Dr. Ram Bali Singh Chandravanshi was disqualified from Bihar Legislative Council (BLC). The disqualification became effective from February 6, 2024. He filed a writ petition against the disqualification in the Patna High Court on February 16, 2024. It was registered on February 22, 2024. The case was filed against the BLC when Devesh Chandra Thakur was the Chairman, BLC. In his order dated February 28, 2024, Justice Sandeep Kumar recorded: "It is the contention of the petitioner that the petitioner was heard on preliminary objection but the impugned order was passed considering the merits of the case and without providing any opportunity of hearing to the petitioner." On May 6, 2024, the case came for hearing before Justice Mohit Kumar Shah. He directed that notice be issued to Dr. Sunil Kumar Singh, the Respondent No.3 who was the Chief Whip (Ruling Party, Rashtriya Janata Dal), "both by ordinary process as well as by speed post for which requisites, etc. must be filed within two weeks from today, failing which the present petition shall stand rejected as against the Respondent No.3 without further reference to the Bench."
Notably, on July 1, 2024, the constitution of Benches in accordance with Rule 1 and Rule 2 of Chapter II of the Rules of High Court at Patna Election was announced. It states "Petitions under the Representation of People Act would be tried, heard and decided by the Hon’ble Judges, who has been entrusted with such petitions." Justice Nani Tagia has been allotted election matters. Prior to him Justice Harish Kumar dealt with these matters since November 22, 2023.
Later, Dr. Sunil Kumar Singh, was named as the new Opposition Party Chief Whip in the Bihar Legislative Council through a notification issued by Akhilesh Kumar Jha, Secretary of the Bihar Legislative Assembly, dated February 15, 2024. This development happened after Janata Dal (United) severed ties with Rashtriya Janta Dal (RJD) on January 28, 2024. JDU had formed the government in Bihar in alliance with the RJD, Congress and other Left parties in 2022 and was part of the Opposition's INDIA bloc.
Subsequently, the case of Dr. Ram Bali Singh Chandravanshi was listed for hearing on June 27, 2024. The order recorded that the counsel for the petitioner sought a day’s time for filing an interlocutory application, challenging the notification dated June 25, 2024 issued by the Election Commission of India. The order of Justice Shah reads: "In case the said interlocutory application is filed by tomorrow, the registry is directed to number the same and place it on record of the case tomorrow itself." The petitioner filed I.A. No. 2 of 2024 with specific reference to the notification issued by the Election Commission.
When the matter came up for hearing on July 1, 2024 before Justice Mohit Kumar Shah bench, the counsel for the petitioner sought pressed I.A. No. 2 of 2024, whereby and whereunder a prayer has been made to stay the Notification dated 25.06.2024, issued by the Election Commission of India, notifying the bye-election to be held for the purposes of filling the vacancy, which has arisen in the Legislative Council of the State of Bihar on account of disqualification of the petitioner. The counsel for the respondents pointed out that the present writ petition is required to be heard by the Division Bench of this Court, in light of the directions issued by the Supreme Court in a judgment rendered in the case of Election Commission of India vs. Bajrang Bahadur Singh & Ors., reported in (2015) 12 SCC 570, paragraph no. 67. The order of Justice Shah reproduced the relevant text as under:-“67. Such proceedings must be heard by a Bench of at least two Judges and be disposed of within a period of eight weeks from the date of initiation without fail. The Chief Justice of the High Court concerned will make an appropriate arrangement in this regard. If the above mentioned time-frame is strictly followed, the Commission would still be left with another eight weeks of time to comply with the obligations emanating from Section 151-A of the RP Act.”
The High Court's order concluded: "In view of the aforesaid, let the matter be placed before the Hon’ble the Chief Justice for issuance of appropriate directions." The division bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy heard counsel for the parties on July 3, 2024.
The division bench delivered the judgement on July 4, 2024. The writ petition had challenged the disqualification of Dr. Ram Bali Singh, a Member of the Bihar Legislative Council. It came up before the Division Bench based on a judgment of the Supreme Court in Election Commission of India vs. Bajrang Bahadur Singh; (2015) 12 SCC 570. Noticing that there is no limitation prescribed for filing a writ petition against disqualification, the Supreme Court had prescribed eight weeks as the limitation period, till a period is prescribed by the Legislature, for the purpose of filing a writ petition and a further eight weeks within which the High Court was also obliged to consider and dispose of the writ petition. The said period was prescribed since, after the disqualification order has been passed, the Election Commission was obliged to carry out a fresh election within a period of six months.
The judgment noted that the disqualification was on February 6, 2024 and the writ petition was filed on February 22.02.2024. The eight weeks time had expired on April 22, 2024. The writ petition ought to have been placed before a Division Bench which the Registry failed to do. It also recorded that the Counsel for the petitioner did not apprise the Single Judge about the requirement as stipulated in the cited decision. In fact, the same was brought to the notice of the Single Judge only on July 1, 2024, when the Single Judge directed the matter to be placed before the Chief Justice. A motion was made before the division bench of the High Court on July 2, 2024 and the matter was posted on July 3, 2024 for hearing.
