SPEAKER HARYANA VIDHAN SABHAversusKULDEEP BISHNOI & ORS.

                       [2012] 10 S.C.R. 672


A             SPEAKER HARYANA VIDHAN SABHA
                                  v.
                   KULDEEP BISHNOI & ORS.
                  (Civil Appeal No.7125 of 2012)

                      SEPTEMBER 28, 2012
B
        [ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]

          Constitution of India, 1950 - Articles 226 & 227 and
    Article 191 r/w Tenth Schedule - Haryana Vidhan Sabha -
C   Five MLAs of one political party wrote letters to the Speaker
    expressing their intention to merge their party with another
    political party - Speaker accepted the merger and recognized
    the said MLAs as Members of the other political party -
    Petitions filed before the Speaker under paragraph 6 of the
D   Tenth Schedule to the Constitution for disqualif1eation of the
    said MLAs - On ground that they had voluntarily given up the
    membership of their original political party and had joined
    another party in violation of the provisions of paragraph 4(1)
    of the Tenth Schedule - Writ Petition also filed - Single Judge
E   of the High Court directed the Speaker to finally decide the
    disqualification petitions pending before him within four
    months - Division Bench affirmed the directions given by the
    Single Judge, and further directed that pending decision by
    the Speaker, the five MLAs in question would stand
F   disqualified from effectively functioning as members of the
    Haryana Vidhan Sabha - On appeal, held: Under the scheme
    of the Tenth Schedule to the Constitution, the Speaker does
    not have an independent power to decide that there has been
    split or merger as contemplated by paragraphs 3 and 4
    respectively of the Tenth Schedule and such a decision can
G   be taken only when the question of disqualification arises in
    a proceeding under paragraph 6 of the Tenth Schedule -
    Restraining the Speaker from taking any decision under
    paragraph 6 of the Tenth Schedule was beyond the jurisdiction

H                                672
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 673
              BISHNOI & ORS.
of the High Court, since the Constitution itself has vested the    A
Speaker with the power to take a decision under paragraph 6
and care has also been taken to indicate that such decision
of the Speaker would be final - Direction given by the Single
Judge, as endorsed by the Division Bench, upheld to the
extent it directs the Speaker to decide the petitions for          B
disqualification of the five MLAs within a period of four months
- Remaining portion of the order disqualifying the five MLAs
from effectively functioning as Members of the Haryana
Vidhan Sabha set aside - Said five MLAs entitled to fully
function as Members of the Haryana Vidhan Sabha without            c
restrictions, subject to final decision by the Speaker in the
disqualification petitions - Haryana Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules,
1986.

      Pursuant to the 12th Legislative Assembly Elections D
 in the State of Haryana, the Indian National Congress
 Party, ['the INC'] emerged as the single largest party and
 formed the Government. Subsequently, five MLAs of the
 Haryana Janhit Congress (BL) Party ['the HJC (BL)']
 wrote to the Speaker expressing their intention to merge E
 the HJC (BL) with the INC. The Speaker accepted the
merger and recognized the five concerned MLAs as
Members of the INC in the Haryana Vidhan Sabha.
Challenging the orders passed by the Speaker,
Respondent no.1 filed petitions before the Speaker under F
Article 191 read with the Tenth Schedule to the
Constitution of India and the Haryana Legislative
Assembly (Disqualification of Members on Ground of
Defection) Rules, 1986, on the ground that they had
voluntarily given up the membership of their original G
political party and had joined the INC in violation of the
provisions of paragraph 4(1) of the Tenth Schedule.
Respondent no.1 also filed a Writ Petition. A Single Judge
of the High Court allowed the Writ Petition and directed
the Speaker to finally decide the disqualification petitions H
    674     SUPREME COURT REPORTS            [2012] 10 S.C.R.

A pending before him within a period of four months.
  Letters Patent Appeal was filed by the Speaker. The
  Division Bench not only declined to interfere with the
  directions given by the Single Judge, but in addition
  directed that pending decision by the Speaker, the five
8 MLAs in question would stand disqualified from
  effectively functioning as members of the Haryana
  Vidhan Sabha. The aforesaid directions were challenged
  in the instant appeals by the Speaker and the five
  concerned MLAs.
c        In the aforesaid context, the following substantial
    questions of law arose for consideration:- (a) Whether
    the High Court in exercise of its powers under Articles
    226 arid 227 of the Constitution, has the jurisdiction to
    issue directions of an interim nature to a Member of the
D   House while a disqualification petition of such Member
    is pending before the Speaker of a State Legislative
    Assembly under Article 191 read with the Tenth Schedule
    to the Constitution of India (b) Whether even in exercise
    of its powers of judicial review, the High Court, as a
E   constitutional authority, can issue mandatory directions
    to the Speaker of a State Assembly, who is himself a
    constitutional authority, to dispose of a disqualification
    petition within a specified time (c) Can the High Court, in
    its writ jurisdiction, interfere with the disqualification
F   proceedings pending before the Speaker and pass an
    order temporarily disqualifying a Member of the State
    Legislative Assembly (d) When a disqualification petition
    filed under Article 191 read with the Tenth Schedule to the
    Constitution of India is pending consideration before the
G   Speaker, can a parallel Writ Petition, seeking the same
    relief, be proceeded with simultaneously and (e) Did the
    High Court have jurisdiction to give directions under
    Order 41 Rule 33 of CPC, despite the express bar
    contained in the Explanation to Section 141 of CPC, in
H   proceedings under Article 226 of the Constitution.
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 675
              BISHNOI & ORS.
    Disposing of the appeals, the Court                       A

     HELD:1.1. The scheme of the Tenth' Schedule to the
Constitution indicates that the Speaker is not competent
to take a decision with regard to disqualification on
ground of defection, without a determination under            8
paragraph 4, and paragraph 6 in no uncertain terms lays
down that if any question arises as to whether a Member
of the House has become subject to disqualification, the
said question would be referred to the Speaker of such
House whose decision would be final. The finality of the      C
decisions of the Speaker is in regard to paragraph 6
since the Speaker is not competent to decide a question
as to whether there has been a split or merger under
paragraph 4. Under the scheme of the Tenth Schedule,
the Speaker does not have an independent power to
decide that there has been split or merger as                 D
contemplated by paragraphs 3 and 4 respectively and
such a decision can be taken only when the question of
disqualification arises in a proceeding under paragraph
6. It is only after a final decision is rendered by the
Speaker under paragraph 6 of the Tenth Schedule to the        E
Constitution that the jurisdiction of the High Court under
Article 226 of the Constitution can be invoked. [Para 44]
[697-D-F, H; 698-A-B]                    .

