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CWP No.2900 of 2013 -1- in the HIGH COURT for the STATES of PUNJAB and HARYANA at CHANDIGARH CWP No.2900 of 2013 Date Of

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CWP No.2900 of 2013 -1- in the HIGH COURT for the STATES of PUNJAB and HARYANA at CHANDIGARH CWP No.2900 of 2013 Date Of CWP No.2900 of 2013 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.2900 of 2013 Date of Decision.09.10.2014 Kuldeep Bishnoi s/o Late Ch. Bhajan Lal ......Petitioner Versus Speaker, Haryana Vidhan Sabha, Chandigarh and others ......Respondents Present: Mr. S.P. Jain, Senior Advocate with Mr. Dheeraj Jain, Advocate for the petitioner. Mr. Sanjeev Sharma, Senior Advocate with Mr. Shekhar Verma, Advocate and Ms. Bhavna Joshi, Advocate for respondent Nos.1 and 8. Mr. M.L. Sarin, Senior Advocate with Ms. Ankita Sambyal, Advocate and Mr. Nitin Sarin, Advocate for respondent No.4. Mr. R.S. Cheema, Senior Advocate with Mr. Pawan Girdhar, Advocate for respondent No.2. Mr. Rajiv Atma Ram, Senior Advocate with Mr. Abhishek Arora, Advocate for respondent No.3. Mr. Harbhagwan Singh, Senior Advocate and Mr. Arun Walia, Senior Advocate with Mr. Dinesh Sharma, Advocate for respondent Nos.5 and 7. Mr. Tarun Veer Vashist, Advocate for respondent No.6. Mr. Namit Kumar, Advocate for respondent No.9. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes CWP No.2900 of 2013 -2- 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J. I. The subject of challenge 1. The writ petition calls to question the correctness of the decision of the Speaker of the Haryana Vidhan Sabha rendered on 13.01.2013 rejecting an application moved by the petitioner Kuldeep Bishnoi under Paragraph 6 of Tenth Schedule to the Constitution on the issue of disqualification of 5 of the members of the Haryana Janhit Congress (BL) (for brief “HJC (BL)). This came on a petition filed by the petitioner following an order issued by the Speaker on 09.11.2009 signed by 4 MLAs of HJC (BL) namely Satpal Sangwan, Vinod Bhayana, Narendra Singh and Zile Ram Chochra respectively respondent Nos.3 to 6. The communication signed by them was to the effect that a decision had been taken to merge the HJC (BL) with Indian National Congress (for brief “INC”) party in terms of the provisions of Paragraph 4 of the Tenth Schedule of the Constitution. The letter requested the acceptance of the merger of HJC (BL) with INC and to recognize the applicant- legislators as members of the INC in the Haryana Vidhan Sabha. The minutes of the meeting of the HJC (BL) on 09.11.2009 accompanying the letter was to the effect that at a meeting of the Legislators of the HJC (BL) elected to the 12th Haryana Legislative Assembly held on 09.11.2009 to consider and decide to merge the original HJC (BL) with the INC, the requisite legislature party members have agreed to merge HJC (BL) with INC. The Speaker in his order dated 09.11.2009 stated cryptically that he had perused the relevant provisions of Constitution of India and he was of the considered opinion that the application deserved CWP No.2900 of 2013 -3- acceptance in terms of the provisions of the Constitution. He also recorded the identity of the applicants as well as decision as being borne out of ‘their free will’. Leader of the Congress Legislature Party Sh. Bhupinder Singh Hooda and President, HPCC, Sh. Phool Chand Mullana were reported to have communicated to him in writing accepting the merger. Alongside the order passed by the Speaker was also a letter of communication by the 7th respondent informing the Speaker that he was unavailable at Chandigarh and therefore, he moved a separate application informing that he had also accorded with the decision of the merger. 2. Five separate petitions were filed under Section 191 read with Tenth Schedule of the Constitution and the rules framed against respondent Nos.3 to 7 praying for the disqualification of abovesaid respondents as members of Haryana Legislative Assembly. Nine other petitions were also filed by non-Congress members seeking for similar disqualification against respondent Nos.3 to 7. The petitions which had been numbered as petitions No.1 to 14 were clubbed together and the impugned order was passed on 13.01.2013. II. A quick run-up to circumstances leading to the impugned order 3. The petitioner's applications before the Speaker under Paragraph 6 had been filed on 09.12.2009 and it would be worthwhile to recapitulate the facts in brief that led up to the passing of the impugned order. The impugned order itself came through a judicial intervention from the Supreme Court after going through the initial judicial process through directions of a Single Bench as modified by the Division Bench of CWP No.2900 of 2013 -4- this court. The Supreme Court set a definite date for disposal that would explain the