Holding

The Speaker has no power of review under the Tenth Schedule; the High Court erred in dismissing the writ petitions on the ground of laches, and the review orders are nullities.

Summary

The case concerned three writ petitions filed in the Bombay High Court challenging orders of the Acting Speaker of the Goa Legislative Assembly that purportedly reviewed and set aside earlier disqualification orders of members under the Tenth Schedule (anti‑defection law). The High Court dismissed the petitions at the admission stage on the ground of laches. The Supreme Court held that the doctrine of laches could not be invoked to bar a class‑action writ seeking to prevent disqualified legislators from continuing to hold public office, and that the Speaker has no power of review under the Tenth Schedule; consequently the review orders were nullities. The Court set aside the High Court’s dismissals, declared the review orders void, revived the writ petitions, and directed that the disqualification orders remain in force and be heard on merits. The Court also ordered the revival of the writ petition filed by Ravi S. Naik and directed speedy disposal of the pending petitions.

Issues considered

The applicability of the doctrine of laches to writ petitions challenging the validity of the Speaker's review orders under the Tenth Schedule.
Whether the Speaker, acting under the Tenth Schedule, possesses an inherent power of review to set aside his own disqualification orders.
The appropriate remedy and consequences of declaring the Speaker's review orders null and void.

Legislation cited

Constitution of Indias. Article 103, s. Article 136, s. Article 192, s. Article 226, s. Tenth Schedule
Representation of the People Act, 1951s. Section 81(1)

Subjects

Tenth Scheduleanti‑defection lawSpeaker's power of reviewlachesquo warrantopublic interest litigationdisqualification of legislatorsjudicial reviewGoa Legislative Assembly

Judgment

A DR. KASHINATH G. JALMI AND ANR. ETC. ETC.
v.
SPEAKER AND ORS.

MARCH 31, 1993

B (J.S. VERMA, P.B. SAWANT AND N.M. KASLIWAL, JJ.]

Constitution of India, 1950:

Article 226-Writ-Dismissal at admission stage on ground of --:-
C /ache,,-Whether valid.

Legislative Assembly-Speaker's order disqualifying members under
Tenth Schedule-Review by Speake,-Setting aside disqualification or-
der,,-Writ in the nanire of class action challenging review order after ten
month,,-Allegation that disqualified members continue to hold public of-
D [ice-Dismissal by High Court on the ground of /aches held unjustifie<f-Anal-
ogy of limitation provided under Section 81( I) of People's Representation
Act, 1951 held inapplicable-Distinction between writs enforcing personal
rights and writs relating to assertion of public rights in the nature of class
action held re/evam-Motive and conduct of petitioner held relevant only for
denying costs but not a justification to refuse examination of question of
E public concern on merits.

Doctrine of /aches.

Te111h Schedule-Legislative Assembly-Order of Speaker disqualifying
members on the ground of defectiorr-:Speaker whether has implied power to
F review-Disqualification order.

Article 136-Appea/ by special /eave-Dismissal of writ petitions by
High Court on the ground of /ache,,-Whether susceptible to interference.

R.S., R.M. and S.B. were elected as Members of the Goa Legislative
G Assembly in the Elections held in November, 1989. Subsequently, R.S.
assumed office of Chief Minister and formed his Council of Ministers
including R.M. and S.B. as Ministers. Thereafter, the appellant (In C.A.
1094/92), a Member of the Assembly, presented a petition to the Speaker
of the Assembly seeking disqualification of R.S. on the ground that he had
H voluntarily given up the membership of his political party. By its order
820
K.G. JALMI v. SPEAKER 821

dated 15.2.91 the Speaker passed an order under Para 6 of the Tenth A
Schedule of the Constitution disqualifying R.S. on the ground of defection.
R.S. filed a writ petition before the Goa Bench of the Bombay High Court
challenging the order of disqualification and by an interim order the High
Court stayed the operation of the disqualification order. During the pen·
r· dency of the writ petition the Speaker was removed from office and a B
deputy speaker was elected in bis place who began functiouing as S.peaker.
R.S. filed an application before the Acting Speaker seeking review of his
Disqualification order and on 8.3.91 the Acting Speaker passed an order,
in purported exercise of his power of review under the Tenth Schedule,
setting aside the Disqualification order dated 15.2.91. Consequently tile
writ petition filed by R.S. challenging bis disqualificatiou order was dis- C
missed as not pressed, by the High Court on 8.1.92 the appellant filed a
petition challenging the review order dated 8.3.91 passed by the Acting
Speaker on the ground that the Speaker did not have any power to review
the earlier order of disqualification. Without going into the merits of the
case the High Court dismissed the petition at the admission singe on the D
ground of laches. The decision of the High Court was impugned before
this Courts.

Subsequently, another member of the Assembly, appellant in C.A.
1096/92, also filed a writ petition challenging the review order dated 8.3.91
passed by the Acting Speaker setting aside the earlier order disqualifying E
R.S~ on similar grounds. The High C<1urt also dismissed the same at the
admission stage for the same reason, i.e. lacbes. Against the order dis-

- missing the writ petition an appeal was preferred in this Court.

In the connected appeal (C.A. 1095/92) the appellant applied to the F
Speaker seeking disqualification of R.M. and S.B. on the ground of defec·
tion and by his order dated 13.12.90 Speaker passed the order disqualify-
ing R.M. and S.B. under the Tenth Schedule. Both of them filed petitions
challenging the disqualification order and by an interim order the High
Court stayed the disqualification orders. In the meantime, in a manner
similar to that in the case of R.S., the Acting Speaker by his order dated G
7.3.91, in purported exercise of the review. set aside the orders dated
13.12.90 disqualifying R.M. and S.B. The appellant filed a petition chal-
lenging the orders of review passed by the Acting Speaker. It was also
dismissed by the High Court on the ground of laches. Against dismissal
of the writ petition an appeal was filed before this Court. H
i
-.(

822 SUPREME COURT REPORTS [1993] 2 S.C.R.

A Jn appeals to this Court, it was contended on behalf of the appel-
lants that (l) the mere delay in challe11ging the legality of the authority
under which respondents continue to hold public office, after being dis-
qualified as Members of the Assembly, was not a valid justification for the
High Court to refuse to examine the main question of existence of power

B
of review in the Speaker acting under the Tenth Schedule, since the
discretion of the High Co'!lrt under Article 226 of the Constitution must
r
be exercised judicially, so as not to permit perpetuation of an illegality; (2)

C
the doctrine of laches does not apply where declaration sought is of 1
nullity, in order to prevent its continuing operation, and laches is not
relevant in the domain of public law relating to public office, where the
purpose is to prevent an usurper from continuing to hold a public office;
--
(3) the power of review in the Speaker cannot be implied from the
provisions in the Tenth Schedule, and the only remedy available to the
aggrieved person is by judicial review of the order of the disqualification;
and (4) that the motive and conduct of the petitioners-appellants in such
D matters is not decisive or fatal to the enquiry claimed in the writ petition,
inasmuch as the relief claimed by them was not for their personal benefit
but for larger public interest and good governance of the State by persons
holding public offices.

