Holding

The Speaker’s disqualification orders are subject to judicial review for breaches of constitutional mandates and natural‑justice principles, and any order passed in disregard of a valid High Court stay is a nullity; consequently Naik’s disqualification was quashed while Bandekar and Chopdekar’s disqualification was upheld.

Summary

The case concerned disqualification of members of the Goa Legislative Assembly under Article 191(2) read with the Tenth Schedule. Bandekar and Chopdekar were disqualified for allegedly having voluntarily given up their MGP membership, while Naik was disqualified on similar grounds after claiming a split in the party that satisfied the one‑third requirement. The High Court had stayed the earlier disqualification orders, but the Speaker ignored the stay and passed a new order. The Supreme Court examined whether the Speaker’s orders are amenable to judicial review, whether procedural violations of the Disqualification Rules or breaches of natural‑justice principles invalidate the orders, and whether the stay order was binding. It held that the Speaker’s decisions are subject to judicial review for constitutional violations and that ignoring a valid stay makes the subsequent order a nullity. Consequently, Naik’s disqualification was set aside, while the disqualification of Bandekar and Chopdekar was upheld.

Issues considered

The extent of judicial review over a Speaker's disqualification order under the Tenth Schedule
Whether violation of the Disqualification Rules constitutes a ground for judicial review
Whether the Speaker's order violated principles of natural justice (insufficient time, reliance on extraneous material, denial of evidence)
Whether a High Court stay order is binding on the Speaker and the effect of ignoring it
Whether members subject to a stay order can be counted for the one‑third test under paragraph 3 of the Tenth Schedule
Whether a claim of ‘voluntarily giving up membership’ is equivalent to resignation

Legislation cited

Code of Civil Procedure, 1908
Constitution (Fifty‑second Amendment) Act, 1985
Constitution of Indias. Article 191(2), s. Tenth Schedule
Goa Legislative Assembly (Disqualification of Grounds of Defection) Rules, 1956
Special Reference No. 1 of 1964

Subjects

DefectionDisqualificationTenth ScheduleSpeakerNatural JusticeStay OrderJudicial ReviewPolitical PartyLegislative AssemblyBurden of Proof

Judgment

A RAVI S. NAIK AND SANJAY BANDEKAR AND ANR.
v.
UNION OF INDIA AND ORS.

FEBRUARY 9, 1994

.B [M.N. VENKATACHALIAH, CJ. AND S.C. AGRAWAL, J.]

Constitution of India, 1950 : Article 191(2)-Tenth Schedul~State
Legi.slature-Member-Defectiott-f'etition for disqualification of-Claim by
member that disqualification of defection was not applicable in view of para
C 3 of Tenth Schedule because there was split in the party and a new group was
constituted--Burden is on such member to prove requirements of para 3 of
Tenth Schedule-Members claim supported by a declaration-Genuineness
of signatures on declaration not disputed by members-Held constitution of
group was established-Computation of one third members as required by
D para 3 of Tenth Schedule-Exclusion by Speakers of members disqualified by
him but against which interim stay was granted by High Court-Held not
legal-Order passed by Speaker in disregard of stay order held nullity and
quashed.

Legislative assembly-Member-Disqualification order by Speake~
E Speaker drawing inference from newspaper reports and photographs--Allega-
tions not denied by members-Order held not vitiated-Expression "Volun-
tarily given up his membership''-Scope of-Held not synonymous with
resignation-Even in the absence of formal resignation inference as to volun-
tarily given up the membership may be drawn from the conduct of the
member.
F
Article 226-Writ jurisdiction-Power of High Court to pass interim
order--Interim order is binding until set aside by competent court.

Goa Legislative Assembly (Disqualification on Grounds of Defection)
G Rules, 1956: Rules 3, 4, 6(5 & 6) and 7(2) & (3).
Disqualification roles-Held procedural in natur~Violation of dis··
qualification rnle is i"egularity in procedure and does not amount to violation >-- ...
of constitutional mandat~Violation of mies does not afford a ground for
judicial review-Disqualification petition-Speaker granting two days' time
H instead of seven days to file reply-Member filing detailed reply but not
754
R.S. NAIK v. U.0.1. 755

__.--l denying allegations--Held time granted was not insufficient resulting in denial A
of adequate opportunity.

Judicial Review :

Disqualification order passed by Speaker of a legislative assembly under
Tenth Schedule of Constitution is subject to judicial review. B
Violation of Disqualification Rules frumed under para 8 of Tenth
Schedule is not subject to judicial review.

Administrative Law: Natural Justice-Principles of-Cannot be put in
strait jacket formula-Effect of non-compliance should be considered in the c
facts of each case.

By an order dated December 13, 1990 passed by the Speaker of Goa
Assembly appellants SB and RC were declared as disqualified from being
members of the Goa Legislative Assembly on the ground of defection under D
Article 191(2) read with paragraph 2(1)(a) of the Tenth Schedule to the
Constitution. Similarly, in the connected appeal also, the appellant RS was
disqualified by the Speaker vide his order dated February 15, 1991. Two
petitions were filed in the Bombay High Court challenging the orders
passed by the Speaker • one by SB and RC and the other by RS. In the
petition filed by SB and RC, the High Court passed an interim order dated E
December 14, 1990 staying the Disqualification order passed by the
Speaker. During the pendency of the petitions before the High Court the
Speaker, in exercise of his power of review set aside the disqualification
orders dated December 13, 1990 and February 15, 1991. The orders of
Speaker, passed in review, setting aside his earlier orders of disqualifica· F
tion were challenged before the High Court which dismissed the petitions
on the ground of laches. Agains~the judgment of the High Court, appeals
were filed in this Court. By its judgment in Dr. Kashinath G. Jalmi & Anr.
v. Speaker & Ors., [1993] 2 S.C.C. 703, this Court allowed the appeals
holding that the orders passed by the Speaker in exercise of its power of
review were nullity and directed the High Court to dispose the petitions G
on merits. Thereafter the High Court heard the matter on merits and by
its judgment dated May 14, 1993 upheld the orders of disqualification
passed by the Speakers and dismissed the petitions of the appellants.
Against the judgment of the High Court appeals were. preferred in this
Court. The case against SB and RC was that they were elected under the H
756 SUPREME COURT REPORTS [1994] 1 S.C.R.

A Maharashtra Gomantak Party (MGP) ticket but they voluntarily gave up
the membership of the MGP. The allegation against them was that before "·
and after the assembly session, both of them voluntarily accompanied the
Congress(I) MLAs to the Governor and told him that they do not support
the MGP leader any longer. J.. .support of this allegation copies of several
newspapers showing photos of the appellants with Congress(I) MLAs
B when they had met the Governor were relied on. The Speaker passed the
Disqualification order stating that the appellants, in their replies, havf' not
denied the allegations that they went to the Governor against MGP and
that although the appellants were present before him yet they did not come
forward to give any evidence.
c
The High Court upheld the Speaker's order and rejected the
appellant's contentions that (i) the order was passed in breach of the
constitutional mandate because there was contravention of the Goa Legis-
lative Assembly (Disqualification of Grounds of Defection) Rules 1956; (ii)
D there was violation of principle of natural justice because the Speaker
relied on extraneous matters or circumstances viz. the newspaper reports
showing photographs of the appellants with Congress(I) MLAs; and (iii)
no opportunity was given to the appellants to lead evidence.

In the petition filed against RS, it was alleged that he was elected on
E MGP ticket and was later sworn as Chief Minister but he voluntarily gave
up the membership of the original party MGP and thereby incurred
disqualification under Article 191(2) read with paragraph 2(a) of Tenth
Schedule. In his reply to the Speaker, the appellants claimed that there
was a split in the original MGP as a result of which eight members of the
F original party joined the newly constituted group represented by him; since
the MLAs who have disassociated from the original party constituted l/3rd
of the MLAs of original party, the disqualification on the ground of
defection was not applicable in view of para 3 of the Tenth Scht!dule. The
split was sought to be proved by a resolution bearing signatures of eight
MLAs which was submitted alongwith reply of the Speaker.
G
The Speaker passed the disqualification order holding that (i) the
split had not been proved because no intimation was given to him in accord-
ance with Rules 3 and 4 of the Disqualification Rules; (ii) the requirements
of paragraph 3 of Tenth Schedule were not fulfilled because the group of
H MLAs who disassociated from the original MGP did not constitute l/3rd of
R.S.NAIK v. U.0.1. 757

the MLAs of the original parly (which was 18 in number) inasmuch as two A
MLAs of the group viz. SB and RC have already been disqualified by him
under his orders dated December 13, 1990 and one other MLA was excluded
on the ground that he had disowned his signature on the declaration. The
Speaker in excluding the two MLAs did not give effect to the stay order
passed by the High Court on the ground that it was passed by the High
Court after the order of disqualification was passed by him. B
The High Court upheld the Disqualification order rejecting the
contentions of the appellants that (i) in view of the High Court's order
setting aside the disqualification of 2 MLAs, the Speaker was not right in
excluding the 2 members from the appellants' group; (ii) the letter written C
by one of the MLAs disowning his signature was relied on by Speaker
without affording opportunity to the appellant; (iii) the Parliament has
held that the Speaker's order cannot be a subject matter of court's
proceedings and his decision is final as far as Tenth Schedule of the
Constitution is concerned.
--+- D
In appeal to this Court it was contended on behalf of SB and RC
that (i) the petitions filed against them were liable to be dismissed for
non-compliance with Rules 6(5) and (6) and 7(2) and (3) of the Dis-
qualification Rules inasmuch as the petitions, which were not verified in
the manner laid down in the Code of Civil Procedure, did not contain a E
concise statement of the material facts on which the petitioner was relying
and the petitions were not accompanied by copies of the documentary
evidence; and (ii) the Disqualification order was passed by the Speaker in
violation of the Principles of Natural Justice becuase (a) the appellants
were given tw~ dayst time to file the reply instead of seven days as required
by Rule 7(3)(b); (b) the Speaker has relied on extraneous material viz. F
copies of newspapers and photographs; and (c) the appellants were denied
the opportunity to adduce their evidence before the Speaker.

