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principles of natural justice

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writ not maintainable in respect of any property under wakf act=The Act itself provides for an alternative remedy by way of a suit before the Wakf Tribunal constituted under Section 83 of the Act for redressal of any grievance against notice issued under Section 54(3) of the Act. When there are several factual disputes staring in this case as indicated above, it is for the petitioners to approach the Tribunal for redressal by way of filing a civil suit by raising all contentions and inviting the Tribunal for decision on all those factual disputes by leading oral and documentary evidence in support of them. I do not find any valid or legal reasons to entertain this writ petition. =3) Section 54(4) of the Act reads as follows: “(4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property.”

IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.67 of 2012   DATE: 27.01.2012   Between: Pangaluri Nageswara Rao and 2 others                                              …… Petitioners And The Chief Executive Officer, A.P.State Wakf Board and 2 others …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No.67 of 2012 ORDER : … Continue reading

Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband’s petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-“Court of competent jurisdiction”-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud’-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression “Certified copy of a foreign judgment”-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-“Competent court”-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases “Residence-Meaning of”. = The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows; (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] =, 1991( 2 )SCR 821, 1991( 3 )SCC 451, 1991( 2 )SCALE1 , 1991( 3 )JT 33

PETITIONER: Y. NARASIMHA RAO AND ORS. Vs. RESPONDENT: Y. VENKATA LAKSHMI AND ANR. DATE OF JUDGMENT09/07/1991 BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ) CITATION: 1991 SCR (2) 821 1991 SCC (3) 451 JT 1991 (3) 33 1991 SCALE (2)1 ACT: Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should … Continue reading

what is the suppression of material fact ?=Constitution of India, 1950: Article 226-Exercise of jurisdiction under-Suppression of material fact by petitioner-Writ petition filed suppressing the fact of filling of suit in District Court and non-granting of interim injunction-However, after filing the writ petition suit was withdraw-High Court declining to entertain the writ petition-Held, though appellant had suppressed a material fact and High Court may be correct that in a case of this nature, Court’s jurisdiction may not be invoked, however, suppression of filing of the Suit is no longer a material fact, and incase another writ petition is filed disclosing all the facts, Court, at that point of time, will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is basic feature of the Constitution-Judgment of the High Court, on facts, shall not operate as res judicata-Judgment Review-Human Right of access to justice-Res judicata. Maxim-Ubi jus ibi remedium-Applicabilitty of. Words and Phrases: `Material facts’-Meaning of in the context of Court’s refusal to exercise its discretionary jurisdiction on petitioner suppressing material facts. Services of appellant, who was a confirmed employee of Indian Council for Child Welfare, a Society registered under the Societies Registration Act, were terminated. She challenged the said order by filing a suit in the District Court with an application for an ad interim injunction. The court notice but granted no ad interim injunction. Soon thereafter, the appellant filed a writ petition in the High Court challenging the termination order. In the Writ petition pendency of the suit was not disclosed. She filed an application for withdrawal of the suit and the District Court permitted the Suit to be withdrawn. Later, a Single Judge of the High Court, declined to entertain the writ petition on the ground of concealment of material fact by the writ petitioner. The intra-court appeal having been dismissed by a Division Bench of the High Court, the Writ petitioner filed the present appeal. On the question : how far and to what extent suppression of fact by court appeal having been dismissed by a Division Bench of the High Court, the writ petitioner filed the present appeal. =Dismissing the appeal, the Court HELD: 1.1. On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. A person who has a grievance against a State, a forum must be provided for redressal thereof. The court’s jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands, but to what extent such relief should be denied is to be considered. [Para 10] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166; Dwarka Prasad Agarwal (D) by Lrs. and Anr. v. B.D. Agarwal & Ors., [2003] 6 SCC 230; Bhagubhai Dhanabhai Khalasi & Anr. v. The State of Gujarat & Ors., [2007] 5 SCALE 357; Zee Telefilms Ltd. v. Union of India, [2005] 4 SCC 649 and Hatton & Ors. v. United Kingdom, 15 BHRC 259, relied on. Hatton & Ors. v. United Kingdom, 15 BHRC 259, referred to. 1.2. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. [Para 11] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166, relied on. 1.3. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But when the said dirt is removed and the court is approached with clean hands. The court at that point of time will be entitled to determine the case on merits. [Para 11] Jai Narain Parasrampuria (D) and Ors. v. Pushpa Devi Saraf and Ors., [2006] 7 SCC, relied on. Moody v. Cox, (1917) 2 Ch 71, referred to. Halsbury’s Laws of England, Fourth Edn., Vol. 16, pg.874-876 and Equitable Remedies, Fourth Edn., pg. 5 by Spry, referred to. 2.1. Further, the court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. But, where one proceedings has been terminated without determination of the lis, it cannot be said that the disputant shall be without a remedy. [Para 18] Jain Singh v. Union of India and Ors., [1997] 1 SCC 1 and M/s. Tilokchand and Motichand & Ors. v. H.B. Munshi and Anr., [1969] 1 SCC 110,, relied on. 2.2. Existence of an alternative remedy by itself, may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction, but it is another thing to say that the court refuses to do so on the ground of suppression of facts. Ubi jus ibi remedium is a well known concept. A person who comes with a genuine grievance in an arguable case should be given a hearing. [Para 20 and 21] 3. In the instant case, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact. The Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court’s jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India, The judgment of the High Court, in a case of this nature, shall not operate as a res judicata. [Para 21 and 23] Lata Krishnamurthy, Rekha Pandey, Saurabh Ajay Gupta and Raj Kumar Tanwar for the Appellant. Nikhil Nayyar and Ankit Singhal for the Respondents.=, 2007(5 )SCR904 , 2007(6 )SCC120 , 2007(6 )SCALE293 ,

CASE NO.: Appeal (civil) 2205 of 2007 PETITIONER: Arunima Baruah RESPONDENT: Union of India & Ors DATE OF JUDGMENT: 27/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 2205 OF 2007 [Arising out of SLP (Civil) No. 9283 of 2006] S.B. SINHA, J : Leave … Continue reading

the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘SARFAESI Act’).=The fact remains that the petitioner did not repay the outstanding dues of Rs.17.5 lakhs as on date and therefore, the impugned sale notices have been issued. Once the provisions of Section 13(4) of SARFAESI Act have been followed, the petitioner cannot find fault with the subsequent events, as it is for the petitioner to deliver possession or the only course open to the bank is to seek assistance from either the Chief Metropolitan Magistrate or District Magistrate. In the instant case, as the petitioner failed to deliver possession, the bank took possession of the property with the assistance of the District Collector by break opening the lock on 16.02.2009 under the cover of panchanama with regard to the inventory of immovable property, which also cannot be found fault with. – in view of the default, the respondent bank issued notice dated 08.09.2007, under Section 13(2) of the SARFAESI Act, which was acknowledged by the petitioner on 20.09.2007. It is stated that the petitioner did not give any explanation nor did he respond to the said notice and therefore, the possession notice dated 14.11.2008, under Section 13(4) read with Rule 8(1) was sent to the petitioner and he acknowledged the same on 20.11.2008. The possession notice dated 14.11.2008 was also published in Indian Express dated 25.12.2008. 4. The aforesaid averments have neither been contraverted nor the petitioner has filed any reply, therefore, it cannot be said that the procedure under Section 13 of SARFAESI Act has not been followed. Admittedly, the petitioner received Section 13(2) notice on 20.09.2007 and Section 13(4) notice was also received on 28.11.2008 but so far no action has been taken. If the procedure under Section 13 of SARFAESI Act is not followed, the course open to the petitioner is to approach the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. As the procedure under Section 13 of SARFAESI Act has become final and as the petitioner neither paid the debt amount nor handed over the possession, the bank has to take recourse to Section 14 of SARFAESI Act. Under Section 14 of the SARFAESI Act it is open to the secured creditor to seek assistance of the Chief Metropolitan Magistrate or District Magistrate in taking possession of the secured asset. In the instant case, the District Collector being the District Magistrate his assistance was taken. Accordingly, the District Collector had passed orders dated 06.01.2009 and 19.01.2009 directing the SDPO, Amalapuram to provide necessary security while taking possession of the above said property.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH  AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON’BLE MR JUSTICE V.ESWARAIAH AND  THE HON’BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No: 3786 of 2009 BETWEEN:      Sagi Venkata Rama Gopala Krishnam Raju (Hindu) S/o. Narasimha      Raju, R/o. … Continue reading