On behalf of the respondents it was contended that (1) even though
E there is no statutory limitation for filing a writ petition; yet in a case like
the present, the apt analogy is of an election petition challenging an
election, which is to be filed within 45 days from the date of election of the
returned candidate, under Section 81(1) of the Representation of the
People Act, 1951, to indicate that unless such a challenge is made prompt-
. --
F ly the courts would refuse to examine such a question after the lapse of a
reasonable period; hence petitions filed after ten months of the date of the
order of review made by the Speaker were rightly rejected on the ground
of lacbes; (2) the doctrine of laches applies as much to the writ of quo
warranto, as it does to a writ of certiorari; (3) in view of the finality
attaching to the order made by the Speaker under para 6 of the Tenth
G Schedule the power of review inheres in the Speaker for preventing mis-
carriage of justice, in situations when the speaker himself is of the view · )'
that continuance of his earlier order of disqualification would perpetuate
injustice; (4) the inherent power of review in the Speaker must be read in
the Tenth Schedule, at least upto 12th November, 1991 when the Judgment
H in Kihoto Hollohan was rendered declaring the availability of judicial
.•
\

-r KG. JALMl v. SPEAKER 823

review against the Speaker's order or disqualification made under para 6 A
of the Tenth Schedule; (5) only a limited judicial review being available
against the Speaker's order or disqualification, as held by the majority in
Kihoto Hollohao, some power of review inheres in the Speaker even
'r thereafter lo correct palpable errors railing outside the limited scope ur
judicial review; and (6) the appellants were not only associated with R.S.
B

-
at different times but also they obtained benefits from him, thus, lo view
or the ok>lique motive coupled with their conduct, the High Court was
justified in refusing to exercise its discretionary powers under Article 226
orthe.Constitution at tlie behest or the appellants; the power under Article
136 also being discretionary this Court would also be justified in rerusing
to intenere with the discretion so exercised by the High Court. c
' Allowing the appeals, this Court,

HELD: 1. The judgment or the High Court that the writ ·petitions
were liable to be dismissed, merely on the ground of laches cannot be
sustained. [834-C] D

2. The exercise of discretion by the Court even where the application
is delayed, is to be governed by the objective of promoting public interest
~ and good administration; and on that basis it cannot be said that discre-
tion would not be exercised in favour of interference where it is necessary
E
to prevent continuance of usurpation or office or perpetuation or an
illegality. [839-F)

3. Io the present case the claim is for the issue or a writ or quo warranlo
on the ground that respondents are holding public ollices, having suffered
>.. disqualification as Member of the Assembly subsequent to their election, F
and on• of them, continues to hold the high public office of Chief Minister.
The relier claimed in the present case in not the conferment of a personal
benefit to the petitioners, but for cessation or the usurpation of public
offices held by respondents. Thus, the relier claimed by the appellants in
their writ petitions filed in the High Court being in the nature of a class
G
r action, without seeking any relief personal to them, should not have been
dismissed merely on the ground of laches. [837 C·D, 839-H, 840-A)

3.1. The motive or conduct of the appellants, as alleged by the
respondents, can be relevant only for denying them the costs even if their
claim succeeds, but it cannot be a justification to refuse to examine the H
K.G. JALMI v. SPEAKER 825

5. The Speaker has no power of review under the Tenth Schedule, A
and an order of disqualification made by him under para 6, thereof Is
subject to correction only by judicial review. (841 ·F)

'r Kihoto Hollohan v. Zachil/u and Ors., (1992) Supp. 2 S.C.C. 651,
referred to.
B
Observations in Patel Narshi Thakershi & Ors. v. Pradyumansinghji
Arjunsinghji, A.l.R. 1970 S.C. 1273 to the effect that the power to review is
not inherent power and must be conferred by law either specifically or by
necessary implications, relied on.

"\ 5.1. There is no scope for reading i111to the Tenth Schedule any of the
c
powers of the Speaker which he otherwise has while functioning as the
Speaker in the House, to clothe him with any such power in his capacity
as the statutory authority functioning under the Tenth Schedule of the
Constitution. Accordingly any power of the Speaker, available to him while
functioning in the House, is not to be treated as bis power of privilege as D
the authority under the Tenth Schedule. (842 G·H, 843-A)

Rule 7(7) of the Members of the Goa Legislative Assembly (Dis·
~ qualification on grounds of Defection) Rules, 1986 and Rule 77 of the
Rules of Procedure and Conduct of Business of the Goa Legislative As·
sembly held inapplicable. E

- 6. Para 7 has to be treated as non-existent in the Tenth Schedule
from the very inception. As held by the majority in Kihoto Hol/ohan
judicial review is available against an order of disqualification made by
)... the Speaker under para 6 of the Tenth Schedule, notwithstanding the F
' finality mentioned therein. It is on account of the nature of finality attach·
ing by virtue of para 6, that the judicial review available against the
Speaker's order has been labelled as lim_ited in Kihoto Hollohan and the
expression has to be understood in that sense distinguished from the wide
power in an appeal, and no more. Thus the Speaker's order is final being
'( subject only to judicial review, according to the settled parameters of the G
exercise of power of judiclal review in such cases. The existence of judicial
review against the Speaker's order of disqualification made under para 6
is itself a strong indication to the contrary that there can be no inherent
power of review in the Speaker, read in the Tenth Schedule by necessary
implication. [845 B·E) H
.~
826 SUPREME COURT REPORTS [1993]° 2 S.C.R.

A 7. There is no merit in the submission that the power of review
inheres in the Speaker under the Tenth Schedule as a necessary incident I

of his jurisdiction to decide the question of disqualilication; or that such
a power existed till 12th November, 1991 when the decision in Kihoto
Hollohan was rendered; or at least a limited power of review inheres in -,-
the Speaker to correct any palpable error outside the scope of judicial
B
review. [845 F·G]

Kihoto Hollohan v. Zachillhu and Ors., [1992] Suppl. t S.C.C. 651, .-
explained.

c and Grindlays
Shivdeo Singh & Ors. v. State of Punjab & Ors., A.I.R. 1963 S.C. 1909
Bank Ltd. v. Central Government Industrial Tribunal & Ors.,
[1981] 2 S.C.R. 341, distinguished.
,,
8. The impugned orders of the High Court, dismissing writ Petitions
are set aside. The orders made by the Acting Speaker in purported
D exercise of power of review are nullity and liable to be ignored. [847 E-F)

. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1094 of
1992.

WITH
E
Civil Appeal No.1095 of 1992.

AND -
Civil Appeal No. 1096 of 1992.
F
From the Judgment and Order dated 4.2.92 & 24.2.92 of the Bombay
High. Court in W.P. Nos.11, 8 & 70 of 1992.

R.K. Garg, Ram Jethmalani, V.A. Bobde, Harish N. Salve, K.J. John,
G Ms. Deepa Dixit, Rakesh Gosain, Ms. Rani Jethmalani, P.K. Dey and Ms.
Shanta Ramchand for the Appellants. ~
'
Ashok Desai, F.S. Nariman, R.F. Nariman, P.H. Parekh, Sunil Dogra,
J.D. Dwarka Das and S.C. Sharma for the Respondents.

H The Judgment of the Court was delivered by
<

>-
K.G. JALMI v. SPEAKER [VERMA, J.] 827
'1-
VERMA, J. These appeals, by special leave, arise from writ petition A
Nos.11 of 1992, 8 of 1992 and 70 of 1992, all dismissed by the Bombay High
Court at the Goa Bench merely on the ground of !aches; and they involve
for decision 1he common question relating to the power of review, if any,
of the Speaker to review his decision on the question of disqualification of
y a Member of the House, rendered under the Tenth Schedule to the
B
Constitution. In those writ petitions, the orders passed by the Speaker, in
purported exercise of the power of review, setting aside the earlier orders

-
of disqualification of certain Members made on merits by the Speaker,
were challenged on the ground that the Speaker has no such power of
review. The High Court took the view, that the writ petitions were filed
after considerable delay, and, therefore, upholding the preliminary objec- c
tion, had to be dismissed merely. on the ground of !aches; and, therefore,
merit• of the contention that the Speaker had no such power of review was

' no! considered. The main questions which arise for decision in these
appeals are, therefore, two; namely

( 1) LA CHES - Are the impugned orders of the High D
Court dismissing the writ petitions merely on the ground
of !aches susceptible to interference under Article 136 of
the Constitution in the present case; and

(2) POWER OF REVIEW - If so, does the Speaker, acting E
as the authority under the Tenth Schedule of the Constitu-
tion, have no power of review, so that any order made by
him in purported exercise of the power of review is a
- nullity?

The further question of the consequence and nature of relief to be F
)...
granted, would arise only if these questions are answered in favour of the
· appellants.