On behalf of RS, it was contended that (i) in view of the stay order
passed by the High Court whereby the operation of Disqualification order G
against SB and RC was stayed the Speaker was not right in excluding the
said two members from the appellants group; (ii) the letter written by one
of the MLAs disowning his signatures on the split resolution should not
have been relied upon by the Speaker Without affording an opportunity to
the appellant; and (iii) the Speaker erred in holding that the number of
members in the group formed by appellant was not one-third of the H
758 SUPREME COURT REPORTS (1994) 1 S.C.R.

.A original party.

Dismissing the appeals of SB and RC and allowing the appeal of RS,
this Court

HELD : In CA No. 3309 of 1993 :
B
1. The appellants have failed to make out a case for interference with
th,e Disqualification order dated December 13, 1990 passed by the Speaker.
[780-F]
2. Paragraph 2(1)(a) of the Tenth Sechedule provides for dis-
c qualification of a member of a House belonging to a political party "if he
bas voluntarily given up his membership of such political party". The
words "voluntarily given up his membership" are not synonymous with
"resignation" and have a wider connotation. A person may voluntarily give
up his membership of a political party even though be has not tendered
D his resignation from the membership of that party. Even in the absence of
a formal resignation from membership an inference can be drawn from
the conduct of a member that he has voluntarily given up his membership
of the political party to which he belongs. [770-G-H, 771-A]

3. The Disqualification Rules have been framed to regulate the
E 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. They 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
F paragraph 6 of the Tenth Schedule. Moreover, the field of judicial review
in respect of the orders passed by the Speaker under sub-paragraph (1)
of paragraph 6 is confined to breaches of the constitutional mandates mala
fides, non-compliance with Rules of Natural Justice and perversity. It
cannot be said that the violation of the Disqualification Rules amounts to
G violation of constitutional mandates. Doing so 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 pf the Constitution. They cannot, therefore, be
H regarded as constitutional mandates and any violation of these Rules does
R.S. NAIK v. U.0.1. 759

not afford a ground for judicial review of the order of the Speaker in view A
of th~ fi.;ality clause contained in sub-paragraph (1) of paragraph 6 of the
Tenth Schedule. (776-D-H]

Kihoto Hollohan v. Zachillu & Ors., (1992) Supp. 2 S.C.C. 651,.relied
on.
B
4. In the circumstances of the case it cannot be said that the
impugned order of disqualification was passed by the Speaker in violation
of the principles of natural justice. (780-E]

5. An order of an authority exercising judicial or quasi-judicial C
functions passed in violation of the principles of natural justice is proce-
durally ultra vires and, therefore, suffers from a jurisdictional error. That
is the reason why in spite of the finality imparted to the decision of the
Speakers/Chairman by paragraph 6(1) of the Tenth Schedule such a
decision is subject to judicial review on the ground of non- compliance with
rules of natural justice. But while applying the prineiples of natural I?
justice, it must be borne in mind that "they are not immutable but flexible"
and they are not cast in a rigid mould and they cannot be put in a legal
strait-jacket. Whether the requirements of natural justice have been com-
plied with or not has to be considered in the context of the facts and
circumstances of a particular case. (777-E-G] E
Smt. Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621; Union
of India v. Tulsi Ram, (1985) Supp. 2 S.C.R. 131; Mallocha v. Aberdeen
Corporation, (1971) 2 All E.R. 1278 and A.M. Allision v. B.L. Sen, (1957)
S.C.R. 359, referred to.
F
H.W.R. Wade : Administrative Law, 6th Edn. p.530 and Clive Lewis:
Judicial Remedies in Public Law (1992) p. 290, referred to.

6. It is no doubt true that under Rule 7(3)(b) of the disqualification
Rules, it has been provided that the member concerned can forward his
comments in writing .on the petitions within seven days of the receipt of G
the copies of the petition and the annexures thereto and in the instant case
the appellants were given only two days time for submitting their replies.
The appellants, however, did submit their replies to the petitions within
the said period and the said replies were quite detailed. Having regard to
the fact that there was no denial by the appellants of the allegation in the H
760 SUPREME COURT REPORTS [1994] 1 S.C.R.

A petitions about their having met the Governor in the company of other
Congress(I) MLAs, it cannot be said that the insufficient time given for
submitting the reply has resulted in denial of adequate opportunity to the
appellants to controvert the allegations. (779-D-F]

7. The High Court has rightly pointed out that the Speaker, in
B referring to the photographs was drawing an inference about a fact which
had not-been denied by the appellants themselves, viz., that they had met
the Governor along with Congress(I) MLAs etc. The talk between the
Speaker and the Governor also refers to ttie same fact. In view of the
absence of a denial by the appellants of the averment that they had met
c the Governor the reference to the newspaper reports and to the talk which
Speaker had with the Governor, in the impugned order of disqualification,
does not introduce an infirmity which would vitiate the said order as being
passed in violation of the principles of natural justice. (779-H, 780-A, CJ

8. The appellants were the best persons who could refute the allega-
D tions made in the petitions. They, however, failed to do so. Therefore, the
grievance that the appellants have been denied the opportunity to adduce +-
the evidence is also without substance. (780-C, E]

In CA No. 2904 of .1993.
E
1. The order dated February 15, 1991, passed by the Speaker was in
violation of the constitutional mandate contained in paragraph 3 of the
Tenth Schedule to the Constitution and is liable to be quashed. (793-B]

2. Paragraph 2 of the Tenth Schedule provides for disqualification
F on the ground of defection if the conditions laid down therein are fulfilled
and paragraph 3 of the said Schedule avoids such disqualifications in case
of split The burden to prove the requirements of paragraph 2 is on the
person who claims that a member has incurred the disqualification and
the burden to prove the requirements of paragraph 3 is on the member
G who claims that there has been a split in his original political party and
by virtue of said split the disqualification under paragraph 2 is not
attracted. (787-C-D]

3. In the present case the appellant has not disputed that he has
given up his membership of his original political party but he has claimed
H · that there has been a split in the said party. Therefore, the burden lay on
R.S. NAIK v. U.0.1. 761

him to prove that the alleged split satisfies the requirements of paragraph A
3. The first requirement of para 3 was satisfied because the appellant has
made such a claim. (787-E, G]

4. As to whether there was a split or not has to be determined by the
Speaker on the basis of the material placed before hiin. In the present case
the split was sought to be proved by the Declaration whereby eight MLAs B
belonging to the MGP declared that they has constituted themselves into
a group represented by the appellant. The genuineness of the signatures
on the said declaration was J?ot disputed before the Speaker. Disowning of
signature by one MLA may have a bearing on the number of members
constituting the group. But the fact that a group was constituted is C
established by the said Declaration. (788-F, H, 789-A]

5. The Speaker's views that the split had not been proved because no
intimation about the split has been given to him in accordance with Rules
3 and 4 of the Disqualification Rules cannot be endorsed. Rule 3 requires D
--+ the information in respect of matters specified in Clauses (a), (b) and (c)
of sub-rule (1) to be furnished in the prescribed form to the Speaker by
the leader of the legislature party within 30 days after the first sitting of
the House or where such legislature is formed after the first sitting, within
30 days after its formation. Rule 4 relates to information to be furnished
by every member to the Secretary of the Assembly in the prescribed form. E
In respect of a member who has taken his seat in the House before the
date of commencement of the Disqualification Rules, the information is
required to be furnished within 30 days from such date. In respect of a
member who takes his seat in the House after the commencement of the
Disqualification Rules such information has to be furnished before making F
and subscribing an oath or affirmation under Article 188 of the Constitu-
tion and taking his seat in the House. Rule 4 has no application in the
present case because the stage for furnishing the required information had
passed long back when the members made and subscribed to oath and
affirmation after their election in 1989. Rule 3 also comes into play after
the split and the failure on the part of the leader of the group that has G
been constituted as a result of the split does not mean that there bas been
no split. (788-B-E]

6. In order to fulfil the second requirement of paragraph 8 of the
Tenth Schedule appellants group should consist of not less than six H
762 SUPREME COURT REPORTS [1994] 1 S.C.R.

A members of the legislature party which was eighteen in number. If the two
excluded members whose exclusion was not legal, are included within the
group of appellants, then it is not disputed that the number of members
in the group was more than one third of the legislature party ofMGP. This
would be so even if the member who disowned his signature was excluded
B because the total number of members in the group of appellant would be
seven and the number of members of the legislature party ofMGP required
for the purpose of a split under paragraph 3 of the Tenth Schedule was
six. (787-H, 788-A, 792-H, 793-A]

7. The effect of the stay of the operation of the order of disqualifica-
C lion dated December 13, 1990 was that with effect from December 14, 1990
the Declaration that SB and RC were disqualified from being members of
Goa Legislative Assembly under order dated December 13, 1990 was not
operative and on December 24, 1990, the daie of the alleged split, it could
not be said that they were not members of Goa Legislative Assembly.
D In view of the stay order passed by the High Court, the Speaker while
passing the order dated February 15, 1991, could not have proceeded
on the basis that SB and RC stood disqualified under his order dated
December 13, 1990 and they could not be included in the group of
appellant for the purpose of ascertaining whether the said group consisted
E one third members of the Legislature party of MGP, the original political
party. The Speaker was bound by the stay order passed by the High Court
and any action taken by him in disregard of the said stay order was a
nullity. (789-F, 792-G, 791-C]

F Mu/raj v. Murti Raghonathji Maharaj, (1967) 3 S.C.R. 84 and State of
Orissa v. Madan Gopal Rungta, (1952) S.C.R. 28, referred to.

8. The action of Speaker in ignoring the stay order passed by the
High Court while passing the order dated February 15, 1991 cannot be
G condoned on the view that in the absence of the decision of this Court it
was open for the Speaker to proceed on his own interpretation of para·
graphs 6 and 7 of the Tenth Schedule and ignore the stay order passed by
the High Court. The decision of this Court in Kihoto Hollohan case
declares the law as it was on the date of the coming into force of the
H Constitution (Fifty Second) Amendment Act, 1985. (791-G-H, 792-A]
R.S.NAIK v. U.0.1. 763

Kihoto Hollohan v. Zachillhu & Ors., (1992] Supp. 2 S.C.C. 651, A
referred to.