The disqualification by BLC was made on the complaint made by Dr. Sunil Kumar Singh, the 3rd respondent. The 3rd respondent was served with notice, but no one appeared during the hearing. The The bench was apprised of the fact that as of there was an election scheduled and there was only one nomination filed. The election was scheduled on July 12, 2024 and the last date of withdrawal of nomination was on July 5, 2024. The bench noted that if the solitary nomination was not withdrawn, the result would have to be declared; when the time for withdrawing of nomination expires. It heard the matter in such circumstances.
The petitioner had challenged the order passed by Devesh Chandra Thakur, the Chairman, BLC. Meanwhile, Thakur has resigned after his election as MP.
S.B.K Mangalam, counsel appearing for the petitioner alleged that the Chairman, BLC violated principles of natural justice. The petitioner was issued with a notice and the petitioner had approached this Court alleging that the complaint did not satisfy the requirements under Order VI Rule 15 of the Code of Civil Procedure, since no affidavit accompanied the complaint filed by Dr Sunil Kumar Singh. The High Court had directed that the objection be raised before the Chairman and the Counsel for the Legislative Council had also assured that it would be considered. It was on the specific undertaking of the Counsel appearing for the Chairman that it would be considered, the petitioner was relegated to the Chairman. A preliminary objection was filed pointing out the procedural irregularity, which according to the Counsel required the Chairman to dismiss the complaint. However, no order was issued on the preliminary objection and final orders were passed without affording an opportunity of hearing, to refute the allegations raised. The order of disqualification recorded the arguments and without finding any of the ingredients for disqualification and without dealing with the allegations, it ordered disqualification. It is evident from the order that there was complete absence of application of mind.
The counsel for the petition relied on Shri Baru Ram v. Smt. Prasanni and Other; AIR 1959 SC 93 to contend that when a procedure has been prescribed by statute, it should be done in that manner and not otherwise. He also relied on Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Others; (2010) 13 SCC 216 to contend that if there is complete non-application of mind definitely there could be interference of orders passed by Statutory Authorities/Courts/Tribunals. The counsel also pointed out that the show-cause notice was issued by RJD, the political party to the petitioner for making some remarks against the leader of the party. But no further proceedings were taken to oust him from the party. In such circumstances, the Chairman, BLC ought to have factored in the restraint exercised by RJD, the political party which did not take any action against the petitioner for the remarks made; which is also the subject matter of the complaint made.
Ashhar Mustafa, counsel appearing for the BLC submitted that the petitioner had been given sufficient opportunity to put forth his contentions on merits with respect to the specific allegations; which he failed to do. The petitioner had been resorting to delaying tactics so as to continue to be a MLC. The complaint by RJD was filed on November 2, 2023 and notice was served on November 21, 2023. On December 1, 2023, the petitioner had sought additional time of 15 days, which was granted. On December 12, 2023, the petitioner approached the High Court with a writ petition pointing out a procedural irregularity. The writ petition was disposed off granting liberty to raise all the grounds before the Chairman of the BLC including the procedural irregularity under Rule 6. Chairman could not have first ruled on the preliminary objection and then given a further opportunity for refuting the factual allegations.
The counsel for the BLC, the respondent relied on Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar Legislative Council and Others; (2004) 8 SCC 747 and Ravi S. Naik v. Union of India; 1994 Supp (2) SCC 641 to contend that Rules 6 and 7 are only directory in nature and not mandatory, especially since, as held by the Supreme Court it cannot lead to curtailing the content and scope of substantive provisions, in the Xth Schedule of the Constitution of India. The Xth Schedule does not provide for a verification in the manner laid down in the Code of Civil Procedure and merely because of such an irregularity, the jurisdiction of the Chairman or the Speaker of the House cannot be curtailed.
The division bench also heard Siddhartha Prasad, counsel appearing for the Election Commission, who pointed out that the Election Commission, in accordance with its obligations has ensured that an election is conducted within 6 months.
The bench noted that Bihar Legislative Council (Disqualification on the Ground of Defection) Rules, 1994 by sub-rule (6) of Rule 6 provides for verification, as per the Code of Civil Procedure, 1908, which does not require an affidavit. The counsel for the petitioner had urged that there was no affidavit accompanying the complaint, as is required under Order VI Rule 15 (4) of the Code of Civil Procedure, 1973.