Ravi S. Naik, Ratnakar M. Chopdekar and Sanjay Bandekar were
duly elected Members of the Goa Legislative Assembly in the elections
held in November, 1989. On 25.1.1991, Ravi S. Naik assumed the office of G
the Chief Minister of the State of Goa and he formed his Council of
·( Ministers, which include.<! Chopdekar and Bandekar as Ministers. On the
same day, i.e. on 25.1.1991, Dr. Kashinath Jalmi, also a Member of the
Legislative Assembly, presented a petition to the Speaker, Surendra V.
Sirsat seeking disqualification of Ravi S. Naik as a Member of the Legis- H
)

828 SUPREME COURT REPORTS [1993] 2 S.C.R.
~
A lative Assembly on the ground that he had voluntarily given up the Mem-
bership of his political party. On 16.2.1991, the Speaker, Surendra V. Sirsat
passed an order under para 6 of the Tenth Schedule to the Constitution,
disqualifying Ravi Naik on the ground of defection. On 16.2.1991, Ravi
Naik filed writ petition No.48 of 1991 at the Goa Bench of the Bombay
High Court challenging the order of bis disqualification, made by the "(
B
Speaker under the Tenth Schedule to the Constitution. On 18.2.. 1991, the
High Court passed an interim order in that writ petition staying operation.
of the order of disqualification made by the Speaker. During the pendency

c
of this writ petition, on 27.2.1991, Simon Peter D'Souza was elected Deputy
Speaker of the Goa Legislative Assembly; on 4.3.1991 Surendra V. Sirsat
was removed from the office of Speaker and the Deputy Speaker, Simon
-
Peter D'Souza began functioning as the Speaker in place of Surendra V.
Sirsat. The same day, i.e. on 4.3.1991, Ravi S. Naik made an application to
Simon Peter D'Souza, the Deputy Speaker functioning as the Speaker of
r
the Goa Legislative Assembly, for review of the orc\er dated 15.2.1991 of
his disqualification made by the Speaker, Surendra V. Sirsat under the
D
Tenth Schedule. On 8.3.1991, the Acting '1ipeaker, Simon Peter D'Souza
made an order, in purported exercise of the power of the· review under the
Tenth Schedule, setting aside the order dated 15.2.1991 made by the
Speaker, Surendra V. Sirsat disqualifying Ravi S. Naik as a Member of the
Goa Legislative Assembly. Thereafter, Writ Petition No.48 1991 filed by
E Ravi Naik challenging the order of the his disqualification made by the )...
Speaker on 15.2.1991 Was dismissed as not pressed by him, on 22.4.1991.

F
On 8.1.1992, Writ Petition No.11 of 1992 was filed by Dr. Kashinath
Jalmi and Ramakant Khalap challenging the order of review dated 8.3.1991
passed by the Acting Speaker, inter a/ia on the ground that the Speaker
did not have any power to review the earlier order of disqualification made
-
under the Tenth Schedule to the Constitution of India. The High Court by ,.\
the order dated 4.2.1992 upheld the preliminary objection of Ravi S. Naik
tha! the writ petition filed ten months after the date of the impugned order,
was liable to be dismissed at the admission stage on the ground of laches.
G This order, dismissing the writ petition for this reason alone, is challenged
in Civil Appeal No. 1094 of 1992.

After the dismissal of writ petition No.11 of 1992, another Member
r
of the Goa Assembly, Churchill Alernao filed writ petition No.70 of 1992,
H also challenging the order of review dated 8.3.1991 made by the Acting
K.G. JALMI v. SPEAKER [VERMA, J.] 829

Speaker setting aside the earlier order dated 15.2.1991 made by the A
Speaker disqualifying Ravi Naik, on similar grounds. The High Court
dismissed writ petition No.70 of 1992 also at the admission stage, for the
same reason, on the ground of !aches. Civil Appeal No.1096 of 1992 by
Churchill Alemao is against the order dated 24.2.1992 dismissing writ
petition No.70 of 1992.
B
On 10.12.1990, Ramakant D. Khalap applied to the Spedker,

- Surendra V. Sirsat seeking disqualification of Sanjay Bandekar and Rat-
nakar Chopdekar as Members of the Goa Legislative Assembly, for the
defoction under the Tenth Schedule. On 11.12.1990, the S~ker served
nouces on these Member. On 13.12.1990, Bandekar and Chopdekar filed
C

writ petition No.321 of 1990 at the Goa Bench of the Bombay High Court
challenging the show cause notices issued to them by the Speaker. On the
same day i.e. on 13.12.1990, the Speaker, Surendra V. Sirsat made the
orders disqualifying Bandekar and Chopdekar as Members of the Assemb-
ly, under the Tenth Schedule. On 14.12.1990. Writ Petition No.321 of 1990 D
was amended to challenge the orders of disqualification dated 13.12.1990
made by the Speaker against Bandekar and Chopdekar. The Writ Petition
was admitted by the High Court, and an interim order made staying the
orders of disqualification dated 13.12.1990 made by the Speaker. Unlike
the writ petition No.48 of 1991 by Ravi Naik which was dismissed as not E
pressed on 22.4.1991 after the order of review made by the Deputy
Speaker, writ petition No.321 of 1990 by Bandekar and Chopdekar is still
pending in the High Court with the interim order made therein subsisting.

In the meantime, in a manner ~imilar to that in the case of R3vi Naik, F
the Deputy Speaker functioning as the Speaker, on applications made to
him for the purpose, passed orders on 7.3.1991, purporting to exercise the
power of review, whereby the orders dated 13.12.1990 made by the Speaker
disqualifying Bandekar and Chopdekar under the Tenth Schedule have
been set aside. This led to the filing of writ petition No. 8 of 1992 by G
Ramakant D. Khalap on 7.1.1992 at the Goa Bench of the Bombay High
Court, challenging the orders of the review dated 7.3.1991 passed by the
Acting Speaker. This writ petition also, has been similarly dismissed merely
on the ground of !aches on 4.2.1992. Civil Appeal No.1095 of 1991 has,
therefore, been filed against dismissal of writ petition No.8 of 1992. H
,/

830 SUPREME COURT REPORTS [1993] 2 S.C.R.

A This is how the same questions relating to !aches justifying dismissal
of these writ petitions, and the power of review, if any, of the Speaker
under the Tenth Schedule, arise for decision in these appeals.

The rival contentions may now be mentioned. Shri Ram Jethmalani
B "(
for the appellant in C.A. No.1094 of 1992, Shri Barish Salve for the
appellant in C.A. No.1095 of 1992 and Shri R.K. Garg for the appellant in
C.A. No.1096 of 1992 advanced substantially similar arguments, to contend

c
that dismissal of the writ petitions by the High Court on the ground of
!aches is insupportable, in the present context, where challenge to the order
of review made by the Speaker under the Tenth Schedule is on the ground
-
of nullity, since the Speaker has no power of review under Tenth Schedule,
and that the the order of review being a nullity, must be so declared. In
reply, Shri F.S. Nariman for respondent Ravi S. Naik in Civil Appeal Nos. r
1094 and 1096 of 1992, and Shri Ashok Desai for respondents Bandekar
D and Chopdekar in Civil Appeal No.1095 of 1992, strenuously urged that
the exercise of power under Article 226 of the Constitution being discre-
tionary, the refusal to exercise that power at the instance of the writ
petitioners was a proper exercise of the discretion, which does not call for
any interference by this court in exercise of its power under Article 136 of
the Constitution. Both the learned counsel, in their reply, further sub-
E mitted, that by the very nature of the high office of the Speaker and the
~
finality attaching to the order made by the Speaker under para 6 of the
Tenth Schedule, the power of the review inheres in the Speaker for
preventing miscarriage of justice, in situations when the Speaker himself is

F
of the view that continuance of his earlier order. of disqualification would
perpetuate injustice. It was further submitted by them, in the alternative,
-
that in view of the limited scope of judicial review of the Speaker's order
of disqualification made under para 6 of the Tenth Schedule, as held in
the majority opinion in Kihoto Ho/lohan v. Zachil/hu and Ors., [1992] Supp.
2 sec 651, it is implicit that at least a limited power of review inheres in
the Speaker, to correct palpable errors outside the scope of the limited
G judicial review available against the order of disqualification made by the
speaker under the Tenth Schedule. It was urged by them, that the alleged
infirmities in the orders of disqualification made in the present case by the
·speaker fell within, at ·least this limited power of review which inheres in
'rI
the Speaker. Shri Nariman, as well as Shri Desai, strongly relied on the
H majority opinion in Kihoto Hol/ohan to support these submissions.
I
}
K.G. JALMI v. SPEAKER [VERMA, J,] 831