9. The reason given by the Speaker that Parliamnet had held that
the Speaker's order cannot be a subject matter of court proceedings and
his decision is final as far as Tenth Schedule of the Constitution is
concerned, is unsustainable in law. As to whether the order of the Speaker B
could be a subject matter of court proceedings and whether his decision
was final were questions involving the interpretation of the provisions
contained in Tenth Schedule to the Constitution. On the date of the
passing of the stay order dated December 14, 1990, the said questions were
pending consideration before this Court. In the absence of an authoritative C
pronouncement by this Court the stay order passed by the High Court
could not be ignored by the Speaker on the view that his order could not
be a subject matter of court proceedings and his decision was final.
[789-H, 790-A-B]
'
10. An order, even though interim in nature, is binding till it is set D
aside by a compebmt court and it cannot be ignored on the ground that
the Court which passed the order had no jurisdiction to pass the same.
Moreover the stay order was passed by the High Court which is a Superior
Court of Record and "in the case of a superior Court of Record, it is for
the court to considt:r whether any matter falls within its jurisdiction or E
not. Unlike a court of limited jurisdiction, the superior court is entitled to
determine for itself questions about its own jurisdiction". [790-B-D]

Special Referer.Jce No. 1 of 1964, (1965] 1 S.C.R. 413, referred to.

11. It is true that an interim order is issued in aid of or ancillary to the F
main relief and not in derogation of the main relief. The stay order passed
by the High Court on December 14, 1990 staying the operation of the Dis-
qualification order dated December 13, 1990 passed by the Speaker had
been issued in aid of and ancillary to the main relief in the writ which was for
quashing of the Disqualification order. The fact that the writ petition was G
ultimately dismissed and the impugned order passed by the Speaker was
upheld by the High Court does not mean that the High Court had com-
mitted any error in passing the interim order. The dismissal of the Writ
petition at the final stage does not confer validity on the action which was
taken by the Speaker in passing the order disqualifying the appellant in
disregard of the stay order passed by the High Court. [792-D-FJ H
764 SUPREME COURT REPORTS [1994) 1 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 29u4 of
1993 etc.

From the Judgment and Order dated 14.5.93 of the Bombay High
Court in W.P. No. 48 of 1991.

B AK. Sen, Uday Sinha, Bhavani Shankar, V. Gadnis and Shiv K. Suri
for the Appellant in C.A. No. 3309/93.

Soli J. Sorabjee, Sunil Dogra, Arvind Sharma, M.N. Raikar for P.H. ~
Parekh for the Appellant in C.A. No. 2904/93

C R.K. Garg and S. Muralidhar for the Respondents.

The.Judgment of the Court was delivered by

S.C. AGRAWAL, J. 1. These appeals are directed against the judg-
ment of the High Court of Bombay, Panaji Bench dated May 14, 1993 in
D Writ Petitions Nos. 48 of 1991 and 321 of 1990. They raise questions
relating to disqualification of a Member of the State Legislature under
Article 191(2) read with Tenth Schedule to the Constitution.

2. Elections for the Goa Legislative Assemble were held in Novem-
ber, 1989. The Assembly is composed of 40 members. After the elections
E the position of the parties was as under :

Congress (I) 20

Maharashtrawadi Gomantak Party (MGP) 18

F Independents 2

3. With the support of one independent member, the Congress (I)
formed the Government. After a short time seven Members left the Con-
gress (I) and formed the Goan People's Party (GPP). GPP and MGP
G formed a coalition Government under the banner of Progressive
Democratic Front (PDF). At first Churchill Alemao became the Chief
Minister but later on Dr. Luis Proto Barbosa was sworn in as the Chief
Ministe~. On December 4, 1990, MGP withdrew its support to the PDF
Government and thereupon on December 6, 1990, a notification was issued
summoning the Assembly on December 10, 1990 and the Chief Minister,
H Dr. Barbosa, was required to seek a vote of Confidence. Before the
R.S.NAIK v. U.0.1. (AGRAWAL,J.) 765

Assembly could meet Dr. Barbosa tendered his resignation as the Chief A
Minister on December 10, 1990 and the same was accepted. On December
10, 1990, Dr. Wilford D'Souza, leader of the Congress (I) Legislature party
staked his claim to form the Governnient. He claimed the support of 20
Members consisting of 13 Members of the Congress (I), 4 Members of
GPP and 2 members of MGP, who would form a common front known as
the Congress Democratic Front (CDF). Two Members of MGP, who were B
included in the CDF, were Sanjay Bandekar and Ratnakar Chopdekar,
appellants in CA.No. 3309· of 1993. Ramakant Khalap, who was the leader
of the PDF claimed support of 16 Members of MGP and three Members
who were formerly with GPP. The Governor submitted his report dated
December 11, 1990 and taking into consideration the said report as well as C
other information received by him, the President of India issued a
Proclamation dated December 14, 1990 under Article 356 of the Constitu-
tion whereby the President's Rule was imposed in the State and the
Legislative Assembly was suspended.

D
-+ 4. In the meanwhile, on December 10, 1990, Ramakant Khalap filed
two separate petitions under Article 191(2) the Constitution before the
Speaker of the State Legislative Assembly whereby he sought that both
Bandekar and Chopdekar be disqualified as Members of the State Legis-
lature on the ground of defection under Article 191(2) read with paragraph
2(i)(a) and 2(i)(b) of the Tenth Schedu!.e to the Constitution. By order E
dated December 13, 1990, the Speaker Shri Surendra Vir Sirsat, declared
both these appellants as disqualified from being members of the Goa
Legislative Assembly under Article 191(2) of the Constitution on the
ground of defection as set out in Paragraph 2{i){a) and 2(i)(b) of the Tenth
Schedule to the Constitution. Both these Members filed a writ petition F
{Writ Petition No. 321 of 1990) in the High Court on December 13, 1990.
The said writ Petition was amended on December 14, 1990 to incorporate
a challenge to the order dated December 13, 1990 passed by the Speaker.
In the said petition an interim order was passed by the High Court staying
the operation of the order dated December 13, 1990 with regard to
disqualification of the said Members. G

5. On January 25, 1991, the Proclamation with regard to the
President's Rule was revoked and Ravi S. Naik, appellant in C.A. No. 2904
of 1993, was sworn in as the Chief Minister. On January 25, 1991 one Dr.
Kashinath G. Jhalmi belonging to the MGP filed a petition before the H
·{
766 SUPREME COURT REPORTS [1994] 1 S.C.R.

A Speaker for disqualification of Naik on the ground of defection under
Article 191(2) read with Para 2(i)(a) of the Tenth Schedule to the Con-
stitution. On the said petition the Speaker, Shri Sirsat, passed an order
dated February 15, 1991 declaring Naik as disqualified from being a
Member of the Goa Legislative Assembly under Article 191(2) of the
Constitution on the ground of defection as set out in Paragraph 2(i)(a) of
B the Tenth Schedule to the Constitution. Naik filed a writ petition (Writ
Petition No. 48 of ::..991) in the Bombay High Court, Panaji Bench to
challenge the said order disqualification dated February 15, 1991.

6. While the aforesaid writ petitions were pending in the High Court
C Shri Sirsat was removed from the office of Speaker and the Dy. Speaker
begun functioning as the Speaker in his place. Bandekar and Chopdekar
filed applications for review of the order dated December 13, 1990 with
regard to their disqualification and the said review applications were
allowed by the Dy. Speaker functioning as Speaker by his order dated
D March 7, 1991 and order dated December 13, 1990 disqualifying Bandekar
and Chopdekar was set aside. Ramakant D. Khalap filed a writ petition
(Writ Petition No. 8 of 1992) before the High Court of Bombay, Panaji
Bench, Goa challenging the said order of review dated March 7, 1991. The
said writ petition was dismissed on the ground of laches by the High Court
on February 4, 1992. C.A. No. 1095 of 199lwas filed in this Court against
E the said judgment of the High Court. similarly Naik filed an application
for review of the order dated February 15, 1991 which was allowed by the
Dy. Speaker functioning as Speaker by order dated March 8, 1991. Writ
Petition No. 11/92 was filed by Dr. Jhalmi and Ramakant Khalap in the
High Court challenging the said order of review dated March 8, 1991
F passed by the Acting Speaker and the said writ petition was dismissed by
the High Court on the ground of laches by order dated February 4, 1992.
C.A. No. 1094 of 1992 was filed in this court against the said order of the
High Court. Another writ petition (No. 70 of 1992) was filed by Churcill
Alemao against the said order of the Acting Speaker dated March 8, 1991
G which was also dismissed by the High Court by order dated February 15,
1991 on the ground of laches and C.A. No. 1096 of 1992 was filed by
Churchill Alemao in this Court against the said order of the High Court.
All the three appeals (C.A. No. 1094-96 of 1992) were allowed by this
Court by judgment dated March 31, 1993 Dr. Kashinath G. Jalmi and Anr.
v. Speaker & Ors., [1993] 2 SCC 703. By the said judgment, this Court set
H aside the impugned orders of the High Court dated February 4, 1992,
R.S. NAIK v. U.O.I. (AGRAWAL,J.) 767

dismissing Writ Petitions Nos. 11 and 8 of 1992 and the order of the High A
Court dated February 24, 1992, dismissing Writ Petition No.70of1992 and
allowing the said writ petitions this Court has declared that orders dated
March 7, 1992 and March 8, 1992 made by the Acting Speaker in purported
exercise of the power of review are nullity and liable to be ignored.·It was
held that the orders dated December 13, 1990 passed by the Speaker B
disqualifying Chopdekar and Bandekar and the order dated February 15,
1991 passed by the Speaker disqualifying Naik continue to operate and that
writ petition No. 321 of 1990 filed by Bandekar and Chopdekar and writ
petition No. 48 of 1991 filed by Naik would stand revived and the same
would be disposed of by the High Court on merits. Thereafter the High
Court heard the two writ petitions on merits and by judgment dated May C
14, 1993 both the writ petitions have been dismissed. Hence these appeals.

7. We propose to deal with the appeals separately because the
questions involved are not identical, but before we do so, we will briefly
refer to the provisions of the Tenth Schedule to the Constitution and the D
decision of this Court in Kihoto Hollohan v. Zachillhu & Ors., (1992) Supp.
2 SCC 651. The Tenth Schedule was introduced in the Constitution by the
Constitution (Fifty-second Amendment) Act, 1985. As stated in the State-
ment of Objects and Reasons, the said amendment was introduced to
combat the evil of political defections. It has been stated :
E
"The evil of political defections has been a matter of
national concern. If it is not combated, it is likely to
undermine the very foundations of our democracy and the
principles which sustain it. With this object, an assurance
was given in the Address by the President to Parliament F
that the Government intended to introduce in the current
session of Parliament an anti-defection Bill. This Bill is
meant for outlawing defection and fulfilling the above
assurance."

