Hon'ble Dr. Vijay Laxmi,J.
Heard Shri Ved Prakash Nag, learned counsel for the petitioner.
The petitioner claims himself to be the President of the Peace Party which is a political party. He urges that the respondents no.2 and 3, who were members of his party have allegedly defected and joined another political party as a result whereof they have incurred disqualifications keeping in view the provisions of the Tenth Schedule appended to the Constitution of India. For this, a petition has been filed before the Speaker of the UP Legislative Assembly and which is pending consideration without any orders. Keeping in view the prayers made in this petition, a direction be issued to the Speaker of the Assembly for taking a decision in this regard.
The petition has been opposed by Shri Abhinav N. Trivedi, learned counsel on behalf of the State contending that such a direction would not be permissible keeping in view the provisions of Article 212 of the Constitution of India read with Rule 6 of the Tenth Schedule of the Constitution of India. Both the aforesaid provisions are extracted herein under:
"212. Courts not to inquire into proceedings of the Legislature.-(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."
Rule 6 of the 10th Schedule to the Constitution of India:
"6. Decision on questions as to disqualification on ground of defection.-(1) If any question arises as to whether a member of a House has become subject to disqualification under this schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212."
Learned counsel for the petitioner has, therefore, relied upon the decision of the Orissa High Court in the Case of Utkal Keshari Parida versus Speaker, Orissa Legislative Assembly passed in Writ Petition No. (Civil) Nos. 14868,14869,14870 and 14871 of 2012, decided on 27.09.2012 to contend that such a mandamus can be issued as the Speaker of the Legislative Assembly acts as a Tribunal while taking a decision with regard to the disqualification and hence, he is obliged to perform the duty in accordance with law. In such circumstances if the obligation is not fulfilled, a mandamus can be issued.
He has further relied on another Apex Court decision in the case of Speaker, Haryana Vidhan Sabha versus Kuldeep Bishnoi and others reported in AIR 2013 Supreme Court 120, paragraph 48 to contend that such a direction issued by the High Court has been upheld by the Apex Court in the aforesaid decision. Paragraph 48 of the same is extracted herein under:
"In our view, the High Court had no jurisdiction to pass such an order, which was in the domain of the Speaker. The High Court assumed the jurisdiction which it never had in making the interim order which had the effect of preventing the five MLAs in question from effectively functioning as Members of the Haryana Vidhan Sabha. The direction given by the learned Single Judge to the Speaker, as endorsed by the Division Bench, is, therefore, upheld to the extent that it directs the Speaker to decide the petitions for disqualification of the five MLAs within a period of four months. The said direction shall, therefore, be given effect to by Speaker. The remaining portion of the order disqualifying the five MLAs from effectively functioning as Members of the Haryana Vidhan Sabha is set aside. The said five MLAs would, therefore, be entitled to fully function as Members of the Haryana Vidhan Sabha without any restrictions, subject to the final decision that may be rendered by the Speaker in the disqualification petitions filed under paragraph 6 of the Tenth Schedule to the Constitution."
Shri Trivedi, however, informs upon instructions that the respondents no.2 and 3 have already been put to notice by the Speaker and since the principles of natural justice have to be complied with, therefore, the procedure as prescribed has to be followed. Consequently, the decision is likely to be taken within a reasonable time.
In view of the aforesaid submissions raised, the writ petition is disposed of with a liberty to the first respondent to proceed to take a decision keeping in view the observations made hereinabove within a reasonable time.
Order Date :- 9.8.2016 KR (Dr. Vijay Laxmi,J.) (Amreshwar Pratap Sahi,J.)