     1.2. Since the decision of the Speaker on a petition     F
under paragraph 4 of the Tenth Schedule concerns only
a question of merger on which the Speaker is not entitled
to adjudicate, the High Court could not have assumed
jurisdiction under its powers of review before a decision
was taken by the Speaker under paragraph 6 of the Tenth       G
Schedule to the Constitution. It is in fact in a proceeding
under paragraph 6 that the Speaker assumes jurisdiction
to pass a quasi-judicial order which is amenable to the
writ jurisdiction of the High Court. It is in such
proceedings that the question relating to the
                                                              H
    676    SUPREME COURT REPORTS            [2012] 10 S.C.R.


A disqualification is to be considered and decided.
  Accordingly, res.training the Speaker from taking any
  decision under paragraph 6 of the Tenth Schedule is
  beyond the jurisdiction of the High Court, since the
  Constitution itself has vested the Speaker with the power
B to take a decision under paragraph 6 and care has also
  been taken to indicate that such decision of the Speaker
  would be final. It is only thereafter that the High Court
  assumes jurisdiction to examine the Speaker's order.
  [Para 45] [698-D-G]
c      1.3. Order 41 Rule 33 CPC vests the Appellate Court
  with powers to pass any decree and make any order
  which ought to have been passed or made and to pass
  or make such further or other decree or the order, as the
  case may require. The said power is vested in the
D Appellate Court by the statute itself, but the principles
  thereof cannot be brought into play in a matter involving
  a decision under the constitutional provisions of the
  Tenth Schedule to the Constitution, and in particular
  paragraph 6 thereof. [Para 46] [698-H; 699-A-B]
E
       1.4. The High Court assumed the jurisdiction which
  it never had in making the interim order which had the
  effect of preventing the five MLAs in question from
  effectively functioning as Members of the Haryana Vidhan
F Sabha. The direction given by the Single Judge to the
  Speaker, as endorsed by the Division Bench, is, therefore,
  upheld to the extent that it direc~ the Speaker to decide
  the petitions for disqualification of the five MLAs within
  a period of four months. The said direction shall,
G therefore, be given effect to by Spe~ker. The remaining
  portion of the order disqualifying the five MLAs from
  effectively functioning as Members of the Haryana Vidhan
  Sabha is set aside. The said five MLAs would, therefore,
  be entitled to fully function as Members of the Haryana
  Vidhan Sabha without any restrictions, subject to the final
H
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 677
              BISHNOI & o~s.
decision that may be rendered by the Speaker in the          A
disqualification petitions filed under paragraph 6 of the
Tenth Schedule to the Constitution. The Speaker shall
dispose of the pending applications for disqualification
of the five MLAs in question within a period of three
months from the date of communication of this order.         B
[Paras 48, 49) [699-E-H; 700-A-B]

     Raja Soap Factory vs. V. Shantharaj & Ors. 1965(2)
SCR 800; L. Chandra Kumar vs. Union of India (1997) 3 SCC
261; Banarsi vs. Ram Phal (2003) 9 SCC 606: 2003 (2) SCR
22; Kihoto Hoflohan vs. Zachil/hu (1992) Supp. (2) SCC 651: C
1992 (1) SCR 686; Rajendra Singh Raha vs. Swami Prasad
Maurya (2007) 4 SCC 270: 2007 (2) SCR 591; Mayawati vs.
Markandeya Chand & Ors. (1998) 7 SCC 517: 1998 (2)
Suppl. SCR 204; Mahant Dhangir & Anr. vs. Madan Mohan
& Ors. (1987) Supp. SCC 528 and Jagjit Singh vs. State of D
Haryana (2006) 11 SCC 1 - referred to.

                     Case Law Reference:
  1965 (2) SCR 800          referred to    Para 5(c), 25
                                                             E
  (1997) 3 sec 261          referred to    Para 5(c), 34
  2003 (2) SCR 22           referred to    Para 17
  1992 (1) SCR 686          referred to    Para 19,20, 40
                                                             F
  2007 (2) SCR 591          referred to    Para 24, 25, 39
  1998 (2) Suppl. SCR 204 referred to      Para 25, 42
  (1987) Supp. sec 528      referred to    Para 32
  (2006) 11 sec 1           referred to    Para 42           G

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7125 of 2012.

    From the Judgment & Order dated 20.12.2011 of the High
                                                             H
    678      SUPREME COURT REPORTS              [2012] 10 S.C.R.


A   Court of Punjab and Haryana at Chandigarh in Letters Patent
    Appeal No. 366 of 2011 and CWP No. 14194 of 2010.

                                WITH

    C.A. Nos. 7126, 7127 and 7128 of 2012.
B
         Rohinton F. Nariman, S.G.I, Mukul Rohtagi, Nidhesh Gupta,
    Sat Pal Jain, Dr Rajeev Dhawan, Alok Sangwan, Shiel Sethi,
    Devashish Bharuka, Pradeep Dahiya, Jasneet Chandhoke,
    Charu Sangwan, Ruchi Kohli, Shivendra Dwivedi, Nidhi Gupta,
c   Amit Kumar, Tarun Gupta, Aditya K. Chaudhary, lnderpal Goajat
    J. Sen, Sanjai Kumar ,Pathak, Vijendra Kumar, Shaikh Chand
    Saheb, Meenakshi Arora for the Appearing Parties.

          The Judgment of the Court was delivered by

D         ALTAMAS KABIR, J. 1. Leave granted.

        2. The subject matter of challenge in these appeals is the
  final judgment and order dated 20th December, 2011, passed
  by the Punjab & Haryana High Court in the different Letters
E Pate~nt Appeals filed by the Appellants herein.

       3. The first Civil Appeal, arising out of SLP(C)No.54 of
  2012, has been filed by the Speaker of the Haryana Vidhan
  Sabha against the judgment and order passed by the Punjab
  and Haryana High Court in his Letters Patent Appeal No.366
F of 2011. By the said judgment, the Division Bench not only
  dismissed the appeal and did not choose to interfere with the
  directions given by the learned Single Judge to the Speaker
  to decide the petitions for disqualification of five MLAs within
  a period of four months, but in addition, directed that pending
G such decision, the five MLAs in question would stand
  disqualified from effectively functioning as members of the
  Haryana Vidhan Sabha. Aggrieved by the interim directions
  purportedly given under Order 41 Rule 33 of the Code of Civil
  Procedure (C.P.C.), the Speaker filed SLP(C)No.54 of 2012,
H challenging the same.
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 679
      BISHNOI & ORS. [ALTAMAS KABIR, J.]
      4. The other three Special Leave Petitions (now aµpeals)        A
were filed by the five MLAs, who were prevented from
performing their functions as Members of the Assembly by the
directions contained in the impugned judgment and order dated
20th December, 2011. While SLP(C)No.55 of 2012 was filed
by Narendra Singh and another, SLP(C)Nos.59 of 2012 and               B
72 of 2012 were filed by Dharam Singh and another and Zile
Ram Sharma, being aggrieved by the impugned judgment and
order for the same reasons as contained in the Special Leave
Petition filed by Narendra Singh and another. The focal point
of challenge in all these appeals, therefore, is the orders           c
passed by the Division Bench of the Punjab and Haryana High
Court on 20th December, 2011, while disposing of the Letters
Patent Appeals preventing the five named MLAs, who are also
Appellants before us, from effectively discharging their functions
as Members of the Vidhan Sabha. -
                                                                      D
    5. The facts narrated above give rise to the following
substantial questions of law of public importance, namely :-