8. The provisions of the Tenth Schedule apply to members of either G
House of Parliament or the State Legislative Assembly or, as the case may
be, either House of the Legislature of a State. Paragraph 2 of the Tenth
Schedule makes provision for disqualification on the ground of defection.
Sub-paragraph (1) deals with a member belonging to a political party. It
provides for disqualification in two situations, viz., (i) if he has voluntarily H
768 SUPREME COURT REPORTS [1994) 1 S.C.R.

A given up his membership of such political party; and (ii) if he votes or
abstains from voting in such House contrary to any direction issued by the
political party to which he belongs or by any person or authority authorised
by it in this behalf, without obtaining, in either case, the prior permission
of such political party, person or authority, and such voting or abstention
B has not been condoned by such political party, person or authority within
fifteen days from the date of such voting or abstention. Paragraph 3
removes the bar of disqualification in case of split in a political party
provided the group representing a faction which has arisen as a result of ~i.
split consists of not less than one third of the members of such legislature
party. Paragraph 4 removes the bar of disqualification on the ground of
C defection in a case of merger of a political party with another political
party. In sub-paragraph (1) of paragraph 6 the question as to whether a
member of a House has become subject to disqualification under the
Schedule is required to be referred for the decision of the Chairman or,
as the case may be, the Speaker of such House and his decision shall be
D final. Under sub-paragraph (2) of paragraph 6, all proceedings under
sub-paragraph (1) of paragraph 6 in relation to any question as to dis- +--
qualification of a member of a House under the Schedule are to be deemed
to be proceedings in Parliament within the meaning of Article 122 or, as
the case may be, proceedings in the Legislature of a State within the
meaning of Article 212. Paragraph 7 bars the jurisdiction of all courts in
E respect of any matter connected with the disqualification of a member of
a House under the Schedule. Paragraph 8 empowers the Chairman or the
Speaker of a House to make rules for giving effect to the provisions of the
Schedule and such Rules may provide for matters specified in clauses (a)
to (d) of sub-paragraph (1).
F
9. The constitutional validity of the provisions contained in the Tenth
Schedule came up for consideration before a Constitution Bench of this
Court in Kihoto Hollohan v. Zachillhu & Ors., (supra). The Court was
unanimous in holding that paragraph 7 completely excludes jurisdiction of
all courts including the Supreme Court under Article 136 and High Courts
G under Articles 226 and 227 in respect of any matter connected with the
disqualification of the member of a House and the Bill introducing the said
amendment required ratification by the State Legislatures under the
poviso to Article 368(2) of the Constitution and th~t no such ratification
was obtained for the Bill. There was, however, difference of opinion on the
H ·effect of such non-ratification of the Bill. The nfajority view was that
RS.NAIK v. U.0.1.(AGRAWAL,J.] 769

paragraph 7 alone attracts the proviso to Article 368 and the rest of the A
provisions of the Bill do .not require such ratification and since paragraph
7 is severable from the rest of the provisions, paragraph 7 only was
unconstitutional and that the rest of the provisions of the Tenth Schedule
cannot be struck down as unconstitutional on the ground that the Bill had
not been ratified by one-half of the State Legislatures before it was B
presented to the Presid.ent for his assent. The minority view, however, was
that the entire Bill required prior ratification by State Legislatures without
-' ~ which the assent of the president became non-est and that the question of
severability of paragraph 7 from the rest of the provisions does not arise
and further that paragraph 7 was not severable from the rest of the
provisions of the Bill. Since the validity of the rest of the provisions, C
excluding paragraph 7, have been upheld by the majority, the provisions of
paragraph 6 have been construed in the majority judgment and it has been
held:

"That the Tenth Schedule does not, in providing for an
additional grant (sic ground) for disqualification and for
D
adjudiciation of disputed disqualifications, seek to create
a non-justiciable constitutional area. The power to resolve
such disputes vested in the Speaker or Chairman is a
judicial power.
E
That Paragraph 6(1) of the Tenth Schedule, to the extent
it seeks to impart finality to the decision of the
Speakers/Chairmen is valid. But the concept of statutory
finality embodied in Paragraph 6(1) does not detract from
or abrogate judicial review under Articles 36, 226 and 227 F
of the Constitution insofar as infirmities based on viola-
tions of constitutional mandates, mala fides, non-com-
pliance with Rules of Natural Justice and perversity, are
concerned.

That the deeming provision in Paragraph 6(2) of the Tenth G
Schedule attracts an immunity analogous to that in Ar-
ticles 122(1) and 212(1) of the Constitution as undimtood
and explained in Keshav Singh [1%5] 1 SCR 413, case to
protect the validity of proceedings from mere ir-
regularities of procedure. The deeming provision, having H
770 SUPREME COURT REPORTS [1994) 1 S.C.R.

A regard to the words 'be deemed to be proceedings in
Parliament' or 'proctedings in the legislature of a State'
confines the scope of the fiction accordingly.

The Speakers/Chairmen while exercising powers and dis-
charging functions under the Tenth Schedule act as
B Tribunal adjudicating rights and obligations under the
Tenth Sch~dule and their decisions in that capacity are
amenable to judicial review.

However, having regard to the Constitutional Schedule in
the Tenth Schedule, judicial review should not cover any
c stage prior to the making of a decision by the
Speakers/Chairmen. Having regard to the constitutional
intendment and the status of the repository of the ad-
judicatory power, no quia timet actions are permissible,
the only exception for any interlocutory interference being
D cases of interlocutory disqualifications or suspensions
which may have grave, immediate and irreversible reper-
cussions and consequence." (pp.711-712)

We would now proceed to deal with the appeals.
E CA. No. 3309/1993 :

10. This appeal has been filed by Bandekar and Chopdekar who were
elected to the Goa Legislative Assembly under the ticket of MGP. They
have been disqualified from membership of the Assembly under order of
= F the Speaker dated December 13, 1992 on the ground of defection under
Paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the judgment
of the High Court it appears that disqualification on the ground of Para-
graph 2(1)(b) was not pressed on behalf of the contesting respondent and
disqualification was sought on the ground of Paragraph 2(1)(a) only. The
said Paragraph provides for disqualification of a member of a House
G belonging to a political party "if he has voluntarily given up his membership
of such political party". The words "voluntarily given up his membership" )-
are not synonymous with "resignation" and have a wider connotation. A
person may voluntarily give up his mem1'ership of a political party even
though he has not tendered his resignation from the membership of that
H party. Even in the absence of a formal resignation from membership an
RS.NAIK v. U.0.1. [AGRAWAL,J.] 771

inference can be drawn from the conduct of a member that he has A
voluntarily given up his membership of the political party to which he
belongs.

11. The petitions that were filed by Ramakant D. Khalap for dis-
qualification of both these appellants are identical. The following aver-
ments were made with regard to disqualification on ground of defection B
under paragraph 2(1)(a) of the Tenth Schedule as contained in paragraph
11 of the Said petitions :

"The petitioner says and submits that both before the
Assembly Session and also after the Assembly Session, the
respondent has voluntarily accompanied Dr. Luis Proto
c
Barbosa to the Governor and has told the Governor that
he does not support the MGP any longer. He had also
made it known to the public that he has voluntarily
resigned from the membership of the MGP. The respon-
dent has thereby voluntarily given up the membership of D
the MGP. He has in the circumstances for that reason also
incurred disqualification under Article 191(2) read with
para 2(1)(a) of the 10th Schedule of the Constitution of
India."
E
12. The replies that were filed by both the appellants were also
identical. In the said replies it was stated :

"Factually I have not given up the membership of the MGP
voluntarily or otherwise. I still continue to be a member
of the said party and in fact no document has been F
produced by the complainant and nothing has been dis-
closed to show that I have resigned from the membership
of the party''.

13. The reply to para 11 is as follows :
G
"....... the mere fact that I am accompanying Mr. Barbosa
does not entail my disqualification, which I do not accept
that I told His Excellency the Governor that I do not
support the Maharashtrawadi Gomantak Party and per-
haps much more devoted than Mr. Khalap. I also den)' H
772 SUPREME COURT REPORTS [1994] 1 S.C.R.

A emphatically that I made it know to any body that I had
voluntarily resigned from the membership of the
Maharashtrawadi Gomantak Party. You know very well
Sir, that I have been allotted a meeting as a member of
the Maharashtrawadi Gomantak party and I have not
asked any change in the seating on account of the fact that
B I have resigned from the party. In fact the complainant
has not produced as he could not produce any documents
to establish the facts that I have resigned, resignation from
the membership could only be evidenced by a written
document. The burden is on the part of the complainant
c to establish that fact. In the absence of it the complaint
should be summarily dismissed. Contents of para 11 which
are not specifically admitted are denied."

14. The Speaker, in his order dated December 13, 1990, has ob-
served:
D
"Dr. Zalmi produced before me copies of several news-
papers showing photos of the two MLAs with Congress
(I) MLA and Dr. :aarbosa etc. when they had met the
Governor, with Dr. Wilfred D'Souza who had taken them
E to show that he had the support of 20 MLAs. This fact is
well known in Goa and the Governor himself has admitted
it. Dr. Zalmi said that both the MLAs have given up the
membership of their political party and have said so open-
ly to him and others.

F The reply filed by the two MLAs does not deny the fact
that they went to the Governor against the Maharashtra-
wadi Gomantak Party.

The Advocate appearing for the MLAs said that he
wanted to lead evidence. But, although both the MLAs
G were present before me, their Advocate did not make
them give evidence. They did not deny that they supported
Dr. Wilfred D'Souza in his effort to form Congress (I)
Govt. and went with him to the Governor as part of the
20 MLAs. They could not do so because it is a fact of
H common knowledge all over Goa that these two MLAs
R.S. NAIK v. U.0.1. [AGRAWAL,J.) 773

have left their political party. A

I am satisfied that by their conduct, actions and speech
they have voluntarily given up the membership of the
MGP."