The last alternative submission of Shri Nariman was, that in case A
there is no power of review in the Speaker under the Tenth Schedule, as
a result of which the orders made by the Acting Speaker in purported
exercise of that power have to be declared nullity and ignored, then writ
petition No.48 of 1991 by Ravi S. Naik being dismissed as not pressed on
22.4.1991 because the order of his disqualification had been set aside by B
the order of review, must be revived along with the interim stay granted
therein to enable Ravi S. Naik to pursue the remedy which he had invoked,
to challenge the order of his disqualification which is open to judicial
review. This submission of last resort made by Shri Nariman, was strongly
opposed by Shri. R.K. Garg appearing for the appellant Church Alemao.
On the other hand, Shri Ram Jethmalani appearing for the appellants in C
C.A. No.1094, not only did not oppose such a direction being given, but in
his opening address itself suggested this as the equitable course to adopt.
But for the stand taken on this aspect, there was no difference in the
submissions of Shri Garg and Shri Jethmalani.

D
Both sides attempted to refer to the facts leading to the making of
the orders of disqualification of the Members, and the merits thereof.
However, we do not propose to advert to them, as we had indicated to the
learned counsel at the hearing, since those aspects will have to be gone
into, in the first instance by the High Court, on the view we are taking in E .
these appeals and, therefore, we would like to avoid the likelihood of any
possible prejudice to either side resulting from any reference made by us
to the same. Accordingly, we are confining ourselves only to the facts and

- the arguments relating to the aforesaid two questions, which alone arise
before us. We may add, that for the purpose of these appeals, it has been
. assumed by both sides that the Deputy Speaker functioning as the Speaker F
would have the powers of the Speaker under the Tenth Schedule including
that of review, if any. The further question whether the Deputy Speaker,
who discharging the functions of the Speaker, has all the powers of the
Speaker under the Tenth Schedule is, therefore, undisputed for the present
purpose. G

We shall now consider th~ aforesaid two main questions \vhich arise
for decision in the present case. Any further question arising for decision,
in case both these questions are answered in favour of the appellants, will
be considered thereafter. H
832 SUPREME COURT REPORTS [1993] 2 S.C.R.

A LACHES-

The High Court has taken the view that the impugned orders of
review having been made by the Acting Speaker on 7th and 8th March,
1991, the writ petitions challenging them filed on 7.1.1992, 8.1.1992 and
B 10.2.1992 were highly belated and, therefore, liable to be dismissed merely
on the ground of !aches. It is for this reason that they were dismissed at
the admission stage itself, sustaining the preliminary objection taken on this
ground by Ravi S. Naik, Chopdekar and Bandekar, in whose favour the
orders of review had been made. The High Court has referred to certain
decisions of this Court for applying the doctrine of !aches, and declined to
c consider the merits of the main point raised in the writ petitions, that the
Speaker does not have any power of review acting under the Tenth
Schedule. The High Court has also held as untenable, the explanation given
by the writ petitioners that uncertainty of the law settled only by the
.,..
/
decision of this Court in Kihoto Hol/ohan (supra) rendered on 12th
D November, 1991 was the reason for not filing those writ petitions earlier.
Learned counsel for the appellants have assailed application of the
doctrine of !aches in the present situation, and also contended that if any
explanation was needed for the intervening period, pendency of the ques-
tion of constitutional validity of Tenth Schedule itself in this Court was
sufficient to explain the period up to the date of the decision, and the writ
E petitions were filed soon thereafter. It was also submitted by learned
counsel for the appellants, that the continuance in office of disqualified
persons, even now, provides recurring cause of action, since the con-
tinuance in office without lawful authority of these persons, one of whom
is the Chief Minister of the State of Goa, is against public policy and good
F administration. It was submitted, the Court cannot decline to examine the
-
validity of the authority under which they continue to hold office. On this •
basis it was urged that the mere delay, if any, in challenging the legality of
the authority under which these three persons continue to hold office, after
being disqualified as Members of the Assembly, could not be a valid
justification for the High Court to refuse to examine the main question of
G existence of power of review in the Speaker acting under the Tenth
Schedule, since the discretion of the High Court under Article 226 of the
Constitution mu>t be exercised judicially, so as not to permit perpetuation
of an illegality. Shri Jethmalani also submitted, that the doctrine of !aches
does not apply where declaration sought is of nullity, in order to prevent
H its continuing operation, and !aches is not relevant in the domain of public
K.G. JALMI v. SPEAKER [VERMA, J.] 833

law relating to public office, where the purpose is to prevent an usurper A
from continuing to hold a public office.

Shri Harish Salve adopted these arguments and further submitted
that Dr. Kashinath Jalmi and Ramakant Khalap had consistently taken the
stand, that the Speaker's order of disqualification is final and not open to B
review by anyone. He submitted, that for this reason no prevarication in
their stand can be attributed to either of them, as has been done against
Churchill Alemao, by the learned counsel for the respondents, for his
support to Ravi Naik during the intervening period. It was further urged
by the learned counsel for the appellants, that the motive and conduct of
the writ petitioners in such ·matters is not decisive or fatal to the enquiry C
claimed in the writ petition, in as much as the relief claimed in the writ
petition was not for personal benefit of the writ petitioner but for )arger
public interest and good governance of the State of Goa by persons holding
public offices, including that of the Chief Minister, only by lawful authority.
D
Both Shri F.S. Nariman and Shri Ashok Desai supported the Judg-
ment of the High Court, and stn;nuuusly urged that the High Court in
exercise of its discretionary power under Article 226 of the Constitution
was justified in refusing to exercise that power at the behest of the writ
petitioners who were disentitled to grant of the relief on account of their
conduct and motive for filing the writ petition. It was submitted by them E
that the writ petitioners, namely, Churchill Alemao, Dr. Kashinath Jalmi
and Ramakant Khalap are all persons who, at different times, were as-
sociated with Ravi S.Naik as Chief Minister and were also obtaining benefit
- from him, which conduct coupled with their mctive of getting more politi-
cal power to themselves, disentitled them from elaiming the relief. Shri F
Nariman submitted that the doctrine of !aches applies equally to a writ of
quo wa"anto, as it does to a writ of certiorari. It was also submitted by
learned counsel for the respondents that the explanation given for the delay
in filing the writ petitions, challenging the orders of review made by the
Acting Speaker, is facile and untenable It was submitted, that not-
withstanding the pendency of the question of the validity of the Tenth G
Schedule in this Court, writ petitions were being filed challenging the
orders made by the Speakers under the Tenth Schedule. It was submitted
that all the writ petitioners, in view of their status in life, were fully aware
that the Speaker's order of review could be challenged by a writ petition,
even before the decision rendered by this Court on 12th November, 1991 H
834 SUPREME COURT REPORTS [1993] 2 S.C.R.

A in Kihota Hollohan. The main thrust of the argument of the counsel for
the respondents was, that in these circumstances the High Court was
justified in dismissing the writ petitions at the threshold in exercise of its
discretionary power under Article 226 of the Constitution, and, therefore,
the power under Article 136 of the Constitution also being discretionary,
this Court would be justified in refusing to interfere with the discretion so
B exercised by the High Court.

Having given our anxious consideration to the forceful submissions
of learned counsel for the both sides, we find ourselves unable to sustain
the judgment of the High Court that the writ petitions were liable to be
C dismissed, merely on the ground of !aches.