      (a)   Whether the High Court in exercise of its powers
            under Articles 226 and 227 of the Constitution, has       E
            the jurisdiction to issue directions of an interim
            nature to a Member of the House while a
            disqualification petition of such Member is pending
            before the Speaker of a State Legislative Assembly
            under Article 191 read with the Tenth Schedule to         F
            the Constitution of India?

      (b)   Whether even in exercise of its powers of judicial
            review, the High Court, as a constitutional authority,
            can issue mandatory directions to the Speaker of
            a State Assembly, who is himself a constitutional G
            authority, to dispose of a disqualification petition
            within a specified time?

      (c)   Can the High Court, in its writ jurisdiction, interfere
            with the disqualification proceedings pending             H
    680         SUPREME COURT REPORTS             [2012) 10 S.C.R.


A                before the Speaker and pass an order temporarily
                 disqualifying a Member of the State Legislative
                 Assembly, despite the law laid down by this Court
                 in Raja Soap Factory vs. V. Shantharaj & Ors.
                 [(1965(2) SCR 800] and in L. Chandra Kumar vs.
B                Union of India [(1997) 3 SCC 261 ], to the contrary?

          (d)    When a disqualification petition filed under Article
                 191 read with the Tenth Schedule to the Constitution
                 of India is pending consideration before the
                 Speaker, can a parallel Writ Petition, seeking the
c                same relief, be proceeded with simultaneously?
                 And

          (e)    Did the High Court have jurisdiction to give
                 directions under Order 41 Rule 33 of the Code of
D                Civil Procedure, despite the express bar contained
                 in the Explanaticm to Section 141 of the Code of
                 Civil Procedure, in proceedings under Article 226
                 of the Constitution?

E        6. In order to provide the peg on which the above questions
    are to be hung, it is necessary to understand the background
    in which such substantial questions of law have arisen.

         7. The 12th Legislative Assembly Elections in Haryana
    were held on 13th October, 2009. After the results of the
F   elections were declared on 22nd October, 2009, the Indian
    National Congress Party, hereinafter referred to as 'the INC',
    emerged as the single largest party having won in 40 out of the
    90 seats in the Assembly. Since it was short of an absolute
    majority, the INC formed the Government in collaboration with
G   seven independents and one MLA from the Bahujan Samaj
    Party. Subsequently, on 9th November, 2009, four Legislative
    Members of the Haryana Janhit Congress (BL) Party,
    hereinafter referred to as 'the HJC (BL)', wrote to the Speaker
    of their intention to merge the HJC (BL) with the INC in terms
H   of the provisions of paragraph 4 of the Tenth Schedule to the
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 681
     BISHNOI & ORS. [ALTAMAS KABIR, J.]
Constitution of India. The Speaker was requested to accept the      A
merger and to recognize the applicant legislators as Members
of the INC in the Haryana Vidhan Sabha.

     8. On hearing the four legislators, namely, Shri Satpal
Sangwan, Shri Vinod Bhayana, Shri Narendra Singh and Shri           B
Zile Ram Sharma, who appeared before him, the Speaker by
his order dated 9th November, 2009, accepted the merger with
immediate effect, purportedly in terms of paragraph 4 of the
Tenth Schedule to the Constitution and directed that from the
date of his order the said four legislators would be recognized     C
as legislators of the INC in the Haryana Vidhan Sabha.
Thereafter, a similar request was made to the Speaker by Shri
Dharam Singh, another Member of the Vidhan Sabha elected
as a candidate of the HJC (BL) to recognize the merger of the
HJC (BL) with the INC and to also recognize him, along with
the other four legislators, as Members of the INC in the Haryana    D
Vidhan Sabha. Subsequently, another application was filed by
Shri Dharam Singh before the Speaker on 10th November,
2009, requesting him to be recognized as a part of the INC in
the Haryana Vidhan Sabha. The Speaker by a separate order
dated 10th November, 2009, allowed the said application upon        E
holding that the same was in consonance with paragraph 4(1)
of the Tenth Schedule to the Constitution.

     9. Challenging the aforesaid orders, the Respondent No.1,
Shri Kuldeep Bishnoi, filed five separate petitions before the      F
Speaker under Article 191 read with the Tenth Schedule to the
Constitution of India and the Haryana Legislative Assembly
(Disqualification of Members on Ground of Defection) Rules,
1986, on the ground that they had voluntarily given u_p the
membership of their original political party and had joined the     G
INC in violation of the provisions of paragraph 4(1) of the Tenth
Schedule.

    10. On receipt of the said petitions, the Speaker on 22nd
December, 2009, forwarded copies thereof to the concerned
MLAs. askinQ them to submit their comments within a period          H
    682.    SUPREME COURT REPORTS               (2012] 10 S.C.R.


A of three weeks. On 7th April, 2010, applications were received
  by the Speaker from the concerned MLAs praying for time to
  file their written statement. The matter was accordingly
  adjourned and further time was granted to the concerned MLAs
  to file their explanation. The Respondent No.1, Shri Kuldeep
B Bishnoi, however, filed a Writ Petition, being C.W.P. No.14194
  of 2010, in the Punjab & Haryana High Court, seeking quashing
  of the orders passed by the Speaker on 9th and 10th
  November, 2009, and also for a declaration that the five MLAs
  in question were disqualified from the membership of the
c Haryana Vidhan Sabha, and, in the alternative, for a direction
  on the Speaker to dispose of the disqualification petitions
  within a period of three months. Notice of motion was issued
  to the Respondents on 16th August, 2010, directing them to
  enter appearance and to file their written statements, within
  three days before the next date of hearing fixed on 1st
0
  September, 2010, either in person or through a duly-instructed
  Advocate.

       11. On receipt of notice from the High Court, the Speaker
  by his order dated 30th August, 2010, adjourned the hearing
E of the disqualification petitions sine die. On 20th December,
  2010, the learned Single Judge of the High Court allowed the
  Writ Petition and directed the Speaker to finally decide the
  disqualification petitions pending before him within a period of
  four months from the date of receipt of the certified copy of the
F order, which direction has given rise to the question as to
  whether the High Court in its jurisdiction under Articles 226 and
  227 of the Constitution was competent to issue such a direction
  to the Speaker who was himself a constitutional authority.

