BHAJAMAN BOBERA Vs. SPEAKER ORISSA LEGISLATIVE ASSEMBLY

JUDGEMENT

(1.) This writ application was listed before a larger Bench for consideration of its admission, in view of the fact that an important question regarding the jurisdiction of this Court to entertain a petition to decide the validity of a proceeding in the Legislature of a State on the ground of alleged irregularity was raised. The petitioner, a Member of the Orissa Legislative Assembly, was served with notice (Annexure-1) along with the enclosures and was requested to offer his comments within seven days from the date of the receipt of the said notice. The enclosure was a petition by another member of the Legislative Assembly filed under the provisions of the Members of Orissa Legislative Assembly (Disqualification on ground of Defection) Rules, 1987 (hereinafter referred to as the "Rules"). The petitioner did not offer any comments within the time as stipulated under Annexure-1. The petitioner then received another letter under Annexure-3, whereunder he was intimated that the Committee of Privileges had decided to examine him on matters arising out of a petition filed by Shri Satya Bhusan Sahu, a Member of the Orissa Legislative Assembly, against the petitioner. The petitioner then filed a petition before the Speaker as per Annexure-4 contending that the reference made by the Speaker to the Committee of Privileges was illegal and not in accordance with law, inasmuch as it was not in accordance with the procedure laid down in R.7 of the Rules and also contended that the petition filed by Shri Satya Bhusan Sahu was not maintainable. The petitioner asserts that to the best of his knowledge, the Speaker sent a note to opposite party No. 4, the Committee of Privileges, indicating that the issues raised by the petitioner could be gone into by the said opposite party No. 4 in the process of proceedings. The petitioner thereafter also appeared before opposite party No. 4 and contended that the application filed by Shri Sahu was not maintainable and the; Committee had no jurisdiction to determine the issue. When the Committee continued its proceedings, the petitioner approached this Court for the following reliefs :-

(2.) Mr. Das, the learned Counsel for, the petitioner, contends that the petition filed by Sri Sahu being addressed to the Secretary and not to the speaker as required under R. 6 of the Rules is illegal and thus not maintainable. He further contends that the speaker had no jurisdiction to refer the matter to the Committee for making a preliminary enquiry under sub-rule (4) of R.7 since the prior stages contained in sub-rules (1), (2) and (3) have not been complied with. On the question of constitutional validity, Mr. Das urges that the Tenth Schedule of the Constitution violates the basic structure of the Constitution and is repugnant to Art.388 and, therefore, must be struck down. On the question whether a petition is maintainable in view of Art.212 of the Constitution, the learned Counsel cites a number of authorities and strongly relies upon the decision of the Punjab and Haryana High Court in the case of Prakash Singh Badal v. Union of India, AIR 1987 Punj and Har 263 (Full Bench) and another decision of the Supreme Court in the case of In re, under Art.143, Constitution of India, AIR 1965 SC 745.

(3.) Paragraph 6 of the Tenth Schedule to the Constitution vests the power with the Speaker of the State Legislature to determine the question whether a member has become subject to disqualification. Para 6(2) of the Tenth Schedule unequivocally states that a proceeding under para 6(1) shall be deemed to be a proceeding in the Legislature of the State within the meaning of Art.212. Article 212(1) of the Constitution prohibits scrutiny by Court with regard to the validity of any proceeding in the Legislature of a State on the ground of irregularity of procedure. Article 212(2) makes an officer or member of the Legislature of a State immune from the jurisdiction of the Court on whom powers are vested by or under the Constitution in respect of exercise of those powers by him. In view of para 6(2) of the Tenth Schedule, the impugned proceedings against the petitioner must be held to be a proceeding in the Legislature of the State, within the meaning of Art.212 of the Constitution and, therefore, the bar of jurisdiction contained in Ant. 212 of the Constitution would apply. Mr. Das appearing for the petitioner concedes that the speaker has the jurisdiction to decide the question of disqualification of a Member of the Legislative Assembly, but he contends that the infirmities pointed out by him make the proceeding illegal inasmuch as the procedure laid down by law has not been followed and, therefore, this Court will have jurisdiction to entertain and decide the matter. According to Mr. Das, the infirmities are that the petition was addressed to the Secretary and that the Speaker referred the matter to the Committee of Privileges without following the procedure contained in R. 7(2) and (3) of the Rules. It is also not disputed by Mr. Das that though the application was addressed to the Secretary, yet it is the Speaker who is in seisin of the matter and has referred the same to the Committee. In my considered opinion, the alleged infirmities are pertaining to the procedure in relation to a proceeding inside the Legislature of a State since the disqualification proceeding by operation of Constitutional provision has been deemed to be a proceeding inside the Legislature of a State. That being so, the Court will have no jurisdiction to go into the question of validity of such proceeding which is within the special jurisdiction of the Legislature itself. It would be sufficient for the purpose of this case to notice an observation of the Supreme Court in this connection in the case of M.S.M.Sharma v. Dr. Shree Krishna Sinha, AIR 1960 SC 1186, which is as follows (Paragraph 10) :-