One of the submissions of Shri Nariman was, that even though there
is no period of limitation prescribed by statute for filing a writ petition, yet
in a case like the present, the apt analogy is of an election petition calling
D in question an election, which is required to be filed within 45 days from
the date of election of the returned candidate, as provided in Section 81(1)
of the Representation of the People Act, 1951, to indicate that unless such
a challenge is made promptly the courts would refuse to examine such a
question afte1 the lapse of a reasonable period. On this basis, he argued
that a writ petition filed after ten months of the date of the order of review
E made by the Speaker acting under the Tenth Schedule, must be treated as j__
unduly delayed and is liable to rejection on the ground of !aches, as has
been done by the High Court in the present case. We are unable to accept

F
this part of the submission since it is not an apt analogy.

The remedy of an election petition is statutory, governed by the
-
limitation prescribed therein, unlike the remedy under Article 226 of the
Constitution. That apart, the analogy which is more apposite, is the
decision on questions as to the dis-qualification of Members in accordance
with Article 103 in the case of a Member of Parliament or Article 192 in
G the case of a Member of a House of a Legislature of a State. For raising
a dispute, giving rise to any question whether a Member of a House has
become subject to any of the disqualification mentioned in clause (1) of
Article 102 or 191, as the case may be, there is no prescribed limitation,
and so also for challenging the decision rendered under Article 103 or 192
by a writ petition. The question of the disqualification of a Member on the
H ground of defection and the Speaker's order thereon, rendered under the
·~. K.G. JALMI v. SPEAKER [VERMA, J.] 835

Tenth Schedule, is of a similar nature and not based on the result of an A
election which can be challenged only by an election petition in accordance
with the provisions of Representation of the People Act, 1951.

The decision by a constitution bench in Brundaban Nayak v. Election
Commission of India and another, [1965] 3 SCR 53 indicates the sig-
nificance of deciding the question of disqualification of a Member as soon B
as it arises, even at the instance of a citizen, since 'the whole object of

- democratic elections is to constitute legislative chambers composed of
members who are entitled to that status, and if any member forfeits that
status by reason of a subsequent disqualification, it is in public interest,'
.......... ., that the matter was decided. c
There is no indication in Bnindaban Nayak, that the delay in raising
the question of disqualification provides justification for refusing to decide
the same, and the emphasis really is on a prompt decision by the competent
authority on the question being raised, since it is not the interest of the
constituency which such a Member represents, to delay the decision. This D
decision is an indication that the authority competent to decide the ques-
tion of disqualification must act promptly in deciding the same, once it is
raised even by a citizen, in order to prevent a disqualified Member from
representing the constituency after incurring a disqualification subsequent
to h!s election, so long as the ·question remains a live issue during the tenure E
of the Member. This aspect is significant for dealing with the question of
!aches in the present case.
- In order to justify dismissal of the writ petitions for !aches Shri
Nariman placed reliance on certain decisions, some of which have been
referred by the High Court. Shri Nariman argued that the doctrine of F
!aches applies as much to the writ of quo wa"anto, as it does to a writ of
certiorari, and that the oblique motives of the petitioner together with his
conduct may disentitled him to grant of the relief claimed by such a
petition. We now refer to some of these decisions.

The basic decision for submission on the doctrine of !aches, relied G
on, is "Die Lindsay Petroleum Company v. Prosper Amzstrong Hurd, Abram
Farewell and John Kemp, 1874 L.R. 5 PC 221 which has been followed in
the decisions of this Court in The Moon Mills Ltd. v. M.R. Meher, Preside/ti,
llldustrial Cozm, Bombay and Ors., AIR 1967 SC 1450 and Maharashtra
State Road Transport Corporation v. Sltri Ba/want Regular Motor Service H
836 SUPREME COURT REPORTS [1993] 2 S.C.R.

A Amravati & Ors., [1969] 1 SCR 808. In The Moon Mills Ltd., a writ of
certiorari was sought to challenge a decision affecting the rights of the
Petitioner, wherein the question arose whether the petitioner could be
denied the relief on the ground of acquiescene or !aches. In that context it
was observed that the issue of a writ of certiorari is a matter of sound

B
discretion, and that 'the writ will not be granted if there is such negligence ""'
or omission on the part of the applicant to assert his right as taken in

c
conjunction with the lapse of time and other circumstances, causes
prejudice to the adverse party.' It was observed, that the exercise of
discretion under' Article 226 to issue a writ of certiorari is based on the
principle to a great extent, though not identical with, similar to the exercise
of discretion in the Court of Chancery.' For this principle, involving the
-
doctrine of !aches in courts of equity, reference was made to the observa-
tion of Sir Barnes Peacock in Lindsay Petroleum Co. The decision was
followed in, and the principle reitered in Maharashtra State Road Transport
Corporarion again in the context of the discretion under Art. 226 of the
Constitution to issue a writ of certiorari. Like all equitable principles, the
D
doctrine of !aches applies where it would be unjust to give a remedy to the
petitioner, who is disentitled to grant of the same by his conduct or any
other relevant circumstances, including the creation of third party rights
during the intervening period, which are attributable to the !aches of the
petitioner.
E
Strong reliance was placed on the decision in Mis Tilokchand &
Motichand & Ors. v. H.B. Munshi & Anr., (1969) 1 SCC 110, wherein relief·
under Article 32 of the Constitution was refused on the ground of delay,
-
to contend that if delay can be fatal under Article 32, itself a fundamental
F right, it is more so in a petition under Article 226 of the Constitution,
wherein grant of the relief is discretionary. The decision of this Court in
Shri Val/abh Glass Works Ltd. and Anr. v. Union of India and Ors., [1984]
3 SCC 362 an<) Mis Dehri Rohtas Light Railway Company Ltd. v. District
Board, Bhojpur and Ors., [1992) 2 SCC 598 were also cited on the point.
In Shri Val/abh Glass Words Ltd., a writ petition by way of alternative
G remedy was filed after expiry of statutory period of limitation prescribed
for filling suit for the same claim, and yet that alone was not held ta be·
y
'
fatal taking the view that reasonableness of delay in filing the writ petition
is to be assessed having regard to the facts and circumstances of the case,
since grant of the relief under Article 226 of the Constitution is a matter
H of sound judicial discretion and governed by the doctrine of !aches.
K.G. JALMI v. SPEAKER [VERMA, J.) 837

In Mis Dehri Roh/as Light Railway Company Limited, Tilokchand A
Motichand's case was distinguished and it was indicated that 'the test is not
to physical running of time' and 'the real test to determine delay in such
cases is that the petitioner should come to the writ court before a parallel
'r'. right is created.'

B
It is significant that all these decisions relate to enforcement of

-
personal rights, wherein a writ of certiorari was claimed for quashing some
decision adverse to the petitioner and neither of them related to assertion
of a public right in the nature of a class action. In the present case the
claim is for the issue of a writ of quo wa"anto on the ground that Ravi S.
Naik, Chopdekar and Bandekar are holding public office, having suffered C
disqualification as Member of the Assembly subsequent to their election,
and of them, Ravi S. Naik continues to hold the high public office of Chief
1 Minister of Goa. The relief claimed in the present case is not the confer-
ment of a personal benefit to the petitioners, but for cessation of the
usurpation of public offices held by these persons, if the contention of the D
petitioners be right that orders of review setting aside the earlier orders of
disqualification made by the Speaker under the Tenth Schedule are nullity

The decision of the Privy Council in the Lindsay Petroleum Company
was followed by the House of Lords in Emile Erlanger and Ors. v. The New
Sombrero Phosphate Company and Ors., [1878] 3 Appeal Cases 1218 E

-
wherein reliance on the doctrine of !aches by Courts of Equity for refusing
relief where it would be practically unjust to grant the same, was reiterated.
It was also reiterated that two circumstances always important in such cases
are the length of the delay and the nature of the acts done during the
interval, which might affect the justice of the cause. F