       12. In terms of the order passed by the learned Single
G Judge, the date of hearing of the five disqualification petitions
  was fixed for 20th January, 2011, by the Speaker. On the said
  date, Dharam Singh, one of the Appellants before us, filed his
  reply before the Speaker along with an application for striking
  out "the scandalous, frivolous and vexatious" averments made
H
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 683
      BISHNOI & ORS. [ALTAMAS KABIR, J.]
in the disqualification petition. The matters had to be adjourned      A
on the said date till 4th February, 2011, to enable the Writ
Petitioner to file his reply to the said application and for further
consideration.

     13. On the very next day, Letters Patent Appeal No.366            B
of 2011 was filed by the Speaker, challenging the order passed
by the learned Single Judge of the High Court on 20th
December, 2010. On 1st March, 2011, the said LPA was listed
before the Division Bench which stayed the operation of the
judgment of the learned Single Judge. A submission was also            C
made by the learned Solicitor General of India, appearing on
behalf of the Speaker, that every attempt would be made to
dispose of the disqualification petitions as expeditiously as
possible.

      14. Thereafter, the disqualification petitions were taken up     D
for hearing by the Speaker on 1st April, 2011, and the case
was adjourned till 20th April, 2011, for further arguments. On
20th April, 2011, counsel for the parties were heard and order
was reserved on the application under Order 6 Rules 2 and 16
of the Code of Civil Procedure, which had been filed by Shri           E
Dharam Singh. By his order dated 27th April, 2011, the
Speaker dismissed the said application filed by Dharam Singh-
and Shri Kuldeep Bishnoi was directed to file his list of
witnesses along with their affidavits within 15 days from the
date of the order. It was also mentioned in the order that counsel     F
for the Respondents would be given an opportunity to cross-
examine the Writ Petitioner's witnesses. Thereafter, the
Speaker fixed 25th May, 2011, for examination/cross-
examination of Shri Kuldeep Bishnoi, MLA, and his witnesses,
and on the said date Shri Bishnoi's evidence was tendered and          G
recorded. However, his cross-examination could not be
completed and the next date for further cross-examination of
Shri Kuldeep Bishnoi was fixed for 6th June, 2011. In between,
on 2nd June, 2011, the matter came up before the Division
Bench of the High Court when directions were given for hearing
                                                                       H
    684      SUPREME COURT REPORTS                [2012) 10 S.C.R.


A of the petitions at least every week i.e. at least four times in a
  month. However, on account of the sudden demise of
  Chaudhary Bhajan Lal, M.P. and former Chief Minister of
  Haryana, and also the father of Shri Kuldeep Bishnoi, the
  disqualification petitions were adjourned by the Speaker till 20th
B June, 2011. On 21st June, 2011, the Speaker fixed all
  disqualification petitions for hearing on 24th June, 2011 and
  for further cross-examination of Shri Kuldeep Bishnoi. The
  cross-examination of Shri Kuldeep Bishnoi was concluded
  before the Speaker on 7th July, 2011, and 5th August, 2011,
c was fixed for recording the evidence of the MLAs. On 18th July,
  2011, Letters Patent Appeal No.366 of 2011 and other
  connected matters were listed before the Division Bench of the
  High Court. The said Appeal was heard on three consecutive
  days when judgment was reserved.
D        15. In the meantime, proceedings before the Speaker
    continued and since the same were not being concluded in
    terms of the assurances given, the Division Bench of the High
    Court directed the Speaker to file an affidavit on or before 11th
    November, 2011. Finally, being dissatisfied with the progress
E   of the pending disqualification petitions before the Speaker, the
    Division Bench took up the Letters Patent Appeals on 2nd
    December, 2011, when directions were given for production of
    the entire records of the matter pending before the Speaker.
    On 7th December, 2011, the relevant records of the
F   proceedings before the Speaker were submitted to the High
    Court which adjourned the matter till 19th December, 2011, for
    further consideration. However, as alleged on behalf of the
    Appellants, the Bench was not constituted on 19th December,
    2011, and without any further hearing or giving an opportunity
G   to the Speaker's counsel to make submissions on the status
    report, the High Court proceeded to pronounce its judgment on
    the Letters Patent Appeals. By its judgment which has been
    impugned in these proceedings, the Division Bench upheld the
    directions of the learned Single Judge directing the Speaker
H   to decide the disqualification petitions within a period of four
  SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 685
       BISHNOI & ORS. [ALTAMAS KABIR, J.]
  months. However, while disposing of the matter, the Division           A
  Bench stayed the operation of the orders passed by the
  Speaker on the merger of the HJC (BL) with the INC dated 9th
  November, 2009 and 10th November, 2009. It also declared
  the five MLAs, who have filed separate appeals before this
. Court, as being unattached members of the Assembly with the            B
  right to attend the Sessions only. It was directed that they would
  not be treated either as a part of the INC or the HJC(BL) Party,
  with a further direction that they would not hold any office either.
  It is the aforesaid directions and orders which have resulted in
  the filing of the several Special Leave Petitions (now Civil           C
  Appeals) before this Court by the Speaker and the five
  concerned MLAs. As a consequence of the order passed by
  the Division Bench of the High Court, the five independent
  Appellants before us have been prevented from discharging
  their functions as Members of the Haryana Vidhan Sabha, even
  before the disqualification petitions filed against them by Shri       D
  Kuldeep Bishnoi could be heard and decided.

      16. Appearing for the Speaker of the Vidhan Sabha, who
 is the Appellant in the appeal arising out of SLP(C)No.54 of
 2012, Mr. Rohington F. Nariman, Solicitor General of India,             E
 contended that this was not a case where the survival of the
 Government depended upon allegiance of the five MLAs under
 consideration, since the Government was formed with the
 support of seven Independents and one MLA from the Bahujan
 Samaj Party. In fact, the five MLAs, against whom                       F
 disqualification petitions are pending consideration before the
 Speaker, were not part of the Government when it was initially
 formed.

      17. Mr. Nariman contended that the learned Single Judge
 decided the issue of merger in terms of paragraph 4 of the              G
 Tenth Schedule to the Constitution by holding that the two orders
 dated 9th and 10th November, 2009, were not final or conclusive
 and that, in any event, when the disqualification petitions came
 to be decided, it would be open for the Speaker to reconsider
                                                                         H
    686       SUPREME COURT REPORTS               '[2012] 10 S.C.R.


A the issue of merger. The learned Solicitor General emphasized
  thE~ fact that there was neither any appeal nor any cross-
  objection in respect of the aforesaid decision of the learned
  Single Judge and even if the same fell within one of the
  exceptions indicated in Banarsi Vs. Ram Phal [(2003) 9 SCC
B 606], the judgment must still be held to have become final
  between the parties. The learned Solicitor General urged that
  all the decisions which had been cited on behalf of the
  Respondent No.1, were decisions rendered prior to the
  judgment in Banarsi's case (supra). It was, therefore, submitted
C that the decision in Banarsi's case (supra) is the final view in
  regard to the provisions of Order 41 Rule 33 of the Code of
  Civil Procedure.

        18. The learned Solicitor General then challenged the
  orders of the Division Bench of the High Court on the ground
D of violation of the principles of natural justice. It was contended
  that while the High Court had concluded the hearing and
  reserved judgment on 20th July, 2011, by order dated 12th
  October, 2011, it directed the Speaker to place on record the
  status of the proceedings relating to the disqualification
E petitions. Although, the same were duly filed, without giving the
  parties further opportunity of hearing with regard to the said
  records, the Division Bench directed the matter to be listed for
  further consideration on 19th December, 2011. It was submitted
  that though the Bench did not assemble on 19th December,
F 2011, the Division Bench delivered the impugned judgment on
  20th December, 2011, without any further opportunity of hearing
  to the parties.

       19. The learned Solicitor General submitted that the
  procedure adopted was contrary to the law laid down in Kihoto
G Hol/ohan vs. Zachil/hu ((1992) Supp. (2) SCC 651], wherein
  it was stated as under:-

          "110. In view of the limited scope of judicial review that is
          available on account of the finality clause in Paragraph 6
H         and also having regard to the constitutional intendment and
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 687
      BISHNOI & ORS. [ALTAMAS KABIR, J.]
    the status of the repository of the adjudicatory power i.e.     A
    Speaker/Chairman, judicial review cannot be available at
    a stage prior to the making of a decision by the Speaker/
    Chairman and a quia timet action would not be
    permissible. Nor would interference be permissible at an
    interlocutory stage of the proceedings. Exception will,         B
    however, have to be made in respect of cases where
    disqualification or suspension is imposed during the
    pendency of the proceedings and such disqualification or
    suspension is likely to have grave, immediate and
    irreversible repercussions and consequence."                    c
     20. The learned Solicitor General sought to reemphasize
the fact that the present case is not a case involving
disqualification or suspension of a Member of the House by the
Speaker during the pendency of the proceedings, but relates
to disqualification proceedings pending before the Speaker,         D
which were not being disposed of for one reason or the other.
It was submitted that the fact that the Speaker had not finalized
the disqualification petitions for almost a period of two years,
could not and did not vest the High Court with power to usurp
the jurisdiction of the Speaker and to pass interim orders          E
effectively disqualifying the five MLAs in question from
functioning effectively as Members of the House. The learned
Solicitor General urged that the facts of this case would not,
therefore, attract the exceptions carved out in Kihoto Ho/lohan's
case (supra).                                                       F

     21. The learned Solicitor General lastly urged that the
single-most important error in the impugned judgment is that it
sought to foreclose the right of the Speaker to decide the
disqualification petitions under paragraph 4 of the Tenth           G
Schedule. The said decision was also wrong since the Division
Bench chose to follow judgments which related to the concept
of "split" under paragraph 3· of the Tenth Schedule, which today
stands deleted therefrom. The learned Solicitor General
submitted that there was a clear difference between matters         H
    688      SUPREME COURT REPORTS                 [2012] 10 S.C.R.


A relating to the erstwhile paragraph 3 of the Tenth Schedule and
  paragraph 4 thereof. While paragraph 3 of the Tenth Schedule
  required proof of two splits, paragraph 4(2) requires proof of
  only one deemed merger. The learned Solicitor General
  submitted that there was no concept of deemed split in
B paragraph 3. It was submitted that paragraph 4(2) is meant only
  as a defence to a petition for disqualification and the same
  would succeed or fail depending on whether there was a
  deemed merger or not.

        22. It was further submitted that under paragraph 4 of the
C Tenth Schedule, the Speaker was not the deciding authority on
  whether a merger of two political parties had taken place or
  not. It was urged that the expression used in paragraph 4(2) of
  the Tenth Schedule "for the purpose of paragraph 4(1)" clearly
  indicates that the deeming provision is not in addition to, but
D for the purpose of paragraph 4(1), which is entirely different from
  the scheme of paragraph 3 which uses the expression "and",
  thereby indicating that a split takes place only if there is a split
  in the original political party and at least one-third of the
  members of the legislature party also joined in. It was further
E submitted that the use of the expression "if and only if in
  paragraph 4 of the Tenth Schedule is to re-emphasize the fact
  that the Speaker cannot decide whether merger of the original
  party had taken place, as he is only required to decide whether
  merger was a defence in a disqualification petition filed under
F paragraph 6 of the Tenth Schedule.

       23. The learned Solicitor General then urged that the
  submission advanced on behalf of the Respondent No.1 that
  in view of the delay by the Speaker in disposing of the
G disqualification petitions, this Court should decide the same,
  was wholly misconceived, since it pre-supposes the vesting of
  power to decide such a question on the Court, though the same
  is clearly vested in the Speaker. Even otherwise, in the
  absence of any Special Leave Petition by the Respondent
H No.1, the most that could be done by this Court would be to
  dismiss the Special Leave Petition.
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 689
      BISHNOI & ORS. [ALTAMAS KABIR, J.]
     24. Distinguishing the various decisions cited before the A
Division Bench on behalf of the Respondent No.1, and, in
particular, the decision in Rajendra Singh Rana vs. Swami
Prasad Maurya [(2007) 4 SCC 270], the learned Solicitor
General submitted that in the said case, the life of the Assembly
was almost over, whereas in the present case the next election B
would be held only in October, 2014. Furthermore, the same
was a judgment where the final orders passed by the Speaker
on the disqualification petitions were under challenge, unlike in
the present case where the disqualification petitions are still
pending decision with the Speaker.                               c
      25. The learned Solicitor General submitted that if the
decision in Rajendra Singh Rana's case (supra) which, inter
alia, dealt with the question relating to the Speaker's powers .
to decide a question in respect of paragraph 4 of the Tenth
Schedule independent of any application under paragraph 6 D
thereof, is to be made applicable in the facts of this case, the
same would be contrary to the decision of this Court in Raja
Soap Factory vs. S.P. Shantharaj [(1965) 2 SCR 800]. The
learned Solicitor General also made special reference to the
decision of this Court in Mayawati vs. Markandeya Chand & E
Ors. [(1998) 7 SCC 517], wherein it was, inter alia, held that if
the order of the Speaker disqualifying a Member was to be set
aside, the matter had to go back to the Speaker for a fresh
decision, since it was not the function of this Court to substitute
itself in place of the Speaker and decide the question which F
had arisen in the case.