15. The High Court was of the view that in view of their conduct the
B
appellants were not entitled to invoke the discretionary remedy of writ of
certiorari. In this regard the High Court has pointed out that the assertion
by the appellants in the writ petition that they were in Bombay on Decem-
ber 9, 1990 is a brazen lie since the report of the Governor dated December
11, 1990 made to the President of India (which has been placed on record C
by Khalip with his affidavit) refers to the formation of the Congress
Democratic Flont by resolution adopted at Panaji on December 9 1990
and the said rei.olution which was Annexed I to the said report contained
the signatures of the appellants. The High Court has also observed that the
statement in the petition that the appellants are still members of the parent D
•+- party is false and suppression of truth inasmuch as they allowed this
assertion to continue when, in effect, as from January, 1991, they joined
the faction of Naik and became ministers in his Cabinet and they continue
to be the ministers.

16. The High Court has also examined the matter on merits and has E
found that the order dated De~mber 13, 1990 passed by the Speaker does
not suffer from any infirmity which may justify limited judicial review in
accordance with the decision in Kihoto Hollohan's case (supra). The High
"'r -
Court has rejected the contention that the said order was passed in breach
of the constit~tional mandate for the reason that there was contravention p
of the Goa Legislative Assembly (Disqualification on Grounds of Defec-
tion) Rules, 1956, hereinafter referred to as 'the Disqualification Rules',
made by the Speaker under paragraph 8 of the Tenth Schedule. The High
Court was also of the view that the Disqualification Rules made by the
Speaker could not be held to be part of Constitutional mandate and that
they are only to regulate the procedure and that the substantive power or G
authority is given in paragraph 6 of the Tenth Schedule. According to the
High Court violation of Disqualification Rules would only constitute an
irregularity in procedure which is protected by paragraph 6(2) of the Tenth
Schedule. The High Court also rejected the contention that there was
violation of the principles of natural justice on account of extraneous H
-~

774 SUPREME COURT REPORTS (1994) 1 S.C.R

A materials or circumstances, namely, the newspapers showing photographs
of the appellants with Congress (I) MLAs and Dr. Barbosa when they had
met the Governor with Dr. Wilfred D'Souza who had taken them to show
that he had the support of 20 MLAs and the observation in the order
passed by the Speaker that the Governor had told the Speaker that the
appellants belonging to the MGP had appoached him under the leadership
B of Dr. Wilfred D'Souza for staking claim to form Government on Decem-
ber 10, 1990, being considered by the Speaker in the impugned order. The
High Court has observed that the Speaker has only relied upon the photos
of the MLAs published in the newspaper reports whic\ fact was undeniable
inasmuch as the appellants have nowhere in their replies and even in the
C writ petition denied that they had met the Governor in the company of 18
other MLAs under the leadership of Dr. Wilfred D'Souza representing the
Congress (I) and splinter group of GPP led by Dr. Barbosa. According to
the High Court, when, as a fact, the appellants have admitted of having
gone to the Governor to stake the claim in the afternoon of December 10,
D 1990, it was impossible to hold that the order be held as suffering from the
vice of the order being based upon extraneous material and circumstances.
Dealing with the grievance of the appellants that no opportunity was given
to them to lead evidence, the High Court has held that the said submission
was baseless since the Speaker in his order had recorded that although
both the appellants were present before him their Advocate did not make
'E them give evidence. The High Court has obsehred that nothing prevented
the appellants from leading their own evidence when it was their case that
they wanted to _lead evidence. In this context the High Court also pointed
out that neither in their reply nor in the arguments before the Speaker the
appellants had indicated whose evidence they wanted to lead and record
or what sort of evidence they wanted to bring. The High Court has also
F
mentioned that when Dr. Jhalmi made a statement before the Speaker that
the appellants had given up _their membership of their political party and
had said so openly to him and to others, neither the appellants nor their
advocate sought to cross-examine Dr. Jhalmi on this statement.

G 16. Shri A.K. Sen, the learned Senior Counsel appearing for the
appellants in support of the appeal, has assailed the order of the Speaker
dated December 13, 1990 on the same grounds which were urged on behalf
of the appellants before the High Court. He has invited our attention to
sub-rules (5) and (6) of Rule 6 and sub-Rules (2) and (3) of Rule 7 of the
H Disqualification Rules which provide as under :
R.S. NAIK v. U.O.I. (AGRAWAL,J.] 775

"6. Reference to be by petitions. - A
--4.._
xxx xxx xxx

(5) Every petition-

(a) shall contain a concise statement of the material B
facts on which the petitioner relies; and

(b) shall be accompanied by copies of the documentary
. . >- evidence, if any, on which the petitioner relies and where
the petitioner relies on any information furnished to him
by any person, a statement containing the names and c
addresses of such persons and the list of such information
as furnisht:d by each such person.

(6) Every petition shall be signed by the petitioner and

... verified in the manner laid down in the Code of Civil
Procedure, 1908 (Central Act 5 of 1908), for the verifica-
tion of pleadings."
D

"7. Procedure. - xxx xxx xxx

(2) It the petition does not comply with the requirements E
of rule 6, the Speaker shall dismiss the petition and in-
timate the petitioner accordingly."

(3) It the petition complies with the requirements of rule
6, the Speaker shall cause copies of the petition and of
the annexures thereto to be forwarded,- F

(a) to the mamber in relation to whom the petition has
been made; and

(b) where such member belongs to any legislature party
and such petition has not been made by the leader G
thereof, also to such leader, and such member or
.-.(_ leader shall within seven days of the receipt of such
copies, or within such further period as the Speaker
may for sufficient cause allow, forward his comments
in writing thereon to the Speaker." H
776 SUPREME COURT REPORTS [1994] 1 S.C.R.

A 17. The submission of Shri Sen is that the petition that were filed by
Khalap before the Speaker did not fulfil the requirements of clause (a) of
J-
sub-Rule (5) of Rule 6 inasmuch as the said petition did not contain a
concise statement of the material facts on which the petitioner (Khalap)
was relying and further that the provisions of clause (b) of sub-Rule (5) of
.B Rule 6 were also not complied with inasmuch as the petitions were not
accompanied by copies of the documentary evidence on which the
petitioner was relying and the names and addresses of the persons and the
list of such information as furnished by each such person. It was also
submitted that the petitions were also not verified in the manner laid down --t·
in the Code of Civil Procedure for the verification of pleadings and thus
C 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
D 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 /Qhoto
E Hollohan's case (supra). 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 /Qhoto Hollohan's case (supra) is confined
to breaches of the constitutional mandates, mala /ides, 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
F 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 the
Tenth Schedule they have a status subordinate to the Constitution and
G cannot be equa~ed 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-para-
graph (1) of paragraph 6 of the Tenth Schedule as construed by this Court
>-
H in /Qhoto Hollohan case (supra).
I

R.S. NAIK v. U.0.1. [AGRAWAL,J.) 777

18. Shri Sen has next contended that there has been violation of A
principles of natural justice inasmuch as in disregard of the provisions of
Rule 7(3)(b) of the Disqualification Rules which provides for the com-
ments being forwarded by the member concerned to the Speaker within a
period of seven days of the receipt of the copy of the petition and
annexures thereto; the appellants were given only two days time to file their B
reply to the petition. Shri Sen has urged that there has been violation of
the principles of natural justice also for the reason that in the impugned
order justice also for the reason that in the impugned order the Speaker
has referred to certain extraneous materials and circumstances, namely, the
copies of the newspapers that were produced by Dr. Jhalmi at the time of
hearing and the talks which the Speaker had with the Governor. Another C
grievance raised by Shri Sen was that the appellants were denied the
opportunity to adduce their evidence before the Speaker passed the im-
pugned order.

19. Principles of natural justice have an important place in modern D
Administrative Law. They have been defined to mean "fair play in action."
(See: Smt. Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621 at p. 676,
Bhagwati, J.). As laid down by this Court "they constitute the basic ele-
ments of a fair hearing, having their roots in the innate sense of man for
fair play and justice which is not the preserve of any particular race or E
country but is shared in common by all men" Union of India v. Tulsi Ram,
[1985) Supp. 2 S.C.R. 131 at p. 225. An order of an authority exercising
judicial or quasi-judicial functions passed in violation of the principles of
natural justice is procedurally ultra vires and, therefore, suffers from a
jurisdictional error. That is the reason why in spite of the finality imparted
to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth F
Schedule such a decision is subject to judicial review on the ground of non-
compliance with rules of natural justice. But while applying the principles
of natural justice, it must be borne in mind that "they are not immutable
but flexible" and they are not cast in a rigid mould and they cannot be put
in a legal strait-jacket. Whether the requirements of natural justice have G
been complied with or not has to be considered in the context of the facts
and circumstances of a particular case.

20. The approach of the English Courts has been thus summed up
by Prof. Wade: H
778 SUPREME COURT REPORTS [1994] 1 S.C.R.

A "The judges, a~ous as always to preserve some freedom
of manoeuvre, emphasise that 'it is no.t possible to lay
down rigid rules as to when the principles of natural
justice are to apply : nor as the their scope and extent.
Everything depends on the subject-matter. The so-called
rules of natural justice are not engraved on tablets of
B stone. Their application, resting as it does upon statutory
implication, must always be in conformity with the scheme
of the Act and with the subject-matter of the case. 'In the
application of the concept of fair play there must be real
flexibilty. There must also have been some real prejudice
c to the complainant : there is no such thing as a merely
technical infringement of natural justice."

[H.W .R. Wade : Administrative Law, 6th Edn., p. 530]

Similarly Clive Lewis has stated:
D
"The fact that the applicant has suffered no prejudice as
a result of the error complained of may be a reason for
refusing him relief. It is necessary to keep in mind the
purpose of the public law principle that has technically
E been violated, and ask whether that underlying purpose
has in any event been achieved in the circumstances of the
case. If so, the courts may decide that the breach has
caused no injustice or prejudice and there is no need to
grant relief.

F The courts may, for example, refuse relief if there has been
a breach of natural justice but where the breach has in
fact not prevented the individual from having a fair hear-
. "
mg. .
[Clive Lewis: Judicial Remedies in Public Law (1992) p.
G 290]

In the words of Lord Wilberforce:

"A breach of procedure, whether called a failure of natural
justice, or an essential administrative fault, 1cannot give
H him a remedy in the courts, unless behind it there is
R.S. NAIK v. U.O.I. (AGRAWAL,J.) 779

~. something of substance which has been lost by the failure. A
The court does not act in vain." [Malloch v. Aberdeen
Corporation, [1971) 2 All E.R. 1278 at p. 1294)

21. The approach of the Courts in India is no different. In A.M.
Allison v. B.L. Sen, [1957) S.C.R. 359, it has been laid down that while
exercising the jurisdiction under Article 226 of the Constitution the High B
Court has the power to refuse the writs if it was satisfied that there has no
... ,. failure of justice.