Constitution of India, 1950-Tenth Schedule Paras 2 (1) (a) and (2) 3 and 8-Members of Legislative Assembly-Four were elected as independent members and two were sole members of their respective political parties-Complaint of defection to another political party-Speaker of the assembly relying on the statements of the members in electronic media, disqualified them from membership of the Assembly-Members declined to watch the recording in order to point out doctoring therein-Members sought permission to cross-examine and lead evidence-Denial thereof-Orders of disqualification challenged on the ground of violation of principles of Natural Justice and malafide-Held: In the facts and circumstances of the case mere denial to cross examine and adduce evidence may not automatically lead to violation of principles of Natural Justice-On the facts plea of malafide not acceptable-A member cannot be permitted to get away with defection on the ground of mere technicalities-Order of the speaker not illegal and unreasonable-The independent members have incurred disqualification under Para 2 (2)-To determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party but that he has given up his independent status-Protection of Para 3 is not applicable to a single member party-Burden to prove the requirement of Para 3 is on the member who seeks protection thereunder-Members of political parties having failed to prove the split in their respective parties, not entitled to protection under Para 3-Evidence-Burden to prove-Haryana Legislative Assembly (Disqualification of Member on ground of Defection) Rules, 1986. Election Law-Defection Law-Object of-Discussed. Evidence-Admission-Evidentiary value of-Held: Admission is best evidence-Though conclusive it is decisive of the matter unless successfully withdrawn or proved erroneous. Judicial Review-Scope of-In cases of disqualification of members of Legislative Assembly-Held: Speaker, while exercising power to disqualify members acts as a Tribunal-Validity of such orders can be challenged on the ground of ultra vires or malafide or having been made in colourable exercise of power based on extraneous and irrelevant consideration-But the scope of judicial review in respect of such proceedings is limited-Order would be a nullity if rules of natural justice are violated-Principles of Natural Justice. Principle of Natural Justice-Right to hearing-Opportunity to cross examine and adduce evidence denied-Denial of reasonable opportunity of hearing alleged-Held: Principles of Natural Justice are flexible and have to be examined in each case-They cannot be fixed in rigid mould-In the present case in view of the conduct of the alleging parties, mere denial of opportunity to cross examine or adduce evidence may not automatically lead to violation o principles of Natural Justice. Interpretation of Statutes-It is ordinarily not the function of the court to read word, in a statute-Court must proceed on the assumption that legislature did not make a mistake and it intended to say what it said-Constitution of India, 1950-Tenth Schedule para 3 and 2 (1) (a). Doctrines-Doctrine of necessity-Applicability of. Petitioners were elected to the State Assembly. Four petitioners were independent members and two were lone members representing their respective political parties in the Assembly. Speaker of the Assembly disqualified them from the membership of the Assembly in exercise of its power under the Tenth Schedule to the Constitution of India. All the petitioners challenged the orders of disqualification on the ground of violation of principles of natural justice; that impugned orders were result of malafide of the Speaker as the disqualifications were made in utter haste with a view to deprive them of their right to vote in elections to Rajya Sabha in view of the fact that the Speaker, on telephone had told that if they abstained from voting, their disqualification could be avoided; that the speaker had no basis for coming to the conclusion regarding their defection; and that the petitioners belonging to the political parties were entitled to protection of Paragraph 3 of the Tenth Schedule since there were splits in their original political parties and they being single member parties in the Assembly, having joined another party, the stipulation that when more than one-third members join another party, there is a split, stood fulfilled, it being a case of hundred per cent members joining another political party. – Dismissing the Writ Petitions, the Court HELD: 1. The Speaker, while exercising power to disqualify members, acts as a Tribunal and though validity of the orders, thus, passed can be questioned in the writ jurisdiction of this Court or High Courts, the scope of judicial review is limited. The orders can be challenged on the ground of ultra vires or malafides or having been made in colourable exercise of power based on extraneous and irrelevant considerations. The order would be a nullity if rules of natural justice are violated. [535-B-D] Kihoto Hollohan v. Zachillhu and Ors., [1992] supp 2. SCC 651, relied on. 2.1. The Speaker, in law, was the only authority to decide whether the petitioners incurred or not, disqualification under the Tenth Schedule to the Constitution in his capacity as Speaker. He had obviously opportunity to see the petitioners and hear them and that is what has been stated by the Speaker in his order. Speaker has not committed any illegality by stating that he had on various occasions seen and heard these MLAs. It is not a case where the Speaker could transfer the case to some other tribunal. The doctrine of necessity under these circumstances would also be applicable. No illegality can be inferred merely on the Speaker relying upon his personal knowledge of having seen and heard the petitioners for coming to the conclusion that persons in the electronic evidence are the same as he has seen and so also their voices. [548-A-C] Dewan Singh v. Champat Singh and Ors., [1969] 3 SCC 447, distinguished. 2.2. Undoubtedly, the Speaker has to comply with the principles of natural justice and cannot pass an order on the basis of pre-determination but in the present case, it cannot be held that the impugned order suffers from any such infirmity. It cannot be said that the petitioners were not given a fair deal by the Speaker and principles of natural justice have been violated. [553-A-B] 2.3. The requirement to comply with the principles of natural justice is also recognized in rules made by the Speaker in exercise of powers conferred by paragraph 8 of the Tenth Schedule of the Constitution of India. The Speaker, Haryana Legislative Assembly, made the Haryana Legislative Assembly (Disqualification of Members on ground of Defection) Rules, 1986 in exercise of power conferred by paragraph 8 of the Tenth Schedule. [535-D-F] 2.4. The question whether reasonable opportunity has been provided or not cannot be put in a strait-jacket and would depend on the fact situation of each case. While considering the plea of violation of principles of natural justice, it is necessary to bear in mind that the proceedings, under the Tenth Schedule, are not comparable to either a trial in a court of law or departmental proceedings for disciplinary action against an employee. But the proceedings here are against an elected representative of the people and the judge holds the independent high office of a Speaker. The scope of judicial review in respect of proceedings before such Tribunal is limited. Howsoever limited may be the field of judicial review, the principles of natural justice have to be complied with and in their absence, the orders would stand vitiated. The yardstick to judge the grievance that reasonable opportunity has not been afforded would, however, be different. Further, if the view taken by the Tribunal is a reasonable one, the Court would decline to strike down an order on the ground that another view is more reasonable. The Tribunal can draw an inference from the conduct of a member, of course, depending upon the facts of the case and totality of the circumstances. [535-F-H; 536-A-C] 2.5. In the present case, petitioners filed their replies to the complaint and were asked by the Speaker to watch the video recording and point out doctoring thereof, if any. The petitioners failed to do so. The petitioners cannot be permitted to sit on the fence, take vague pleas, make general denials in the proceedings before the Tribunal of the nature under consideration. Under these circumstances, mere denial of opportunity to cross-examine or adduce evidence may not automatically lead to violation of principles of natural justice. The principles of natural justice cannot be placed in such a rigid mould. The principles of natural justice are flexible and have to be examined in each case. [540-D-H] National Textile Workers’ Union and Ors. v. P.R. Ramakrishnan and Ors., [1983] 1 SCC 228, distinguished. Swadeshi Cotton Mills v. Union of India, [1981] 1 SCC 664; Ravi S. Naik v. Union of India and Ors., [1994] Supp. 2 SCC 641; Kihoto Hollohan v. Zachillhu and Ors., [1992] Supp. 2 SCC 651; Mrs.Maneka Gandhi v. Union of India and Anr., [1978] 1 SCC 248 and Union of India and Anr. v. Tulsiram Patel, [1985] 3 SCC 398, referred to. John v. Rees and Anr., [1969] 2 All E.R. pp. 307-309, referred to. 2.6. It is evident from the facts that the petitioners declined to watch the recording, failed to show how and what part of it, if any, was