    26. In addition to his aforesaid submissions, the learned
Solicitor General also submitted that various substantial
questions of law in regard to the interpretation of the G
Constitution, had arisen in the facts of the present case, namely,

      (a)   Whether paragraph 4 of the Tenth Schedule to the
            Constitution, read as a whole, contemplates that
            when at least two-thirds of the members of the
            legislature party agree to a merger between one      H
    690         SUPREME COURT REPORTS              [2012j 10 S.C.R.


A                political party and another, only then there is a
                 "deemed merger'' of one original political party with
                 another?

          (b)    Whether in view of the difference in language
                 between paragraphs 3 and 4 of the Tenth Schedule,
B
                 a deemed merger is the only thing to be looked at
                 as opposed to a "split" which must be in an original
                 political party cumulatively with a group consisting
                 of not less than one third of the members of the
                 legislature party?
c
          (c)     Whether post-merger, those who do not accept the
                  merger are subject to the anti-defection law
                  prescribed in the Tenth Scheudle?

D         (d)    Whether there is a conflict between the five-judge
                 Benches in Rajendra Singh Rana v Swami Prasad
                 Maurya, (2007) 4 SCC 270 as against Kihoto
                 Hollohan, 1992 Supp (2) SCC 651 and Supreme
                 Court Advocate-on-Record Association case,
                 (1988) 4 sec 409?
E
          (e)    What is the status of an 'unattached' Member in
                 either House of Parliament or in the State
                 Legislature? [already under reference to a larger
                 Bench in Amar Singh v Union of India, (2011) 1
F                sec 2101?
          (f)    Whether in view of Article 212(2) of the Constitution
                 of India, if a Speaker of a State Legislature fails to
                 decide a Petition for disqualification, he would not
                 be subject to the jurisdiction of any Court?
G
          (g)    Whether the Speaker, while exercising original
                 jurisdiction/powers in a disqualification petition
                 under Para 6(1) of the Tenth Schedule to the
                 Constitution of India, has power to pass interim
H                orders?
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 691
      BISHNOI & ORS. [ALTAMAS KABIR, J.]

     27. According to the learned Solicitor General, the          A
aforesaid questions, which involved interpretation of the
Constitution, were required to be decided by a Bench of not
less than 5 Judges in view of the constitutional mandate in
Article 145(3} of the Constitution, before a final decision was
taken in these appeals.                                           B

     28. Appearing for Shri Kuldeep Bishnoi, the Respondent
No.1 in the appeals preferred by the Speaker, Haryana Vidhan
Sabha, and the five MLAs, against whom disqualification
proceedings were pending, Mr. Nidhesh Gupta, learned Senior C
Advocate, at the very threshold of his arguments submitted that
this was a case which clearly demonstrated how the process
of law was being misapplied and misused by the Speaker of
the Haryana Vidhan Sabha, so as to defeat the very purpose
and objective of the anti-defection law as contained in the Tenth
Schedule to the Constitution. Mr. Gupta emphasized in great D
detail the manner in which the Speaker had deferred the
hearing of the disqualification petitions filed by the Respondent
No.1 against the five MLAs, on one pretext or the other, despite
the fact that the applications for disqualification under paragraph
4(2) of the Tenth Schedule to the Constitution had been made E
as far back as on 9th December, 2009.

     29. Mr. Gupta submitted that till today, the said
disqualification applications are pending decision before the
Speaker and since such delay in the disqualification F
proceedings was against the very grain and object of the Tenth
Schedule to the Constitution, the Division Bench of the High
Court had no other option but to pass appropriate orders by
invoking jurisdiction under Order 41 Rule 33 of the Code of Civil
Procedure. In effect, the entire burden of Mr. Gupta's G
submissions was directed against the prejudice caused to the
Respondent No.1 on account of the inaction on the part of the
Speaker in disposing of the pending disqualification petitions
within a reasonable time. Mr. Gupta sought to justify the
impugned order passed by the Division Bench of the High Court H
    692        SUPREME COURT REPORTS                [2012] 10 S.C.R.


A   on the ground that on account of the deliberate delay on the
    part of the Speaker in allowing the five dissident MLAs from
    continuing to function as Members of the House despite their
    violation of the provisions of paragraph 4(4) of the Tenth
    Schedule to the Constitution, the High Court in exercise of its
B   appellate powers under Order 41 Rule 33 of the Code of Civil
    Procedure gave interim directions so as to ensure that the
    Petitioner before the Speaker was non-suited on account of the
    Speaker's attempts to delay the disqualification of the said five
    ML.As.
c       30. Mr. Gupta submitted that by virtue of the interim order
   passed by the Division Bench of the High Court under Order
  41 Rule 33 of the C~de of Civil Procedure, hereinafter referred
  to as "CPC", the High Court merely suspended the said
   Members from discharging all their functions as Members of
D the House, without touching their membership. He submitted
  that such a course of action was the only remedy available to
  the High Court to correct the deliberate and willful attempt by
  the Speaker to subvert the very essence of the Tenth Schedule
  to the Constitution.
E
        31. For all the submissions advanced by Mr. Gupta, the
  main weapon in his armoury is Order 41 Rule 33 CPC. The
  same is only to be expected, since no final order had been
  passed by the Speaker on the disqualification petitions, which
F would have entitled the High Court to pass interim orders in
  exercise of its powers under Article 226 and 227 of the
  Constitution, since it is only the Speaker, who under paragraph
  6 of Tenth Schedule to the Constitution, is entitled to decide
  questions in regard to disqualification of a Member of the
G House on the ground of defection. Furthermore, all the different
  cases cited by Mr. Gupta relate to proceedings taken against
  final orders passed by the respective Speakers and the width
  of the jurisdiction of the High Court under Articles 226 and 227
  of the Constitution.