22. The grievance of the appellants regarding violation of the prin-
ciples of natural justice has to be considered in this light.
c
23. It is no doubt true that under Rule 7(3)(b) of the Disqualification
Rules, it has been provided that the members concerned can forward his
comments in writing on the petitions within seven days of the receipt of
the copies of the petition and the annexures thereto and in the instant case
the appellants were given only two days time for submitting their replies. D
·~ The appellants, however, did submit their replies to the petitions within the
said period and the said replies were quite detailed. Having regard to the
fact that there was no denial by the appellants of the allegation in para-
graph 11 of the petitions about their having met the Governor on Decem-
ber 10, 1990 in the company of Dr. Barbosa and Dr. Wilfred D'Souza and
other Congress (I) MLAs and the only dispute was whether from the said
E
conduct of the appellants an inference could be drawn that the appellants
had voluntartily given up their leadership of the MGP, it cannot be said
that the insufficient time given for submitting the reply has resulted in
denial of adequate opportunity to the appellants to controvert the allega-
tions contained in the petitions seeking dsqualification of the appellants. F
24. As regards the reference to the newspapers in the impugned
order passed by the Speaker it appears that the Speaker, in his order, has
only referred to the photographs as printed in the newspapers showing the
appellants with Congress (I) MLAs and Dr. Barbosa, etc. when they had
met the Governor with Dr. Wilfred D'Souza who had taken them to show G
that he had the support of 20 MLAs. The High Court has rightly pointed
--(
out that the Speaker, in referring to the photographs was drawing" an
inference about a fac;t which had not been denied by the appellants
themselves, viz., that they had met the Governor along with Dr. Wilfred
D'Souza and Dr. Barbosa on December 10, 1990 in the company of H
. 780 SUPREME COURT REPORTS [1994] 1 S.C.R.

A Congress (I) MLAs, etc. The talk between the S;:>eaker and the Governor
also refers to the same fact. In view of the absence of a denial by the
appellants of the averment that they had met the Governor on December
10, 1990 accompanied by Dr. Barbosa and Dr. Wilfred D'Souza and
Congress MLAs the controversy was confined to the question whether
B ,from the said conduct of the appellants an inference could be drawn that
they had voluntarily given up the membership of the MGP. The reference
to the newspapers reports and to the talk which Speaker had with the
Governor, in the impugned order of disqualification does not, in these
circumstances, introduce an infirmity which would vitiate the said order as
being passed in violation of the principles of natural justice.
c
25. The grievance that the appellants have been denied the oppor-
tunity to adduce the evidence is also without substance. The appellants
were the best persons who could refute the allegations made, in the peti-
tions. In the impugned order the Speaker has mentioned that the appellants
were present before him but they did not come forward to give evidence.
D Moreover, they could have sought permission to cross-examine Dr. Jhalmi
in respect of the statement was made by him before the Speaker that the
appellants had given up their membership of their political party and had
said so openly to him and to others, in order to refute the correctness of
the said statement. They, however, failed to do so.
E
26. In the light of the aforesaid facts and circumstances we are unable
to hold that the impugned order of disqualification was passed by the
Speaker in violation of the principles of natural justice. Since we are of the
view that the appellants have failed to make out a case for interference .y
with order dated December 13, 1990 passed by the Speaker disqualifying
F the appellants, we do not consider it necessary to go into the question
about the appellants having disentitled themselves from invoking the juris-
diction of the High Court Under Article 226 of the Constitution. The
judgment of the High Court dismissing the writ petition of the appellants
must be upheld and C.A. No. 3309 of 1993 filed by the said appellants must
G be dismissed.

CA. No. 2904 of 1993

27. This appeal relates to the disqualification of Ravi Naik under
order of the Speaker dated February 15, 1991. As mentioned earlier, Naik
H was sworn in as Chief Minister of Goa on January 25, 1991. On the same
R.S. NAIK v. U.O:I. [AGRAWAL, J.l 781

day Dr. Kashinath Jhalmi filed a-petition before the Speaker of the Goa A
Legislative Assembly under Article 191(2) read with Para 2(a) of the Tenth
Schedule to the Constitution wherein it was stated that Naik was elected
to the Goa Legislative Assembly on th~ ticket and symbol of MOP at the
last Assembly election and he had also given a Declaration in accordance
with the Disqualification Rules that he belongs to MOP. In the said
petition, it was further stated that Naik had sworn himself as Chief Minister B
of Goa by voluntarily giving up the membership of MOP and that he has
claimed that he has given up membership of his original party, the MOP,
and that by his said action Naik has incurred disqualification for being a
Member of the House under the provision of Article 191(2) of the Con-
stitution of India read with paragraph 2(a) of the Tenth Schedule of the C
Constitution. After receipt of the said petition, the Speaker issued a notice
on January 29, 1991, which was received by Naik on the same day, whereby
Naik was required to submit his reply to the said petition by February 5,
1991. After receipt of the said Notice Naik submitted an application dated
February 5, 1991 whereby he sought time of one month to file his reply to D
>~ the petition on the ground that he has been advised bed-rest in hospital
for fifteen days and he was unable to apply his mind to give instructions to
his lawyers. In the said application Naik further indicated that his case was
going to be that he and several others members of Legislative Assembly
belonging to MOP alongwith him constitute a group which has arisen on
account of the split in the original political party. The Speaker, by his letter E
dated February 6, 1991, granted extension of time till February 11, 1991,
for Naik to forward his comments. On February 11, 1991, Naik sent anotJ.er
letter requesting for further time for three weeks to forward his comments.
The said request of Naik was refused by the Speaker and on February 11,
a
1991 he sent letter informing Naik to appear before him for personal F
hearing on February 13, 1991at4.00 P.M. On February 13, 1991, Naik did
not appear but an advocate appeared on his behalf and submitted his reply
in writting. In the said reply Naik stated:

(i) On the 24 December, 1990, in the meeting held at
Ponda, Goa, there was a split in the original Maharashtra- G
wadi Gomontak Party. The meeting was attended, among
others, by Office bearers namely Executive President, Shri
Gurudas Malik, Joint Secretary, Shri Avinash Bhonsla,
various executive members and workers of Maharashtra-
wadi Go10antak Party. It was decided that M.G.P. (Ravi H
782 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Naik Group) under my leadership to constituted. A
resolution to that effect was passed.

(ii) Consequent upon the split, the following members of
the Legislative Assembly of the original M.G. Party have
joined the group representing the M.G.P. (Ravi Naik
B Group) and constitute the group representing the faction
which thas arisen as a result of the said split in the original
M.G. Party and they are signatures to the declaration to
that effect :

1. Shri Ravi S. Naik
c 2. Shri Ashok T.N. Salgaonkar
3. Shri Shankar Salag:ionkar
4. Shri Pandurang Raut
5. Shri Vinaykumar Usagaonkar
6. Shri Ratnakar Chopdekar
D 7. Shri Sanjay Bendekar
8. Shri Dharma Chidabjar" +-·
28. Alongwith the said reply Naik submitted Xerox copies of the
Resolution referred to above as well as the declaration bearing signatures
E of eight MLAs. In the said reply Naik stat~d that given time he would
precure the necessary evidence to be adduced to substantiate the aver-
ments contained in the reply. He prayed for fifteen days time to produce
his affidavit and witnesses. In the Writ Petition filed in the High Court, it
has been stated by Naik that the original resolution as well as the declara-
tion bearing signatures of eight MLAs were shown to the Speaker at the
F time of hearing by the advocate for Naik on February 13, 1991.

29. The Speaker, in his order dated February 15, 1991, has posed two
questions - (1) Whether the alleged split is proved; and (2) Whether the
group of MLAs who have disassociated from the party constitute 11:3rd of
G MLAs of original party. Both the questions were answered in the negative.
The Speaker has observed that if there was really a split in the party and
a separate group of MLAs' of old MGP was formed, it was incumbent upon
the leader of the group to give information of the split to the Speaker as
required by Rule 3 of the Disqualification Rules in Form-I but no such
information had been furnished till the date of the order and that under
H Rule 4 of the Disqualification Rules each of the members of the group had
R.S. NAIK v. U.0.1. [AGRAWAL,J.J 783

to give a certificate to that effect by filing Form-III and this also had not A
been done till date of the order. The Speaker, in his order, has also
mentioned that two MLAs of the alleged group had already been dis-
qualified by him. Referring to the contention urged by the advocate ap-
pearing for Naik that there was a stay by the High Court against the
disqualification of these two MLAs, the Speaker has observed :
B
"This argument cannot help the disqualified MLAs as stay
from the court came after the order of disqualification was
issued by me. Besides recently the Parliament has held
that the Speaker's order cannot be a subject matter of
court proceedings and his decision is final as far as Tenth c
Schedule of Constitution of India is concerned."

30. The speaker has also mentioned that Dharma Chodankar had
intimated to him on January 14, 1991 that Naik and others had obtained
his signatures forcibly without his consent and against his will on a paper D
and that even on February 13, 1991 he had addressed a letter to the
Speaker regarding sitting arrangements that he had no connection what-
soever with the Naik group and that he continues to be with the original
political party. As regards the Resolution and the declaration on which
reliance was placed by Naik, the Speaker has observed that on the reverse
of the typed sheet of paper which purports to be a resolution passed on E
December 24, 1990 there are some signatures and that in the typed portion
there are six names of which four are of MLAs including Naik and two are
disqualified MLAs and that the name of Dharma Chodankar is not there.
The Speaker has also observed that if he had been .;hown the Notice calling
the meeting at Panda showing its exact venue and the time, and the F
signatures of the persons who attended that meeting and minutes of that
meeting there could be some evidence to show that such meeting had been
actually held and that in the absence of any such proof the holding of the
meeting cannot be accepted. The Speaker was also of the view that not
only the split has to be proved but it has to be proved by conforming to
the Rules and in the face of the doubtful evidence represented by a typed G
sheet Resolution it could not be accepted and as no information as
prescribed by the Rules was given, the split in the party was not proved.
In his order the Speaker has further stated that he had suggested that Naik
should produce the affidavits or the members in person to support his case
and he could have brought the six members in person or six affidavits of H
--- -------------------------------------~

I
784 SUPREME COURT REPORTS (1994] 1 S.C.R.