Once again this principle was reiterated by the Privy Council in
A11achu11a Nwakobi,. 17te Osha of Obosi and Ors. v. Engene Nzekwu and
A11r., [1964] 1 WLR 1019 quoting the same passage from The Lindsay
Petroleum Company.
G
y· None of these cases rdate to the writ of quo waminto and in them
the relief claimed was only for the personal benefit of the claimant. We are
not persuaded to hold that on the basis of these decisions, some of which
are referred by the High Court, the writ petitions in the present case .could
have been dismissed merely on the ground of !aches of the petitioners. H
838 SUPREME COURT REPORTS (1993] 2 S.C.R. f
A We would now refer to the contention of Shri Nariman that this
principle attracting the doctrine of (aches equally applies to a writ of Quo
Wammto, sought in the present case. For this purpose, Shri Nariman
placed reliance on the decision in Everett v. Griffiths, (1924] 1 K.B. 941 at
959 in addition to Halsbury's Law of England, Fourth Edition, Reissue,

B
Volume 16, Para 926. r
In Halsbury's Law of England the statement of law is based primarily
on the decision of the Privy Council in T11e Lindsay Petroleum Company
and those following it. We have already indicated the inapplicability of
those decisions in the present case. At the same place one of the decisions
-
C referred to, in foot note 3 of para 926, is A.G. v. Proprietors of the Bradford
Canal (1866) LR 2 Equity Cases 71) for the proposition that "Laches is not
imputable to the Crown or to the Attorney General suing on behalf of the
public." In this decision distinction was drawn between the claim on behalf
of the public and that by an individual plaintiff indicating that even though

D
delay or laches may be attributable to an individual plaintiff, it may not he
so to an action brought on behalf of the public. This is more so, when the
f
grievance made is that a person continues to hold a public office without t
the authority of law. [
Shri Nariman laid great stress on Everett v. Griffiths, (1924) 1 K.B. ,i
E 941 at page 959 where it is stated:.
t
"It is plain, however, that in quo warranto proceedings the
Court can and will inquire into the conduct and motives
of the relator." -
F Reference is made to a passage from Halsbury's Laws of England and some
earlier decisions which have been referred for treating the point as well
[
settled. These observations were made after examining the·claim on merits,
and in view of the fact that the plaintiff was known for his frequent
persistent and fruitless litigation proceedings, having commenced primarily
with. the motive of resentment. In spite of these strong observations in the
G judgment about the conduct and motive of the plaintiff the court did not
refuse to go into the points raised, for that reason alone. In our opinion
this decision can not persuade us to hold that the dismissal at the admission '
stage of the present petitions by the High Court, on the ground merely of
laches can be sustained, when the alleged usurpation of the public offices,
H including that of the Chief Minister of the State of Goa, continues.
I

.~

'fc K.G. JALMI v. SPEAKER [VERMA, J.] 839

Reference was made by Shri Nariman as well as Shri Ashok Desai A
to Rules 1 and 4 of vrder 53 of the Rules of Supreme Court and Section
30 of the Supreme Court Act, 1981 (England) wherein limitation is
-; prescribed for application for judicial review and delay in applying for
J y- relief is a ground for denying the relief, unless the Court considers that
there is good reason for extending the period of making the application. It
was urged that these provisions are substantially the same as the earlier
B
English Practice according to which, as held in Everett v. Griffiths (supra)
the order is not issued as of course, an'd the conduct and molives of the
applicant may be enquired into. Rderence was also made to R. v. Strat-
ford-on-Avon District Cmtncil and Anr., ex parte Jackson (1985) 3 All ER
769 which was followed by the House of Lords in Caswell and Another v. c
1 ·--\_ Dairy Produce Quota Tribua/ for England and Wales [1990) 2 WLR 1320.

" In our opinion, the position remains the same. Emphasis in these
decisions is on public interest and good administration, and the jurisdiction
of the Court to extend time in suitable cases for making such an applica-
D
tion. In Caswell, the House of Lords took into account the larger public
interest for the view that the interest of. good administration required
non-interference with the decision which was challenged after a lapse of a
considerable time, since any interference at that stage, when third 'party
.,(_ interests had also arisen, would be detrimental to good administration.
E
In our opinion the exercise of discretion by the court even where the

- application is delayed, is to be governed by the objective of promoting
public interest and good administration; and on that basis it cannot be said
that discretion would not be exercised in favour of interference where it is
necessary to prevent continuance of usurpation of office or perpetuation F
....... of an illegality.

We may also advert to a related aspect. Learned counsel for the
respondents were unable to dispute, that any other member of the public,
to whom the oblique motives and conduct alleged against the appellants in
::i the present case could not be attributed, c:Ould file such a writ petition even G
y now for the same relief, since the alleged usurpation of the office is
continuing, and this disability on the ground of oblique motives and con-
duct would not attach to him. This being so, the relief claimed by the
appellants in their writ. petitions filed in the High Court being in the nature
of a class action, without seeking any relief personal to them, should not H
840 SUPREME COURT REPORTS (1993) 2 S.C.R.

A have been dismissed merely on the ground of !aches. The motive or
conduct of the appellants, as alleged by the respondents, in such a situation
can be relevant only for denying them the costs even if their claim succeeds,
but it cannot be a justification to refuse to examine the merits of the
question raised therein, since that is a matter of public concern and relates
to the good governance of the State itself.
B
Shri R.K Garg submitted that !aches of the appellants can not
legitimise usurpation of office by Ravi S. Naik, Chopdekar and Bandekar;

C
and Shri Jethmalani submitted that manifest illegatlity will not be sustained
solely on the ground of !aches when it results in continuance· in a public
office of a person without lawful authority. The, fact that the situation
-
continues unaltered, since these persons continue to hold the public offices,
to which they are alleged to be .disentitled, is in our opinion sufficient to
hold that the writ petitions ought not to have been dismissed merely on the
ground of !aches at the admission stage, without examining the contention
on merits that these offices including that of the Chief Minister of the State,
D are being held by persons without any lawful authority. The dismissal of
the writ petitions by the High Court merely on this ground can not,
therefore, be sustained.

The further question now is of the availability of power of review in
E the Speaker under the Tenth Schedule.

POWER OF REVIEW

The challenge to the orders dated 7th and 8th March, 1991 made by -
the Acting Speaker under the purported exercise of power of review,
F setting aside the earlier orders of the Speaker disqualifying Ravi S. Naik,
Chopdekar and Bandekar under the Tenth Schedule, is made by the
appellants on the ground that the Speaker does not have any power of
review under the Tenth Schedule. It was stated in Patel Narshi Thakershi
and Ors. v. Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273, thus -
G "It is well settled that the power to review is not an
inherent power. It must be conferred by law either specifi-
cally or by necessary implication."

This position is not disputed before us. Admittedly, there is no
H express provision conferring the lJOWer of review on the Speaker in the
K.G. JALMI v. SPEAKER [VERMA, J.] 841
'
f~
Tenth Schedule. The only question therefore, is whether the Speaker acting A
as the authority under the Tenth Schedule has the power of review by
necessary implication, empowering him to set aside the earlier order of
disqualification made by him on merits.

'r"- On behalf of the appellants it was contended that such a power of
review in the Speaker can not be implied from the provisions in the Tenth B
Schedule, and the only remedy available to the aggrieved Member is by
judicial review of the order of disqualification. In reply it was contended
=- on behalf of the respondents, that the power of review inheres in the
Speaker under the Tenth Schedule, in view of the finality attaching to the
order made under.para 6 of the Tenth Schedule. It was submitted that this c
inherent. power of review in the Speaker must be read in the Tenth
·'\ Schedule, at least up to 12th November, 1991 when the Judgment in /(jhoto
H ol/oha11 was rendered declaring the availability of judicial review against
the Speaker's order of disqualification made under para 6 of the Tenth
Schedule. It was further submitted by learned counsel for the respondents,
that only a limited judicial review being available against the Speaker's
D
order of disqualification, as held by the majority in Kihoto Hol/ohOll, some
power of review inheres in the Speaker even thereafter to correct palpable
errors falling outside the limited scope of judicial review. It was then
submitted, that the defects in the orders of disqualification made by the
).._ Speaker in the present case, which were corrected by review, were such E
defect which come within the ambit of the limited power of review available
lo the Speaker in addition lo availability of judicial review ·as declared in

- Kilwto Hol/oha11. Both sides referred to the merits of the orders of dis-
qualification made by the Speaker but we refrain from adverting to this
aspect as indicated earlier, in view of the conclusion reached by us that the
F
Speaker has no power of review under the Tenth Schedule, and an order
.Jo..
' of disqualification made by him under para 6 is subject to correction only
by judicial review as held in Kihoto Hol/ohan. Accordingly, the alleged
defects would require examination by judicial review in the writ petitions
filed in the High Court challenging the orders of disqualification.
G
Shri Nariman contended that the power of review inheres in the
l' Speaker under the Tenth Schedule as a necessarv incident of his otherwise
plenary jurisdiction to decide the question ot disqualification. He sub-
mitted that according to the majority in Kilwto Hol/oha11 only 'limited
scope of judicial review' is available, and, therefore, the power of review H
~.