H         32. Mr. Gupta dealt separately with the law relating to Order
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 693
     BISHNOI & ORS. [ALTAMAS KABIR, J.]
41 Rule 33 CPC in support of his contention that under the said     A
provision, the High Court was competent to pass interim orders
effectively disqualifying a Member of the House,
notwithstanding the provisions of paragraph 6 of Tenth Schedule
to the Constitution. Mr. Gupta has relied heavily on the decision
of this Court in Mahant Dhangir & Anr. vs. Madan Mohan &            B
Ors. [(1987) Supp. SCC 528] wherein, while considering the
width of Order 41 Rule 33 CPC, this Court was of the view that
a litigant should not be left without remedy against the judgment
of a learned Single Judge and that if a cross-objection under
Rule 22 of Order 41 CPC was not maintainable against the co-        c
respondent, the Court could consider it under Rule 33 of Order
41 CPC. This Court held that Rules 22 and 33 are not mutually
exclusive, but are closely related to each other. If objection
could not be taken under Rule 22 against the co-respondent,
Rule 33 could come to the rescue of the objector. It was also       D
observed that "the sweep of the power under Rule 33 is wide
enough to determine any question, not only between the
appellant and respondent, but also between the respondent and
co-respondents. The appellate court could pass any decree or
order which ought to have been passed in the circumstances
of the case. n                                                      E

     33. Mr. Gupta urged that the law, as declared by this Court,
indicates that under Order 41 Rule 33 CPC, this Court as an
appellate Court, has power to pass any decree or make any
order which ought to have been passed or make such further          F
decree or order as the case may require.

     34. Mr. Gupta also referred to the Constitution Bench
decision of this Court in L. Chandra Kumar vs. Union of India
[(1997) 3 sec 261], in which the Bench was considering the          G
question as to whether under clause 2(d) of Article 323-A, the
jurisdiction of all Courts, except the jurisdiction of this Court
under Article 136 of the Constitution, was excluded.

    35. The very foundation of Mr. Gupta's submissions is
based upon Order 41 Rule 33 CPC which ordinarily empowers           H
    694     SUPREME COURT REPORTS               [2012] 10 S.C.R.


A the Civil Court to pass any interim order in appeal. What we
  are, however, required to consider in these appeals is whether
  such jurisdiction could at all have been invoked by the High
  Court when no final order had been passed by the Speaker on
  the disqualification petitions.
B
       36. Mr. Gupta lastly urged that the ground relating to the
  mala tides of the Speaker's inaction in delaying the final
  decision in the disqualification proceedings, had not been given
  up finally, as the very conduct of the Speaker revealed such
C ma!a tides at almost every stage of the pending proceedings.

      37. While adopting the submissions made by the Solicitor
  General, Mr. K.K. Venugopal and Mr. Mukul RohatgL_ learned
  senior counsel, appearing for the Appellants in the other
  appeals, submitted that the order of the Division Bench would
D have far-reaching consequences since the power to decide all
  matters relating to disqualification of Members of the
  Legislative Assembly were vested in the Speaker under
  paragraph 6 of the Tenth Schedule to the Constitution.

E       38. During the pendency of the Special Leave Petitions,
  I.A. ·Nos.2 and 3 were filed in Special Leave Petition (Civil)
  No.54 of 2012 by S/Shri Ajay Singh Chautala and Sher Singh
  Barshami, both MLAs in the Haryana Vidhan Sabha. A further
  application, being I.A. No.4 of 2012, was filed by one Shri
  Ashok Kumar Arora, who is also an MLA of the Haryana Vidhan
F Sabha. The prayer in all the said applications was for leave to
  intervene in the Special Leave Petition filed by the Speaker of
  the Haryana Vidhan Sabha. The same were allowed by Order
  dated 28th February, 2012.

G       39. Pursuant to the said order, Dr. Rajeev Dhawan,
  learned senior counsel, appeared for Shri Ajay Singh Chautala
  and the other interveners and urged that the orders passed by
  the Speaker on 9th and 10th November, 2009, were void ab-
  initio and in excess of jurisdiction. However, in the lengthy
H submissions advanced by Dr. Dhawan in relation to the
 SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 695
      BISHNOI & ORS. [ALTAMAS KABIR, J.]
provisions of erstwhile paragraph 3 and paragraph 4 of the Tenth      A
Schedule to the Constitution, reference was made to various
decisions of this Court, including that in Rajendra Singh Rana's
case (supra). The same are, however, all based on decisions
taken by the Speaker on the question of "split" or "merger",
while in the instant case we are concerned with the inaction of       B
the Speaker in disposing of the disqualification petitions filed
by the Respondent No.1 and the jurisdiction of the High Court
to issue interim orders restraining a Member of the House from
discharging his functions as an elected representative of his
constituents despite the provisions of paragraph 6 of the Tenth       c
Schedule to the Constitution.

     40. Most of the questions raised by Mr. Nidhesh Gupta and
Dr. Rajeev Dhawan contemplate a situation where the Speaker
had taken a final decision on a disqualification petition.
However, in the instant case we are really required to consider       D
whether the High Court was competent to pass interim orders
under its powers of judicial review under Articles 226 and 227
of the Constitution when the disqualification proceedings were
pending before the Speaker. In fact, even in Kihoto Hollohan's
case (supra), which has been referred to in extenso by Dr.            E
Dhawan, the scope of judicial review has been confined to
violation of constitutional mandates, mala fides, non-
compliance with rules of natural justice and perversity, but it was
also very clearly indicated that having regard to the
constitutional scheme in the Tenth Schedule, normally judicial        F
review could not cover any stage prior to the making of the
decision by the Speaker or the Chairman of the House, nor any
quia timet action was contemplated or permissible.

      41. From the submissions made on behalf of the                  G
respective parties, certain important issues emerge for
consideration. One of the said issues raised by Mr. Nidhesh
Gupta concerns the competence of the High Court to assume
jurisdiction under Order 41 Rule 33 CPC when disqualification
petitions were pending before the Speaker and were yet to be          H
    696      SUPREME COURT REPORTS                [2012] 10 S.C.R.


A disposed of. Another important issue which arises, de hors the
  submissions made on behalf of the respective parties, is
  whether the question of disqualification on account of merger,
  which had been accepted by the Speaker, could have been
  entertained by the Speaker under paragraph 4 of The Tenth
B Schedule, when such powers were vested exclusively in the
  Speaker under paragraph 6 thereof.