not genuine but merely made general denials and sought permission to cross-examine and opportunity to lead evidence. [543-E-F] 2.7. The sufficiency of the time granted depends upon the facts and circumstances of each case. Having regard to the facts of the case it cannot be accepted that in the present case, the petitioners were not granted sufficient time to meet the case against them. [543-G-H] 2.8. Admission is the best evidence that can be relied upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. The petitioners have failed to satisfy the latter part. [552-H; 553-A] Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., [1960] 1 SCR 773, relied on. 3. The object for enacting the defection law is to curb the menace of defection. Despite defection a member cannot be permitted to get away with it without facing the consequences of such defection only because of mere technicalities. The substance and spirit of law is the guiding factor to decide whether an elected independent member has joined or not a political party after his election. [541-D-F] 4.1. Petitioners (independent members) have incurred disqualification as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of India. [554-B-C] 4.2. It is correct that there is a fundamental difference between an independent elected member and the one who contests and wins on ticket given by a political party. This difference is recognized by various provisions of the Tenth Schedule. An independent elected member of a House incurs disqualification when he joins any political party after election as provided in paragraph 2(2) of the Tenth Schedule. It is also correct that the proposition that giving of outside support by an independent elected member is not the same thing as joining any political party after election. To find out whether an independent member has extended only outside support or, in fact, has joined a political party, materials available and also the conduct of the member are to be examined by the Speaker. It may be possible in a given situation for a Speaker to draw an inference that an independent member of the Assembly has joined a political party. No hard and fast rule can be laid down when the answer is dependent on the facts of each case. [541-A-D] 4.3. To determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party. At the same time, non-fulfillment of formalities with a view to defeat the intent of paragraph 2(2) is also of no consequence. The question of fact that a member has given up his independent character and joined, for all intent and purposes, a political party though not formally so as to incur disqualification provided in paragraph 2(2) is to be determined on appreciation of the material on record. Applying this test here, it cannot be held that the Speaker committed any illegality in coming to the conclusion that the petitioners had joined the Indian National Congress. The conclusions reached by the Speaker cannot be held to be unreasonable, assuming that two views were possible. [553-F-H; 554-A-B] 5.1. On the facts of the present case, the Speaker was justified in coming to the conclusion that there was no split in the original political party of the petitioner ‘J’. Likewise, in Writ Petition of another petitioner belonging to political party, the Speaker on consideration of relevant material placed before him came to the conclusion that there was no split as contemplated by paragraph 3 of the Tenth Schedule. The finding of the Speaker cannot be faulted. In fact, letter of the petitioner dated 17th June sent to the Speaker itself shows that what was claimed was that the Haryana unit of the Republican Party of India effected a split in the original party on 21st December, 2003. The finding that the claim of split was made as an afterthought to escape disqualification under paragraph 2(1)(a) of the Tenth Schedule cannot be held to be unreasonable or perverse. The Speaker was justified in coming to the conclusion that despite various opportunities, no valid proof or evidence was placed on record by the petitioner to show that indeed a split had taken place in the original political party. [563-d-g] 5.2. The disqualification under paragraph 2(1)(a) is incurred when a member of the House voluntarily gives up membership of his original political party. Paragraph 2 is, however, subject to paragraph 3 of the Tenth Schedule. If conditions of paragraph 3 are satisfied, despite giving up membership voluntarily, a member would not incur disqualification under paragraph 2. 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 disqualification. 