ are not
synonymous with “resignation” and have a wider connotation. A person may
voluntarily give up his membership of a political party even though he has not
tendered his resignation from the membership of that party. Even in the absence of
a formal resignation from membership an inference can be drawn from the conduct
of a member that he has voluntarily given up his membership of the political party
to which he belongs.”
The above-referred judgment has been followed by the Hon’ble Supreme
Court in subsequent decisions and the same still holds the field.
35. Our conclusion that the subsequent events, that took place after
issuance of the Show Cause Notice to the appellants on 10.04.2024, are not
liable to be taken into consideration, finds support from the decision of the
Hon’ble Supreme Court rendered in Ram Chandra Prasad Singh -Vs-
Sharad Yadav, reported in (2021) 13 SCC 794, wherein it is held that only
those facts and events, which took place before initiation of the disqualification
proceedings, are to be taken into consideration by the authority while deciding
the question of disqualification of an elected representative. The relevant
portion of the above-referred judgment is quoted hereunder:
“9. The disqualification is incurred by a Member of the House as soon as he
has voluntarily given up his membership of such political party. This Court
in Ravi S. Naik v. Union of India [Ravi S. Naik v. Union of India, 1994 Supp (2)
SCC 641] had the occasion to consider the expression ‘voluntarily given up his
membership’. Referring to Para 2(1)(a), this Court laid down the following : (SCC
p. 649, para 11)’11. … The said paragraph provides for disqualification of a Member of a
Page No.# 20/23House belonging to a political party ‘if he has voluntarily given up his
membership of such political party’. The words ‘voluntarily given up his
membership’ are not synonymous with ‘resignation’ and have a wider
connotation. A person may voluntarily give up his membership of a political
party even though he has not tendered his resignation from the membership
of that party. Even in the absence of a formal resignation from membership
an inference can be drawn from the conduct of a Member that he has
voluntarily given up his membership of the political party to which he
belongs.’
10. A Constitution Bench of this Court in Rajendra Singh Rana v. Swami
Prasad Maurya [Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC
270] had the occasion to consider Para 2 of the Tenth Schedule to the
Constitution. In the above case, the Constitution Bench held that decision by the
Speaker taken at a subsequent point of time cannot and does not postpone his
incurring of disqualification by the act of the legislature. In para 34, this Court
held : (SCC pp. 296-97)’34. As we see it, the act of disqualification occurs on a Member voluntarily
giving up his membership of a political party or at the point of defiance of
the whip issued to him. Therefore, the act that constitutes disqualification in
terms of Para 2 of the Tenth Schedule is the act of giving up or defiance of
the whip. The fact that a decision in that regard may be taken in the case of
voluntary giving up, by the Speaker at a subsequent point of time cannot
and does not postpone the incurring of disqualification by the act of the
legislator. … The fact that in terms of Para 6 a decision on the question has
to be taken by the Speaker or the Chairman, cannot lead to a conclusion
that the question has to be determined only with reference to the date of the
decision of the Speaker. An interpretation of that nature would leave the
disqualification to an indeterminate point of time and to the whims of the
decision-making authority. The same would defeat the very object of
enacting the law. Such an interpretation should be avoided to the extent
possible. We are, therefore, of the view that the contention that (sic it is) only
on a decision of the Speaker that the disqualification is incurred, cannot be
accepted. This would mean that what the learned Chief Justice has called
the snowballing effect, will also have to be ignored and the question will
have to be decided with reference to the date on which the membership of
the legislature party is alleged to have been voluntarily given up.’