842 SUPREME COURT REPORTS (19'13) 2 S.C.R.
~
A inheres in the Speaker to review his own orders on grounds analogous to
those in Order 47, Rule 1, Code of Civil Procedure. In support of this
submission Shri Nariman placed reliance on the decisions in Shivdeo Singh
a11d Ors. v. State of Pu11jab and Ors., AIR 1963 SC 1909 and Grindlays Bank
Ltd. v. Central Government Industrial Tribunal and Ors. [1981) 2 SCR 341.
Another limb of Shri Nariman's submission is that the majority opinion in ""\"
B Kihoto Hol/ohan does not declare para 7 of the Tenth Schedule to be
unconstitutional from the inception, and Article 13 having no application

c
to a constitutional amendment, the existence of para 7 in the Tenth
Schedule till the judgment was rendered in Kihoto Hollohan on 12th
November, 1991 must be accepted, and the provisions in the Tenth
Schedule, including para 7 therein, must be examined for determining the
-
implied power of review in the Speaker till 12th November, 1991. On this
basis, it was submitted that the finality declared in para 6 of the Tenth --r··
Schedule coupled with the ouster of judicial review in para 7 re-enforces
existence of the implied power of review in the Speaker at least till 12th
November, 1991, prior to which the impugned orders of review were made
D
in the present case. A further submission made by Shri Narirnan was that
by virtue of para 6(2) read with para 8 of the Tenth Schedule, the general
rules of procedure as well as Rule 7(7) of the Members of the Goa
Legislative Assembly (Disqualification on ground of Defection) Rules,
1986 applied, under which the Speaker ordinarily has the power of review.
E In this connection, reference was made particularly to Rule 77 of the Rule >
of Procedure and Conduct of Business of the Goa Legislative Assembly,

-
regarding breach of privilege which enables the Speaker to reconsider his
earlier decision, and Rule 7(7) of the Members of the Goa Legislative
Assembly (Disqualification on grounds of defection) Rules, 1986, relating
F to the procedure. It was submitted that these general rules relating to
Speaker's power while dealing with a breach of privilege can be read to
~
confer. a11 express power of review.

The last limb of Shri Nariman's contention may be disposed of, at
the outset. There is no scope for reading into the Tenth Schedule any .of
G the powers of the Speaker which he otherwise has while functioning as the
Speaking in the House, to clothe him with any such power in his capacity
as the statutory authority functioning under the Tenth Schedule of the
'f
'
Constitution. This is well settled by the decisions of the Court relating to
Speaker's orders under the Tenth Schedule. Accordingly, any power of the
H Speaker, available to him while functioning in the House, is not to be
-f K.G. JALMI v. SPEAKER [VERMA, J.] 843

treated as his power or privilege as the authority under the Tenth Schedule. A

The majority opinion in Kihoto Ho//oha11 was pressed into service by
Shri Nariman as well as Shri Asliok Desai to support several aspects of
their submissions. We may now refer to that opinion.
,Y
B
In Kihoto Hollo/tan there was no difference between the majority and
minority opinions on the nature of finality attaching to the Speaker's order
of disqualification made under para 6 of the Tenth Schedule, and also that
para 7 therein was unconstitutional in view of the non-compliance of the
proviso to clause 2 pf Article 368 of the Constitution, by which judicial
review was sought to be excluded. The main difference in the two opinions c
was, that according to the majority opinion this defect resulted in the
-"\ constitution standing amended from the inception with insertion of the
Tenth Schedule minus para 7 therein, while according to the minority the
entire exercise of constitutional amendment was futile and an abortive
attempt to amend the constitution, since Para 7 was not severable. Accord-
D
ing to the minority vie,v, all decisions rendered by the several Speakers
under the Tenth Schedule were, therefore, nullity and liable to be ignored.
According to the majority view, para 7 of the Tenth Schedule being
unconstitutional and severable, the Tenth Schedule minus para 7 was
~ validly enacted and, therefore, the orders made by the Speaker under the
Tenth Schedule were not nullity but subject to judicial review. On the basis E
of ihe majority opinion, this Court has exercised the power of judicial

- review over the orders of disqualification made by the speakers from the
very inception of the Tenth Schedule, and the exercise of judicial review
has not been confined merely to the orders of disqualification made after
12th November, 1991 when the judgment in Kihoto Hol/olian was rendered. F
,... Venkatachaliah, J (as he then was) wrote the majority opinion and, there-
after, on this premise, exercised the power of judicial review o·ver orders
of disqualification made prior to 12.11.1991. The basic fallacy in the
submission made on behalf of the respondents that para 7 must be treated

~
as existing till 12th November, 1991 is that on that view there would be no
power of judicial review against an order of disqualification made by the G
Speaker prior to 12th November, 1991 since para 7 in express terms totally
l' excludes judicial review.

Accepting the submission of learned counsel for the respondents that
para 7 must be read in the Tenth Schedule till 12th November, 1991 when H
844 SUPREME COURT REPORTS [19931 2 S.C.R. -~
r
. the judgment in Kihoto Hol/ohan was rendered, for which submission they '
"' place reliance on the majority opinion in Kihoto Hol/ohan, would amount
to taking a view contrary to the decision in Kihoto Hol/ohan itself, as
indicated.

At one stage, Shri Nariman also attempted to read the majority ~
B opinion in Kihoto Hollohan as not expressly declaring p_ara 7 in the Tenth
Schedule as unconstitutional, adding that such a declaration was made only
in the minority opinion which declared the entire Tenth Schedule to be
unconstilutional. We are unable to read the majority opinion in this man-
ner. Any attempt to find support for the submissions of the responents, in
c the majority opinion in Kihoto Hollohan, is futile.
~-
The Constitution Bench decision in Shivdeo Singh and Ors. v. State
of Punjab and Ors. (supra) is distinguishable and of no assistance to the
respondents in the present case. That was a case, wherein the High Court
had exercised its power in a second writ petition filed Under Article 226 of
D
the Constitution by a person who was not made a party in the earlier writ
petition, the order made in which was adverse to him. This court held that
the second writ petition by such a person was maintainable, and the High
Court had not acted without jurisdiction in reviewing its previous order at
the instance of a person who was not a party to the previous writ proceed- ,>
E ings. That decision has no application in this situation.