The bench cited the relevant portion of the Supreme Court's decision in Mahachandra Prasad Singh case which has stated so in paragraph 16. It reads: Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said rule and sub-rule (6) of the same rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is “Procedure”. Sub-rule (1) of this rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the petition. These Rules have been framed by the Chairman in exercise of power conferred by Paragraph 8 of the Tenth Schedule. The purpose and object of the Rules is to facilitate the job of the Chairman in discharging his duties and responsibilities conferred upon him by Paragraph 6, namely, for resolving any dispute as to whether a member of the House has become subject to disqualification under the Tenth Schedule. The Rules being in the domain of procedure, are intended to facilitate the holding of inquiry and not to frustrate or obstruct the same by introduction of innumerable technicalities. Being subordinate legislation, the Rules cannot make any provision which may have the effect of curtailing the content and scope of the substantive provision, namely, the Tenth Schedule. There is no provision in the Tenth Schedule to the effect that until a petition which is signed and verified in the manner laid down in CPC for verification of pleadings is made to the Chairman or the Speaker of the House, he will not get the jurisdiction to give a decision as to whether a member of the House has become subject to disqualification under the Schedule. Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under Paragraph 2, may be brought to the notice of the Chairman. 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 TenthSchedule. 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.
The bench also cited the decision in Ravi S. Naik from paragraph 18. It reads:- It was also submitted that the petitions were also not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Shri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case [1992 Supp (2) SCC 651]. Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case [1992 Supp (2) SCC 651] is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case.
The bench observed that the requirement in Rule 6 is merely procedural. "We have to find that the procedural irregularity raised as a preliminary objection before the Chairman of the Legislative Council is not sustainable."
It also observed that the Chairman specifically observed in the order that the factual statements made in the complaint were not refuted by the petitioner and the contention raised was only regarding the maintainability of the petition on the allegation of procedural irregularity. Both sides were heard by the Chairman, BLC on January 9, 2024, when the complainant was represented by an Advocate and the petitioner was present in person. The Advocate appearing for the complainant specifically stated that the hearing should be done on the merits of the case. A request was given by the petitioner seeking time, so that an Advocate could appear for him, which was objected to by the complainant on the ground of unnecessary delay being occasioned. However, the Chairman granted the petitioner time for appearance through an Advocate and the matter was posted on January 16, 2024. The order specifically records that the petitioner was informed that this would be the final opportunity for him to put forth his arguments and submit whatever documents or the evidence he had to give. Hence, there was a clear understanding, as is evident from the order, that the matter would be heard on merits and the question of procedural irregularity would also be considered, which was also directed by a Single Judge of this Court. The Chairman, in his order, specifically referred to the Supreme Court's decisions in Ravi S. Naik and Mahachandra Prasad Singh to hold that the procedural irregularity does not vitiate the complaint. Following the dictum that the procedure prescribed under Rules 6(6) and 7 to be directory and not mandatory, we fully agree with the said finding and further observe that the requirement of an affidavit was absent in Order VI Rule 15 as available in the C.P.C of 1908 which is specifically referred to and incorporated in the Rules of 1994.
The High Court's judgement observed: "We cannot, but notice that there is absolutely no contention raised against the allegations before the Chairman nor any ground raised against the decision of disqualification." It reiterated the finding in Ravi S. Naik stating ‘Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by the Court in Kihoto Hollohan case [1992 Supp (2) SCC 651] is confined to breaches of the constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity”.
The High Court's judgement records that "The allegations were made against the Leader in the Legislative Assembly, of the political party, to which the petitioner also belonged. There were also allegations of the petitioner having made public statements against the declared policies of the State Government, passed by the Legislature; when the party on whose platform the petitioner had been elected, was a part of the Government. We would not refer to the allegations as such since there is no contention raised against those nor are they even denied. However, we find that the decision taken by the Chairman regarding the scurrilous remarks publicly made against the leader of the party in the Legislative Assembly and statements made, again publicly, against the declared policy of the Government in which the political party was associated were considered in the light of the decisions in Ravi S. Naik (supra) and Kihoto Hollohan vs. Zachillhu & Ors.; 1992 Supp (2) SCC 651. It was held that though every citizen has a fundamental right to free speech and expression; when he is a Member of the legislative body in the capacity of a Member of a political party, he should comply with the discipline, constitution and rules of the party. It was found that the petitioner by his conduct has voluntarily abandoned his political party and hence he is liable to disqualification based on the Rules of 1994.
It recalled that the oft-repeated dictum in Baru Ram that whenever the statute requires a particular act to be done in a particular manner and also lays down the consequence of failure to comply with the said requirement; it would always lead to that specific consequence, on failure to comply and not otherwise, is not applicable in view of the binding precedents that the stipulation in the Rules of 1994 is only directory and not mandatory.
The judgement authored by the chief justice concluded: "We find absolutely no reason to interfere with the impugned order. We dismiss the writ petition leaving the parties to suffer their respective costs."
Notably, in view of the Supreme Court decision in M/s N. G. Projects Vs. M/s Vinod Kumar Jain Civil Appeal No. 1846/2022), the Trade & Commerce (Works Contract– Tender and Blacklisting) matters are also posted before a Bench of two judges.
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