11. A recent three-Judge Bench judgment of this Court in Shrimanth
Balasaheb Patil v. Karnataka Legislative Assembly [Shrimanth Balasaheb Patil
v. Karnataka Legislative Assembly, (2020) 2 SCC 595] had the occasion to
consider Para 2 of the Tenth Schedule to the Constitution of India. In the above
case, this Court noticed the objects and reasons of the Constitution (Fifty-second
Page No.# 21/23Amendment) Act, 1985. This Court categorically held that decision of the
Speaker that a Member is disqualified relates back to the date of the
disqualifying action complained of. In paras 92 and 93, this Court laid down the
following : (SCC pp. 632-33)’92. In addition to the above, the decision of the Speaker that a Member is
disqualified, relates back to the date of the disqualifying action complained
of. The power of the Speaker to decide upon a disqualification petition was
dealt by a Constitution Bench of this Court in Rajendra Singh Rana v. Swami
Prasad Maurya [Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4
SCC 270] . This Court, reading the provisions of Paras 2 and 6 of the Tenth
Schedule, has clearly held that the Speaker has to decide the question of
disqualification with reference to the date it was incurred. The Court held
that : (SCC pp. 296-97, para 34)’34. As we see it, the act of disqualification occurs on a Member
voluntarily giving up his membership of a political party or at the point of
defiance of the whip issued to him. Therefore, the act that constitutes
disqualification in terms of Para 2 of the Tenth Schedule is the act of
giving up or defiance of the whip. The fact that a decision in that regard
may be taken in the case of voluntary giving up, by the Speaker at a
subsequent point of time cannot and does not postpone the incurring of
disqualification by the act of the legislator. Similarly, the fact that the
party could condone the defiance of a whip within 15 days or that the
Speaker takes the decision only thereafter in those cases, cannot also
pitch the time of disqualification as anything other than the point at which
the whip is defied. Therefore in the background of the object sought to be
achieved by the Fifty-second Amendment of the Constitution and on a
true understanding of Para 2 of the Tenth Schedule, with reference to the
other paragraphs of the Tenth Schedule, the position that emerges is that
the Speaker has to decide the question of disqualification with reference
to the date on which the Member voluntarily gives up his membership or
defies the whip. It is really a decision ex post facto.’
93. As such, there is no doubt that the disqualification relates to the date
when such act of defection takes place.’(emphasis in original)
12. The decision taken by the Speaker, thus, has to be on the basis of
conduct or actions taken by Member, which may amount to voluntarily giving up
his membership. The facts and sequence of the events on the basis of which the
Hon’ble Chairman came to the conclusion that a person has incurred
disqualification under Para 2(1)(a) of the Tenth Schedule are all facts, which
Page No.# 22/23had occurred prior to adjudication by the Hon’ble Chairman. In the facts of the
present case, the Chairman of Rajya Sabha has passed the order on 4-12-2017
on the claim of the appellant praying for disqualification as noticed above. The
foundation of order of the Chairman are the facts and events, which took place
after 26-7-2017. The petition having been filed by the appellant on 2-9-2017,
the petition has to be treated to be founded on facts and events, which took
place on or before 2-9-2017.”
(emphasis supplied)
36. The Hon’ble Supreme Court in Dr. Mahachandra Prasad Singh -Vs-
Chairman, Bihar Legislative Council & Ors. , reported in (2004) 8 SCC
747, while interpreting the rules and procedure for disqualification of Bihar
Legislative Council, has held that even if the complaint for defection is
withdrawn, the Speaker is obliged to decide the question of defection to carry
out the mandate of law. The relevant paragraph of the judgment is reproduced
hereunder:-
“16. …….. There is no lis between the person moving the petition and the
member of the House who is alleged to have incurred a disqualification. It is not
an adversarial kind of litigation where he may be required to lead evidence.
Even if he withdraws the petition it will make no difference as a duty is cast
upon the Chairman or the Speaker to carry out the mandate of the constitutional
provision viz. the Tenth Schedule. The object of Rule 6 which requires that every
petition shall be signed by the petitioner and verified in the manner laid down
in CPC for the verification of pleadings, is that frivolous petitions making false
allegations may not be filed in order to cause harassment. It is not possible to
give strict interpretation to Rules 6 and 7 otherwise the very object of the
Constitution (Fifty-second Amendment) Act by which the Tenth Schedule was
added would be defeated. A defaulting legislator, who has otherwise incurred
the disqualification under Paragraph 2, would be able to get away by taking the
advantage of even a slight or insignificant error in the petition and thereby
asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The
validity of the Rules can be sustained only if they are held to be directory in
nature as otherwise, on strict interpretation, they would be rendered ultra vires.
(emphasis supplied)
37. In view of the above discussions, we are of the view that since the
appellants had voluntarily given up their primary membership of the BJP by
Page No.# 23/23
furnishing written letter to the Deputy Commissioner regarding their merger
with the NCP (Ajit Pawar) and, simultaneously, by submitting their resignation
from the BJP on 28.03.2024, the Deputy Commissioner has rightly disqualified
them form holding the posts of Zilla Parishad Member vide the impugned order
dated 14.05.2024 by invoking provisions of Section 3(1)(a) of the Defection Act
of 2003. The learned Single Judge has also rightly upheld the same.
38. Hence, we do not find any merit in this appeal and the same is,
therefore, dismissed. The interim order dated 13.06.2024 passed in I.A. (Civil)
No. 95(AP)/2024 stands vacated.
JUDGE CHIEF JUSTICE Comparing Assistant