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 for that reason disqualification under paragraph 2 is not attracted. [558-C-E] Ravi S. Naik v. Union of India and Ors., [1994] Supp. 2 SCC 641, relied on. 5.3. The acceptance of the contention that only claim is to be made to satisfy the requirements of paragraph 3 can lead to absurd consequences besides the elementary principle that whoever makes a claim has to establish it. It will also mean that when a claim as to split is made by a member before the Speaker so as to take benefit of paragraph 3, the Speaker, without being satisfied even prima facie about the genuineness and bonafides of the claim, has to accept it. It will also mean that even by raising a frivolous claim of split of original political party, a member can be said to have satisfied this stipulation of paragraph 3. The acceptance of such broad proposition would defeat the object of defection law, namely, to deal with the evil of political defection sternly. For the purposes of paragraph 3, mere making of claim is not sufficient. The prima facie proof of such a split is necessary to be produced before the Speaker so as to satisfy him that such a split has taken place. [559-C-F] 5.4. In the present case, the Speaker has held that the petitioner has failed to satisfy that split in the original party, had taken place. The petitioner voluntarily gave up membership of National Congress Party (NCP) and joined this newly formed party. On these facts, the disqualification of voluntarily giving up membership of NCP stands attracted subject to the claim of the petitioner under paragraph 3. The petitioner had to prove that the stipulations of paragraph 3 are satisfied. The Speaker has held that no valid proof or evidence was placed on record to show that split had indeed taken place in NCP. The Speaker, on the basis of material on record, has come to the conclusion that the petitioner was wanting to treat his own defection allegedly supported, according to the petitioner, by some party workers at local level as a split in his original political party. Such a plea was not accepted by the Speaker. The Speaker is right. Such a split, if held to be valid for the purposes of paragraph 3, would defeat the very purpose of the law. The requirement is not the split of the local or State wing of original political party but is of original political party as defined in paragraph 1(c) of the Tenth Schedule read with the explanation in paragraph 2(1) to the effect that ‘an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member’. [559-F-H; 560-C-E[ Madan Mohan Mittal, MLA v. The Speaker, Punjab Vidhan Sabha The Punjab Law Reporter Vol.CXVII 1997-3, 374 – disapproved. 5.5. In the case of split, one-third members of State Legislature belonging to that political party must form a group to make the split effective within the State Legislature but it does not lead to the conclusion that the Parliament intended to treat State Unit of a political party as a separate entity for the purposes of the benefit of paragraph 3. Paragraph 1(c) defining original political party and explanation as given in paragraph 2(1) have already been noticed hereinbefore. It is clear from a bare reading thereof that the elected member belongs to the political party by which he is set up as a candidate for election as such member. From the plain language of these provisions, it cannot be held that for the purposes of the split, it is the State Legislature party in which split is to be seen. If a member is set up by a National Party, it would be no answer to say that events at National level have no concern to decide whether there is a split or not. In case a member is put up by a National Political party, it is split in that party which is relevant consideration and not a split of that political party at the State level. [562-B-E] G. Viswanathan v. Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras and Anr., [1996] 2 SCC 353, relied on. 5.6. The words ‘he and any other person’ and the words ‘the group’ in paragraph 3 on the plain reading shows that the benefit of paragraph 3 is not available to a single member legislature party. It cannot be said that the words ‘he and any other person’, in the context of a recognized single member legislature party should be read and understood as ‘he or he and any other members of his legislature party constitute the group’. The Court cannot read words in the Constitution which do not exist. Undoubtedly, paragraph 2(1)(a) is subject to the provisions of paragraphs 3, 4 and 5 and if paragraph 3 applies and ingredients thereof are satisfied the member would not attract disqualification under paragraph 2(1)(a). In that sense paragraph 3 overrides paragraph 2(1)(a). The factor that a single member legislature party is recognized by the Speaker is of no relevance in interpreting paragraph 3 of the Tenth Schedule. In the context of the language of paragraph 3 of the Tenth Schedule, Section 13(2) of the General Clauses Act, 1897 which requires that unless there is anything repugnant in the subject of context, ‘words in the singular shall include the plural, and vice-versa’ has no applicability. It is, ordinarily, not the function of the Court to read words into a statute. The Court must proceed on the assumption that the Legislature did not make a