previous litigative journey for this case. 4. In the first round of litigation, which the petitioner had initiated by filing CWP No.14194 of 2010, the petitioner made out a case that the Speaker was not likely to take any decision and the Speaker who had been described by name and impleaded as 2nd respondent had literally decided the whole issue finally ex parte without hearing the petitioner. Since he had already expressed the mind, the petitioner would contend that he would expect no justice from the Speaker and the subsequent conduct of the Speaker in dealing with disqualification petitions without any sense of urgency left no room to wait for any fair decision by the Speaker. A learned Single Bench of this Court passed the judgment holding that an order passed under Paragraph 4 could necessarily be subject to an adjudication under Paragraph 6 when an application had been filed and the challenge brought for the initial order passed on 09.11.2009 ought to await the decision on the application filed under Paragraph 6 of the Tenth Schedule of the Constitution. The Court also held that there was no absolute immunity given to the Speaker in the manner of how he would deal with the case particularly with reference to an act of indecision by the Speaker within a reasonable time. The Court issued directions for disposal of the disqualification petition within a period of 4 months from the date of receipt of copy of the order. In the appeals filed against the order in LPA No.366 of 2011, the Division Bench modified the directions and passed a judgment on 20.12.2011 holding that the respondents would not be deemed to be members of the INC party nor that of HJC (BL) till CWP No.2900 of 2013 -5- a final adjudication on the disqualification petitions. The Division Bench directed that they would remain as unattached members of the assembly for the purpose of attending the sessions and for no other purpose. It also observed that they shall not hold any office till the decision of the disqualification petitions and that the Speaker shall allot them separate seats in the house. The Speaker had appeared in Court and had given an undertaking that he will decide the case before 30.04.2012 and the Court recorded the undertaking. This decision rendered on 20.12.2011 was again the subject of special leave petition before the Supreme Court. The special leave petition had been at the instance of the Speaker and the respondents, who had been treated as unattached members. The decision of the Supreme Court that is reported under the caption Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi and others AIR 2013 SC 120 set aside the directions of the Division Bench as regards the direction that respondents No.3 to 7 shall be treated as unattached members. The Supreme Court observed that the High Court could not have assumed jurisdiction under its powers of review before a decision was taken by the Speaker under Paragraph 6 of the Tenth Schedule of the Constitution. The Supreme Court observed that its order amounted to a restraint against the Speaker from taking a decision under Paragraph 6 of the Tenth Schedule and hence was beyond the jurisdiction of the High Court. It held that it was only after the Speaker took his decision, the High Court would assume jurisdiction and the order disqualifying the MLAs which was in the domain of the Speaker was not legally tenable. The 5 MLAs stood, therefore, restored to their full functions as members of the Haryana Vidhan Sabha without any CWP No.2900 of 2013 -6- restrictions. While allowing the appeal, the Supreme Court, however directed the Speaker to dispose of the pending applications for disqualification within a period of three months from the communication of the order. The order has come to be passed under such circumstances. III. Effect of non-recognition of merger by Chief Election Commissioner 5. Even at the outset, I may point out that the Chief Election Commissioner, the 9th respondent, has itself not recognized the merger of the HJC (BL) with INC. It is brought out in their reply that HJC (BL) continues to be a recognized State Party in Haryana. As per the Commission's records, there has been no merger. The Commission's notification dated 18.01.2013 still retains HJC (BL) as among the list of political parties and election symbols. The 9th respondent has also brought to fact that one Sh. Nishant Ahlawat had given a letter on 25.02.2013 seeking for de-recognition of HJC (BL) but the request was rejected. The Commission has explained that registration and recognition of political parties are done under Section 29A of the Representation of People Act, 1951 and under the Election Symbols (Reservation and Allotment) Order, 1968, while the decision of the Speaker is under Sch X of the Constitution.
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