A the erstwhile MGP MLAs who had joined his group after the so called
split but he did not produce a single affidavit nor the persons and that out
of eight signatures supposed to have been taken by Naik at Ponda on
December 24, 1990, two were. already disqualified and one Dharma
. -Chodankar has stated in clear terms that he does not belong to the group.
B The Speaker, therefore, held fuat there was no_ group of one-third erstwhile
MGP MLAs including Naik, anJ he declared Naik as disqualified from
being a member cf Goa Legislative Assembly under Article 191(2) read
with para 2(a) of the Ten!hSchedule to the Constitution.. ·

3L Before the High Court it has urged on behalf of Naik that in view
. C of the stay order passed by the High Court on December 14, 1990 in Writ
Petition No. 321 of 1990 filed by Bandekar and Chopdekar whereby the
operation of the order dated December 13, 1990 regarding disqualification
of Bandekar and Chopdekar had been stayed, the Speaker was not right
in excluding the said two members from the group of Naik, on the ground
D that they were disqualified members of Goa Legislative Assembly. Reject-
ing the said contention the High Court has observed:

'It is true that the Speaker in the impugned order held
that he is not bound by the stay order granted by the High
Court as he had already made the disqualification orders .
E earlier to the stay order granted by the High Court. The
Speaker iodeed further mentioned that recently the Par-
liaffient has held that the Speaker's orders cannot be
subject~matter of Court proceedings and his decision is
final so far as the Tenth Schedule of the Constitution of
F India is concerned. The fact remains that when the
--~-,
Speaker made the orders of disqualification on 13th
December, 1990 the Division Bench had stayed the same
. on 14th December, 1990 io the petition filed by Bandekar
and Chopdekar. The conclusions in Kihota's case were
pronounced by the Supreme Court in November, 1992
G whereby Para 7 of the Tenth Schedule ousting the juris-
diction of the Courts were held to be invalid and ultra vires
the Constitution. The Speaker clearly mentioned that the
decision rendered by the Speaker under the Tenth
Schedule disqualifying a Member cannot be a subject-mat-
H ter of Court proceedings. Admittedly on the date on which
RS.NAIK v. U.0.1. [AGRAWAL,J.] 785

he made the present impugned order, Para 7 of the Tenth A
Schedule was not held invalid by the Apex Court and the
invalidity came much later. On his interpretation of Paras
6 and 7 of the Tenth Schedule, the Speaker hold that the
stay order granted by a Division Bench of this Court is
not binding upon him. In such circumstances; it cannot be
held that the action of the Speaker was perverse or
B
malafide. Had it been a fact that the Speaker was to make
such order after the pronouncement or the conclusion in
Kihoto's case, i.e., after November, 1991, the story would
have been different. We do agree with Shri Ashok Desai,
learned counsel, that propriety demanded that the c
Speaker should have respected the order of the High
Court but nothing turns on the same as by this Judgment
the disqualification of Bandekar and Chopdekar is upheld
which takes effect as from November, 1990."
D
32. Another contention that was urged before the High Court on
behalf of Naik was that the Speaker in his order dated February 15, 1991,
has referred to letters dated January 14, 1991 and February 13, 1991
received by him from Dharma Chodankar and that the said letters were
not disclosed to Naik earlier and Naik had no opportunity of producing in
rebuttal. The High Court has rejected the said contention with the obser- E
vation:

"It must be seen that when for the first time the Legislative
Assembly was met on 13th February, 1991 Dharma
Chodankar admittedly sat in the Assembly at the sitting F
arrangement allotted to the original Maharashtrawadi
Gomantak Party and Chodankar was not allotted a seat
in the House with the so-called breakaway group under
the leadership of Ravi Naik. Though Ravi Naik, at some
stage, had informed the Speaker of allotment of sitting
arrangement for his group separately from the original G
Maharashtrawadi Gomantak Party, the Speaker did not
accede to that request in so far as M.L.A. Dharma
Chodankar is concerned. Ravi Naik remained content
with such sitting arrangement with Dharma Chodankar
sitting with the original party and it is not possible to H
786 SUPREME COURT REPORTS [1994] 1 S.C.R.

A accept that Ravi Naik had not noticed it when the As-
sembly session had taken place in the morning of that day.
The inference that can be drawn from this is that Ravi
Naik knew that Chodankar was not with him much before
the hearing took place before the Speaker. In the cir-
cumstances, in our view, even the non-disclosure of letters
B
of Chodankar cannot be said to have made any difference
and that way caused any prejudice to the petitioner Ravi.
Upon reading the impugned order it also does not give
an impression to this Court that the order of disqualifica-
tion had been based solely upon this so-called extraneous
c material. On the contrary, the order of disqualification is
solely and mainly based upon the failure of Ravi Naik to
adduce evidence to prove the split as required under Para
3 of Tenth Schedule."

D 33. The High Court has laid emphasis on the point that in Para 3 of
the Tenth Schedule the burden of proof is on the member who claims that
he and other members of his Legislature Party constitute a group repre-
senting a faction which has arisen as a result of a split in his original
politicai party and such a group consists not less then one third of the
members of such Legislature Party. According to the High Court since
E Naik had made a claim that there had been a split, the burden of proof to
establish that there was a split was on Naik.

34. Shri Soli Sorabjee, learned Senior Counsel appearing for Naik,
assailing the findings recorded by the High Court, has, in the first place,
F contended that in view of the stay order passed by the High Court on
December 14, 1990 in Writ Petition No. 321 of 1990 filed by Bandekar and
Chopdekar the Speaker could not have proceeded on the basis that Ban-
dekar and Chopdekar stood disqualified as members of the· Legislative
Assembly on December 24, 1990, when there was a split, as claimed by
Naik. As regards letters dated January 14, 1991 and February 13, 1991
G received by the Speaker from Dharma Chodankar, Shri Sorabjee has urged
that the said letters were never disclosed to Naik earlier and that the said
documents could not be relied upon by the Speaker without affording an
opportunity to Naik to adduce evidence in rebuttal and, moreover, in these
letters Dharma Chodankar has not denied his signatures on the declaration
H dated December 24, 1990 which has been produced by the appellant and
R.S.NAIK v. U.0.1. [AGRAWAL,J.] 787

has only claimed that his signatures had been obtained forcibly which A
means that he had actually signed the said declaration. Shri Sorabjee has
urged that the question whether the signatures of Dharma Chodankar had
been obtained forcibly on the- said Declaration could only be proved by
evidence prodence in the presence of the parties and that no evidence was
add1 ced in support of the said alllegation and in that view of the matter B
1

the Speaker could not ignore the signatures of Dharma Chodankar on the
declaration dated December 24, 1990 and it could not be held that the
members in the group formed by Nfilk was less than one third of the
members of the Legislature Party of Nfilk, namely, MGP.

35. As noticed earlier paragraph 2 of the Tenth Schedule provides C
for disqualification on the ground of defection if the conditions laid down
therein are fulfilled and paragraph 3 of the said Schedule avoids such
disqualification in case of split. Paragraph 3 proceeds on the assumption
that but for the applicability of the said provision the disqualification under
paragraph 2 would be attracted. The burden to prove the requirements of
paragraph 2 is on the person who claims that a member has incurred the D
disqualification and the burden to prove the requirements of paragraph 3
is on the member who claims that there has been a split in his original
political party and by virtue of said split the disqualification under para-
graph 2 is not attracted. In the present case Nfilk has not disputed that he
has given up his membership of his original political party but he has E
claimed that there has been a split in the said party. The burden, therefore,
lay on Naik to prove that the alleged split satisfies the requirements of
paragraph 3. The said requirements are:

(i) The member of a House should make a claim that he
and other members of his legislature party constitute the F
group representing a faction which has arisen as a result
of a split in his original party; and

(ii) Such group must consist of not less than one-third of
the members of such legislature party.
G
36. In the present case the first requirement was satisfied bec~use
Nfilk has made such a claim. The only question is whether the second
requirement was fulfilled. The total number of members in the legislature
party of the MGP (the original political party) was eighteen. In order to
fulfil the requirements of paragraph 3 Naik's group should consist of not H
788 SUPREME COURT REPORTS [1994] 1 S.C.R.

A less than 6 members of the legislature party of the MGP. Naik has claimed
that at the time of split on December 24, 1990 his group consisted of eight
members whose signatures are contained the Declaration, a copy of which
was filed with the reply dated February 13, 1991.

B 37. The Speaker has held that the split had not been proved because
no intimation about the split has been giYen to him in accordance with
Rules 3 and 4 of the Disqualification Rules. We find it difficult to endorse
this view. Rule 3 requires the information in respect of matters specified
in Clauses (a), (b) and (c) of sub-Rule (1) to be furnished in the prescribed
form (Form I) to the Speaker by the leader of the legislature party within
C 30 days after the first sitting of the House or where such legislature is
formed after the first sitting, within 30 days after its formation. Rule 4
relates to information ~o be furnished by every member to the Secretary of
the Assembly in the prescribed form (Form III). In respect of a member
who has taken his seat in the House before the date of commencement of ......1
D the Disqualification Rules, the information is required to be furnished
within 30 days from such date. In respect of a member who takes hie; seat
in the House after the commencement of the Disqualification Rules such
information has to be furnished before making and subscribing an oath or
affirmation under Article 188 of the Constitution and taking his seat in the
House. Rule 4 has no application in the present case because the stage for
E furnishing the required information had passed long back when the mem-
bers made and subscribed to oath and affirmation after their election in
1989. Rule 3 also comes into play after the split and the failure on the part
of the leader of the group that has been constituted as a result of the split
does not nean that there has been no split. As to whether there was a split
F or not has to be determined by the Speaker on the basis of the material
placed before him. In the present case the split was sought to be proved
by the Declaration dated December 24, 1990 whereby eight MLAs belong-
ing to the MGP declared that they had constituted themselves into a group
known as Maharastrawadi Gomantak Party (Ravi Naik Group). A Xerox
copy of the said declaration was submitted along with the reply filed by
G Naik on February 13, 1991 and the original declaration bearing the signa-
tures of the eight MLAs was produced by the advocate for Naik during the
course of the hearing before th\! Speaker on February 13, 1991. The
genuineness of the signatures on the said declaration was not disputed
before the Speaker. One of the signatories of the Declaration, namely,
H Dharma Chodankar, had written to the Speaker that his signatures were
R.S. NAIK v. U.O.I. [AGRAWAL,J.] 789

obtained forcibly. That may have a bearing on the number of members A
constituting the group. But the fact that a group was constituted is estab-
lished by the said Declaration.