mistake and it intended to say what it said. It is well settled that “the Court cannot add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result’. [566-D-H; 567-A-B] P.K. Unni v. Nirmala Industries and Ors., [1990] 2 SCC 378, referred to. 5.7. It cannot be said that when paragraph 3 protects when there is defection of a group consisting of not less than one-third of the members of a legislature party, the intention of law can never be to deprive such a benefit where group is 100%. Firstly, there is no contradiction or ambiguity or defect or omission in paragraph 3; secondly, there is no manifest contradictions insofar as the apparent object of the defection law is concerned in paragraph 3 depriving the benefit of single member legislature party; thirdly the legislature is assumed to have known the existence of single member legislature party; and finally from the language of paragraph 3, it is evident that the Parliament did not intend to grant the benefit of paragraph 3 to a single person legislature party, having regard to the object of the Constitutional amendment dealing with evil of defection. Advisedly, the words are ‘he and other members’ instead of the words ‘he or he and other members’. [567-A-E] 5.8. The object of the Tenth Schedule is to discourage defection. Paragraph 3 intended to protect a larger group which, as a result of split in a political party which had set up the candidates, walks off from that party and does not treat it as defection for the purposes of paragraph 2 of the Tenth Schedule. The intention of the Parliament was to curb defection by a small number of members. That intention is clear from paragraph 3 which does not protect a single member legislature party. By Constitution (Ninty-first Amendment) Act, 2003, paragraph 3 has been omitted from the Tenth Schedule. [567-D-F] 5.9. The question of drawing adverse inference in view of Speaker not rebutting the averments, would depend upon the satisfaction of the Court, having regard to the facts and circumstances of the case. Ordinarily, the adverse inference can be drawn in respect of allegations not traversed, but there is no general rule that adverse inference must always be drawn, whatever the facts and circumstances may be. The facts and circumstances of the present case as to how the petitioners have been avoiding to appear before the Speaker; how the proceedings were being delayed and long adjournments sought on ground such as non-availability of senior advocates because of court vacations. In the light of these peculiar facts and circumstances, a telephone call like the one alleged can mean that further adjournment as sought for by the petitioners is possible if they do not vote in the Rajya Sabha election. On facts there is no adverse inference and the plea of malafides cannot be accepted. [568-B-E] 6. Certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal. It has been urged that if not checked, it may ultimately affect the high office of the Speaker. Recommendations have been made by the National Commission to review the working of the Constitution recommending that the power to decide on the question as to disqualification on ground of defection should vest in the Election Commission instead of the Speaker of the House concerned. There are views of number of other experts, committees/commissioner to the effect that the power of disqualification as a result of defection need to be exercised in accordance with the opinion of the Election Commission as in the case of decision on question as to disqualification of members provided for in Article 103 and 194(2) of the Constitution. [568-H; 569-A-C] Kihoto Hollohan v. Zachillhu and Ors., [1992] supp. 2 SCC 651, referred to. Anti-Defection Law and Parliamentary Privileges by Dr. Subhash C. Kashyap; Indian Constitutional Law by M.P. Jain 5th Edn; Constitutional Law of India, 2nd Edn. by T.K. Tope, Reviewing the Constitution edited by Dr. Subhash C. Kashyap and Ors; First V.M. Tarkunde Memorial Lecture on “Indian Democracy Reality or Myth?” delivered by Shri Soli J. Sorabjee, referred to. Ajay Siwach, A.A.G., P.P. Rao, V.A. Bobde, Soli J. Sorabjee, R.N. Trivedi, Mahendra Anand, Shanti Bhushan, Rakesh K. Khanna Jaspal Singh, R.N. Karanjawala, Arunabh Chaudhary, Sarvesh Singh Baghel, Abhishek Kumar, Anshuman Ashok, Dashmeet Chaddha, Kanika Agnihotri, Pragya Baghel, Manik Karanjawala, Gaurav Vatts, Aditya Kumar Choudhary, Manish Mohan, Sweta Garg, Surya Kant, Sandeep Sharma, T.V. George, Sanjai Pathak, Ugra Shankar Prasad and Arun Kumar Beriwal for the appearing parties.

CASE NO.: Writ Petition (civil) 287 of 2004 PETITIONER: Jagjit Singh RESPONDENT: State of Haryana & Ors DATE OF JUDGMENT: 11/12/2006 BENCH: CJI,C.K. Thakker & P.K. Balasubramanyan JUDGMENT: J U D G M E N T [With WP (C) Nos.290, 291, 292, 293 & 294 of 2004] Y.K. Sabharwal, CJI. These petitions challenge the legality … Continue reading

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