       42. Relying on the decisions of this Court in Kihoto
  Hollohan's case (supra), Jagjit Singh Vs. State of Haryana
  [(2006) 11 SCC 1] and Mayawati's case (supra), the learned
C Single Judge came to the conclusion that while passing an
  order under paragraph 4 of the Tenth Schedule to the
  Constitution, the Speaker does not act as a quasi-judicial
  authority and that such order would necessarily be subject to
  adjudication under paragraph 6.
D
          43. Accordingly, the main challenge to the impugned
    decision of the Division Bench of the Punjab & Haryana High
    Court is with regard to the competence of the Speaker of the
    Assembly to decide the question of disqualification of the
E Members of the Haryana Janhit Congress (BL) Party on their
    joining the Indian National Congress Party on the basis of the
    letters written by the five Members of the former legislature
    party. Incidentally, the learned Single Judge held that the issue
    would have to be decided by the Speaker himself while
F considering the disqualification petitions under paragraph 6 of
    the Tenth Schedule to the Constitution. What is important,
    however, is the question as to whether such a decision could
    be arrived at under paragraph 4 of the Tenth Schedule to the
    Constitution whereunder the Speaker has not been given any
G authority to decide such an issue. Paragraph 4 merely indicates
    the circumstances in which a Member of a House shall not be
    disqualified under Sub-paragraph (1) of Paragraph 2. One of
  . the circumstances indicated is where the original political party
    merges with another political party and the Member claims that
H he and any other Member of his original political party have
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP                        697
     BISHNOI & ORS. [ALTAMAS KABIR, J.]
become Members of such other political party, or, as the case          A
may be, of a new political party formed by such merger. As
stressed by the learned Solicitor General, for the purpose of
sub-paragraph (1 ), the merger of the original political party of
a Member of the House, shall be deemed to have taken place
if, and only if, not less than two-thirds of the Members of the        B
legislature party concerned agreed to such merger. In other
words, a formula has been laid down in paragraph 4 of the Tenth
Schedule to the Constitution, whereby such Members as came
within such formula could not be disqualified on ground of
defection in case of the merger of his original political party with   c
another political party in the circumstances indicated in
paragraph 4(1) of the Tenth Schedule to the Constitution.

     44. The scheme of the Tenth Schedule to the Constitution
indicates that the Speaker is not competent to take a decision
with regard to disqualification on ground of defection, without        D
a determination under paragraph 4, and paragraph 6 in no
uncertain terms lays down that if any question arises as to
whether a Member of the House has become subject to
disqualification, the said question would be referred to the
Speaker of such House whose decision would be final. The               E
finality of the decisions of the Speaker was in regard to
paragraph 6 since the Speaker was not competent to decide
a question as to whether there has been a split or merger under
paragraph 4. The said question was considered by the
Constitution Bench in Rajendra Singh Rana's case (supra).              F
While construing the provisions of the Tenth Schedule to the
Constitution in relation to Articles 102 and 191 of the
Constitution, the Constitution Bench observed that the whole
proceedings under the Tenth Schedule gets initiated as a part
of disqualification proceedings. Hence, determination of the           G
question of split or merger could not be divorced from the
motion before the Speaker seeking a disqualification of the
Member or Members concerned under paragraph 6 of the Tenth
Schedule. Under the scheme of the Tenth Schedule the Speaker
does not have an independent power to decide that there has            H
    698      SUPREME COURT REPORTS                 [2012] 10 S.C.R.

A been split or merger as contemplated by paragraphs 3 and 4
  respectively and such a decision can be taken only when the
  question of disqualification arises in a proceeding under
  paragraph 6. It is only after a final decision is rendered by the
  Speaker under paragraph 6 of the Tenth Schedule to the
B Constitution that the jurisdiction of the High Court under Article
  226 of the Constitution can be invoked.

        45. We have to keep in mind the fact that these appeals
   are being decided in the background of the complaint made
  to the effect that interim orders have been passed by the High
C Court in purported exercise of its powers to judicial review under
  Articles 226 and 227 of the Constitution, when the
  disqualification proceedings were pending before the Speaker.
   In that regard, we are of the view that since the decision of the
  Speaker on a petition under paragraph 4 of the Tenth Schedule
D concerns only a question of merger on which the Speaker is
  not entitled to adjudicate, the High Court could not have
  assumed jurisdiction under its powers of review before a
  decision was taken by the Speaker under paragraph 6 of the
   Tenth Schedule to the Constitution. It is in fact in a proceeding
E under paragraph 6 that the Speaker assumes jurisdiction to
  pass a quasi-judicial order which is amenable to the writ
  jurisdiction of the High Court. It is in such proceedings that the
  question relating to the disqualification is to be considered and
  decided. Accordingly, restraining the Speaker from taking any
F decision under paragraph 6 of the Tenth Schedule is, in our
  view, beyond the jurisdiction of the High Court, since the
  Constitution itself has vested the Speaker with the power to
  take a decision under paragraph 6 and care has also been
  taken to indicate that such decision of the Speaker would be
G final. It is only thereafter that the High Court assumes jurisdiction
  to examine the Speaker's order.

        46. The submissions made by Mr. Nidhesh Gupta relating
    to Order 41 Rule 33, in our view, are not of much relevance on
    account of what we have indicated hereinabove. Order 41 Rule
H
SPEAKER HARYANA VIDHAN SABHA v. KULDEEP 699
     BISHNOI & ORS. [ALTAMAS KABIR, J.]
33 vests the Appellate Court with powers to pass any decree           A
and make any order which ought to have been passed or made
and to pass or make such further or other decree or the order,
as the case may require. The said power is vested in the
Appellate Court by the statute itself, but the principles thereof
cannot be brought into play in a matter involving a decision          B
under the constitutional provisions of the Tenth Schedule to the
Constitution, and in particular paragraph 6 thereof.

     47. The appeal filed by the Speaker, Haryana Vidhan
Sabha, against the judgment of the Division Bench of the High         C
Court, is not, therefore, capable of being sustained and the
Appeal filed by the Speaker is accordingly dismissed. The
other Appeals preferred by the five disqualified MLAs have,
therefore, to be allowed to the extent of the directions given by
the learned Single Judge and endorsed by the Division Bench
that the five MLAs would stand disqualified from effectively          D
functioning as Members of the Haryana Vidhan Sabha till the
Speaker decided the petitions regarding their disqualification,
within a period of four months.

     48. In our view, the High Court had no jurisdiction to pass      E
such an order, which was in the domain of the Speaker. The
High Court assumed the jurisdiction which it never had in
making the interim order which had the effect of preventing the
five MLAs in question from effectively functioning as Members
of the Haryana Vidhan Sabha. The direction given by the               F
learned Single Judge to the Speaker, as endorsed by the
Division Bench, is, therefore, upheld to the extent that it directs
the Speaker to decide the petitions for disqualification of the
five MLAs within a period of four months. The said direction
shall, therefore, be given effect to by Speaker. The remaining        G
portion of the order disqualifying the five MLAs from effectively
functioning as Members of the Haryana Vidhan Sabha is set
aside. The said five MLAs would, therefore, be entitled to fully
function as Members of the Haryana Vidhan Sabha without any
restrictions, subject to the final decision that may be rendered      H
    700      SUPREME COURT REPORTS                [2012] 10 S.C.R.


A   by the Speaker in the disqualification petitions filed under
    paragraph 6 of the Tenth Schedule to the Constitution.

         49. The Speaker shall dispose of the pending applications
    for disqualification of the five MLAs in question within a period
8   of three months from the date of communication of this order.

         50. Having regard to the peculiar facts of the case, the
    parties shall bear their own costs.

    B.B.B.                                   Appeals disposed of.