38. The question that requires copsideration is whether as a result of
the said group being constituted there was a split in the MGP as con- B
templated by paragraph 3 of the Tenth Schedule. The Speaker has held
that the requirements of paragraph 3 were not fulfilled for the reason that
the number of members of the group was less than one-third of the
members of the legislature party of the MGP. For coming to the conclusion
the Speaker has excluded Bandekar and Chopdekar on the ground that
they stood disqualified under order dated December 13, 1990 passed by C
him and Dharma Chodankar was excluded on the ground that he had
disowned his signatures on the Declaration. The said view of the Speaker
has been assailed before us.

39. We will first examine whether Bandekar and Chopdekar could D
be excluded from the group on the basis of order dated December 13, 1990
holding that they stood disqualified as members of the Goa Legislative
Assembly. The said two members had filed Writ Petition No. 321 of 1990
in the Bombay High Court wherein they challenged the validity of the said
order of disqualification and by order dated December 14, 1990 passed in
the said writ petition the High Court had stayed the operation of the said E
order of disqualification dated December 13, 1990 passed by the Speaker.
The effect of the stay of the operation of the order of disqualification dated
December 13, 1990 was that with effect from December 14, 1990 the
Declaration that Bandekar and Chopdekar were disqualified from being
members of Goa Legislative Assembly under order dated December 13, F
1991 was not operative and on December 24, 1990, the date of the alleged
split, it could not be said that they were not member of Goa Legislative
Assembly. One of the reasons given by the Speaker for not giving effect to
the stay order passed by the High Court on December 14, 1990, was that
the said order came after the order of disqualification was issued by him.
We are unable to appreciate this reason. Since the said order was passed G
in a writ petition challenging the validity of the order dated December 13,
1990 passed by the Speaker it, obviouly, had to come after the order of
disqualification was issued by the Speaker. The other reason given by the
Speaker was that Parliament had held that the Speaker's order cannot be
a subject-matter of court proceedings and his decision is final as far as H
790 SUPREME COURT REPORTS [1994] 1 S.C.R.

A Tenth Schedule of the Constitution is concerned. The said reason is also
unsustainable in law. As to whether the order of the Speaker could be a
subject matter of court proceedings and whether his decision was final
were questions involving the interpretation of the provisions contained in
Tenth Schedule to the Constitution. On the date of he passing of the stay
order dated December 14, 1990, the said questions were pending con-
B sideration before this Court. In the ab3ence of an authoritative pronoun-
cement by this Court the stay order passed by the High Court could not
be ignored by the Speaker on the view that his order could not be a
subject-matter of court proceedings and his decic;ion was final. It is setled
law that an order, even though interim in nature, is beinding till it is set ~''
c aside by a competent could and it cannot be ignored on the ground that
the Court which passed the order had no jurisdiction to pass the same.
Moreover the stay order was passed by the High Court which is a Superior
Court of Record and "in the case of a superior Court of Record, it is for
the court to consider whether any matter falls within its jurisdiction or not.
D Unlike a court of limited jurisdiction, the superior Court is entitled to
determine for itself questions about its own jurisdiction." (See: Special
Reference No. 1 of 1964, [1965] 1 S.C.R. 413 at p. 499).

40. The said question relating to the jurisdiction of the High Court
to entertain the writ petitions challenging the order of the Speaker now
E stands concluded by the judgment of this Court in Kihoto Hollohan case
(supra) wherein the provisions of paragraph 7 of the Tenth Schedule have
been held to be unconstitutional and paragraph 6 has been construed and
it has been held that the Speaker, while passing an order in exercise of his
powers under sub-paragraph (1) of paragraph 6 of the Tenth Schedule
functions as a Tribunal and the order passed by him is subject to judicial
F
review under Articles 32, 136, 226 and 227 of the Constitution.

41. In Mulraj v. Murti Raghonathji Maharaj, [1%7] 3 S.C.R. 84, this
Court has dealt with effect of a stay order passed by a court and has laid
down:
G
"In effect therefore a stary order is more of less in the
same position as an order of injunction with one dif-
ference. An order of injunction is generally issued to a
party and it is forbidden from doing certain acts. It is well
H settled that in such a case the party must have knowledge
R.S. NAIK v. U.0.1. (AGRAW/.L, J.] 791

of the injunction order before it could be penalised for A
before disobeying it. Further it is equally well-settled that
the injunction order not being addressed to the court, if
the court proceeds in contravention of the injunction
order, the proceedings are not a nullity. In the case of a
stay order, as it is addressed to the court and prohibits it
B
from proceeding further, as soon as the court has
knowledge of the order it is bound to obey it and if it does
not, it acts illegally, and all proceedings taken after the
know!edge of the order would be nullity. That in our
opinion is the only difference between an order of injunc-
tion to a party and an order of stay to a court." c
This would mean that the Speaker was bound by the stay order passed by
the High Court on December 14, 1990 and any action taken by him in
disregard of the said stay order was a nullity. In the instant case the
Speaker, in passing the order dated February 15, 1991 relating to dis- D
qualification, treated Bandekar and Chopdekar as disqualified members.
This action of the Speaker was in disregard of the stay order dated
December 14, 1990 passed by the Bombay High Court.

42. The High Court has upheld the order of the Speaker, even though
he had disregarded the stay order passed by the High Court, on the basis E
that on the date on which the Speaker had made the impugned order,
Paragraph 7 of the Tenth Schedule had not been held to be invalid by this
Court and the invalidity came much later. The High Court has observed
that on his interpretation of paragraphs 6 and 7 of the Tenth Schedule, the
Speaker held that the stay order by the Division Bench was binding upon F
him and in such circumstances it could not be held that the action taken
by the Speaker was perverse or malafide. According to the High Court, the
position would have been different if the Speaker was to make the order
after the decision of the Court. We are unable to agree with this view of
the High Court. The decision of this Court in Ki.hoto Hollohan case (supra)
declares the law as it was on the date of the coming into force of the G
Constitution (Fifty Second) Amendment Act, 1985. The action of Speaker
in ignoring the stay order passed by the High Court while passing the order
dated February 15, 1991 cannot be condoned on the view that in the
absence of the decision of this Court is was open for the Speaker to
proceed on his own interpretation of paragraphs 6 and 7 of the Tenth H
792 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Schedule and ignore the stay order passed by the High Court.

43. Relying upon the decision in The State of Qrissa v. Madan Gopal
Rungta, [1952) S.C.R. 28, Shri R.K. Garg, learned Senior Counsel appear-
ing for Respondent No. 5, has submitted that the interim order could only
B be issued in aid of and as ancillary to the main relief which may be available
to the party on final determination of his rights in a suit or proceeding and
not in derogation of the main relief and that it was open to the High Court,
to pass an appropriate order while finally disposing of the Writ Petiton.
Shri Garg has contended that the High Court while finally disposing of the
writ petition No. 321 of 1990 filed by Bandekar and Chopdekar upheld the
C order dated January 13, 1990 passed by the Speaker regarding disqualifica-
tion of Bandekar and Chopdekar and in these circumstances it cannot be
said that disregard of the interim order passed by the High Court on
December 14, 1990 by the Speaker had the affect of rendering the sub-
sequent order dated February 15, 1991 illegal. We are unable to agree with
D this contention. It is true that an interim order is issued in aid of or ancillary
to the main relief and not in derogation of the main relief. The stay order
passed by the High Court on December 14, 1990 staying the operation of
the order dated December 13, 1990 passed by the Speaker had been issued
in aid of and ancillary to the main relief in the wirt petition No. 321of1990
which was for quashing of the said order dated December 13, 1990. The
E fact that the writ petition was ultimately dismissed and the impugned order
dated December 13, 1990 passed by the Speaker was upheld by the High
Court does not mean that the High Court had committed any error in
passing the interim order for stay of operation of the order under challenge
in the writ petition on December 14, 1990. The dismissal of the Writ
F Petition at the final stage does not, in our view, confer validity on the action
which was taken by the Speaker on February 15, 1991 in passing the order
disqualifying Naik in disregard of the stay order passed by the High Court
on December 14, 1990. In the circumstances, it must be held that in view
of the stay order passed by the High Court on December 14, 1990 in Writ
G Petition No. 321 of 1990, the S f1eaker while passing the order dated
February 15, 1991, could not have proceeded on the basis that Bandekar
and Chopdekar stood disqualified under his order dated December 13,
1990 and they could not be included in the group of Naik for the purpose
of ascertaining whether the said group consisted of one third members of
the Legislature Party of MGP, the original political party. If the above two
H members are included within the group of Naik then it is not disputed that
R.S. NAIK v. U.0.1. [AGRAWAL,J.) 793

the number of member in the group was more than one third of the A
.. ---l legislature party of MGP. This would be so even if Dharma Chodankar was
excluded because the total number of member in the group of Naik would
be seven and the number of members of the legislature party of MGP
required for the purpose of a svlit under paragraph 3 of the Tenth
Schedule was six. The order dated February 15, 1991, passed by the B
Speaker was, therefore, in violation of the constitutional mandate con-
tained in paragraph 3 of the Tenth Schedule to the Constitution and is
liable to be quashed on the basis of the law laid down by this Court in
, ~ Kihoto Hollohan case (supra).

44. In that view of the matter we do not consider it necessary to deal C
with the submission of Shri Sorabjee that the action of the Speaker in
excluding Dharma Chodankar from the group of Naik was in violation of
the principles of natural justice.

45. In the result, while C.A. No. 3309 of 1993 filed by Bandekar and
Chopdekar is dismissed, C.A. No. 2904 of 1993 filed by Naik is allowed. D
The order dated May 14, 1993 passed by the High Court in Writ Petition
No. 48 of 1991 is set aside and the said Writ Petition is allowed and the
order dated February 15, 1991 passed by the Speaker, Goa Legislative
Assembly declaring the Naik as disqualified for being a member of the Goa
Legislative Assembly is quashed. There is no order to costs in both the E
appeals.

T.N.A. C.A. No. 3309/1993 in dismissed.
C.A. No. 2904/1993 in allowed.