Strong reliance was placed by Shri Nariman as well as Shri Ashok
Desai on the decision of a two Judge bench in Grindlays Bank Ltd. It was
submitted by learned counsel, that in the present case the defects in the
-
F orders of disqualification fell in the first of the two categories mentioned
I ;,
at page 347 (SCR), to which extent there is inherent power of review in
the Speaker. It may be mentioned that the decision in Patel Narshi 77wker-
shi & Oi'S. v. Pradyumansinghji Aljunsinghji, AIR 1970 SC 1273 is referred
and distinguished at page 347 SCR on the. facts of that case. In that decision
the question was, whether the Industrial Tribunal constituted under Section
G 7A of the Industrial Disputes Act, 1947 had the power to set aside an
exparte award made by it. It was held with the aid of Rule 24(b), Industrial 'f
Disputes (Central) Rules, 1957 that the Tribunal had the power of a civil
court under Order XVII of the Code of Civil Procedure relating to grant
of adjournments and therefore, as a necessary corollary the power under
H Order IX, Rule 13 was attracted to enable the Tribunal to set a,ide an ex
j K.G. JAl..MI v. SPEAKER [VERMA, J.] 845

parte award. In our opinion, the decision in Grindlays Bank Ltd., wherein A
certain statutory rules attracted the power under Order XVII read with
Order IX, Rule 13 of the Code of Civil Procedure in the Tribunal to set
aside an ex parte award, is clearly distinguishable.and is of no assistance
in the present case.
r
The power of review which, it is suggested by counsel for the respon: B
dents, inheres in the Speaker by necessary implication has to be found in
the provisions made in the Tenth Schedule alone, and not elsewhere. Para
__,._. 7 has .to be treated as non-existent in the Tenth Schedule from the very
inception, as earlier indicated. As held by the majority in Kihoto Hollohan,
judicial review is available against an order of disqualification made by the c
Speaker under para 6 of the Tenth Schedule, notwithstanding the finality
--\ mentioned therein. It is on account of the nature of finality attaching by
virtue of para 6, that the judicial review available against the Speaker's
order has been labelled as limited in para 110 (at page 711 of SCC) of the
decision in Kihoto Hollohan (1992] Supp 2 SCC 651, and the expression
has to be understood in that sense distinguished from the wide power in D
an appeal, and no more. As held in Kilwro Hollohan, the Speaker's order
is final being subject only to judicial review, according to the settled
parameters of the exercise of power of judicial review in such cases, which
it is not necessary to elaborate in the present context. The existence of
judicial review against the Speaker's order of disqualification made under E
para 6 is itself a strong indication to the contrary that there can be no

- inherent power of review in the Speaker, read in the Tenth Schedule by
necessary implication. The need for correction of errors in the Speaker's
order made under the Tenth Schedule is met by the availability of judicial.
review against the same, as held in Kihoto Hol/ohaiL
F
~
'- In our opinion there is no merit in the submission that the power of
review inheres in the Speaker .under the Tenth Schedule as a necessary
incident of his jurisdiction to decide the question of disqualification; or that
such a power existed till 12th November, 1991 when the decision in Kihoto
Ho//oha11 was rendered; or at least a limited power of review inheres in the G
Speaker to correct any palpable error outside the scope of judicial review.

CONSEQUENCE

On the above view taken by us, the orders dated 7th and 8th March,
1991 _made by the Acting Speaker in purported exercise of the power of H
846 \ SUPREME COURT REPORTS [1993) 2 S.C.R.

A review are liable to be declared nullity and to be ignored, with the result
that the order dated 13th December, 1990 disqualifying Chopedekar and
Bandekar and dated 15th February, 1991 disqualifying Ravi S.Naik as
Members of Goa Legislative Assembly would continue to operate.

Writ petition No.321 of 1990 filed by Chopdekar and Bandekar
B challenging the orders of their disqualification is pending in the High Court
wherein an interim order staying the operation of their orders of dis-
qualification is subsisting. Chopdekar and Bandekar can pursue that
remedy to challenge their disqualification and no further order is required
to be made by this Court for that purpose.
c However, writ petition No.48 of 1991 which was filed in the High
Court by Ravi S. Naik challenging his disqualification, wherein also an
interim order was made staying the operation of the order of his dis-
qualification, was not pressed by Ravi S.Naik after the order in purported
exercise of power of review was made in his favour on 8th March, 1991
D and, therefore, that writ petition was dismissed as not pressed on 22.4.1991.
The question is of the order, if any, required to be made by this Court in
this situation.

Shri Ram Jethmalani appearing for the appellants in C.A. No.1094/92
suggested that, in all fairness writ petition No.48 of 1991 shoukfbe revived
E in the High Court to enable Ravi S.Naik to pursue his remedy of seeking
judicial review against his disqualification. On the other hand, Shri R.K.
Garg, learned counsel for the appellant in Civil Appeal No.1096/92 op-
posed the making of such an order. Both the learned counsel, however.
submitted that the interim order of stay made therein would not revive even
--
F if that writ petition L' revived and the High Court wiH have to consider
afresh the question of making an interim order, at the behest of Ravi S.
Naik. On the other hand, Shri F .S. Nariman appearing for Ravi S. Naik in
both these appeals submitted that it would be just in the circumstances of
the case, to revive writ petition No.48 of 1991 for decision on merits by the
~ High Court and the interim order of stay should also enure to the benefit
J
of Ravi S. Naik during the pendency of the writ petition, more so when he
is the Chief Minister of the Stale and refusal of stay would result in
uncertainty in the State.

Having given aur anxious consideration to the matter we have no
H doubt that the fact to Ravi S. Naik being the Chief Minister of the Stale
K.G.JALMI v. SPEAKER [VERMA,J.] 847
'I
of Goa is a wholly irrelevant circumstance for this purpose. Alf the same A
an order which would be just and proper to make in the circumstances of
this case has to be made, taking into account also the fact that the law was
declared and came to be settled only by the decision of this Court in.Kihoto
Hol/ohan, after making of the orders of review by the Acting Speaker in
'1" the present case, where after writ petition No.48 of 1991 was dismissed as
B
.. not pressed. We have no doubt that Article 142 of the Constitution enables
us, if necessary, to enlarge the powers of this Court for making an order
which would be just in the facts and circumstanc~s of this case.

- In our opinion, it would be appropriate to revive writ petition No.48
of 1991 for hearing on merit by the High Court as suggested even by Shri c
Ram Jethmalani, and to also order interim stay of the operation of the
order of disqualification dated 15.2.1991 made by the Speaker, which was
~
the situation prevailing till that writ petition was dismissed as not pressed.
It is, however, necessary that writ petition No.48 of 1991 and also writ
petition .No.321 of 1990 should be heard and disposed of at the earliest, on
account of their expediency. D
~

RELIEF

Accordingly, we allow these appeals in the following manner :-
).,_ (1) The impugned orders of the High Court, dated 4.2.1992 dismiss- E
ing writ petition No.11 of 1992; dated 24.2.1992 dismissing writ petition
No.70 of 1992; and dated 4.2.1992 dismissing writ petition No.8 of 1992 are

- set aside;

(2) Writ petition Nos.11of1992, 70 of 1992 and 8 of 1992 are allowed
declaring that orders dated 7.3.1992 and 8.3.1992 made by the Acting F
.... Speaker in purported exercise of power of review are nullity and liable to
be ign.ored.

(3) Consequently, orders dated 13.12.1990 made by the Speaker
disqualifying Ratnakar Chopdekar and Sanjay Bandekar _continue to
G
operate and writ petition No.321 of 1990 pending in the High Court has to
be heard and decided on merits, in accordance with law;
1'
( 4) Similarly, order dated 15.2.1991 made by the Speaker disqualify-
irtg Ravi S._ Naik continues to operate and writ petition No.48 of 1991 filed
in the High Court by him is revived by setting aside the High Court's order H
1111
848 SUPREME COURT REPORTS (1993) 2 S.C.R. ~

A dated 24.2.1991 dismissing that writ petition as not pressed. The High
Court will proceed to decide that writ petition also on merits, in accord-
ance with law;

(5) The interim order staying the order of disqualification in writ
petition No.48 of 1991 is revived. However, the parties would be at liberty
B to apply to the High Court for modification or cancellation of the said
interim order or for any other interim relief or direction, if so advised;

(6) The High Court should hear and dispose of the writ petition
No.48 of 1991 itself on merits as expeditiously as possible, preferably by
C 30th April, 1993;

(7) Writ Petition No.321 of 1990 filed by Ratnakar M. Chopdekar ,._
and Sanjay Bandekar pending in the High Court be also heard and dis-
posed of as expeditiously as possible, preferably by 30th April, 1993.

(8) Parties are directed to appear at the Goa Bench of the Bombay
D High Court on 6th April, 1993, without any farther notice, for obtaining
further directions in this behalf.

(9) In the circumstances of the case, the parties will bear their own
costs.

T.N.A. Appeals allowed.