KESHAB GOGOI Vs. HONBLE SPEAKER, ASSAM LEGISLATIVE ASSEMBLY AND ORS.
LAWS(GAU)-1994-8-8
HIGH COURT OF GAUHATI
Decided on August 27,1994

KESHAB GOGOI Appellant
VERSUS
Honble Speaker, Assam Legislative Assembly And Ors. Respondents




JUDGEMENT

- (1.)THIS appeal is directed against the order of learned single Judge dated 9.3.94 in Civil Rule No. 968 of 1994. It may be stated that at the initial stage, the learned single judge considered the matter and held that mere notice for show cause does not give cause of action to the Petitioner to invoke the writ jurisdiction of this Court and accordingly petition was disposed of directing the Respondent No. 1 viz. Speaker, Assam Legislative Assembly to grant further time to the Petitioner for the purpose of reply to the show cause notice for alleged violation of the whip of the party in the Assembly and thereby attracting the provisions of 10th Schedule to the Constitution.
(2.)THE case of the Appellant -Petitioner is that he was one of the Seniormost Congress (I) leaders of the State and has held several posts in different cabinets and was also one of the former Chief Ministers of Assam, The Appellant -Petitioner was a Minister in December, 1992 and due to serious differences between him and Respondent No. 2, he was dismissed as a Minister. The further case of the Appellant is that Respondent No. 2 would politically gain if the Appellant -Petitioner would be disqualified from the membership of the House under the provisions of the 10th Schedule to the Constitution.
(3.)ON 15.10.93 a no -confidence motion sponsored by the opposition against the present Ministry headed by the Respondent No. 2 was taken up for discussion and it was ultimately put to vote. The Speaker of the Assam Legislative Assembly, Respondent No. 1, asked the members in support of the motion to stand up and most of the opposition members stood up in favour of the motion and the Appellant Petitioner alongwith his colleagues belonging to the Congress (1) party were seated. The writ Petitioner -Appellant has alleged that after the head count by the members of the staff of the Assembly, he alongwith others could see that not more than 50 members had stood up in favour of the motion, As the total strength of the Legislative Assembly was 126 members, the writ Petitioner -Appellant could understand that the motion was defeated. A specific statement in the memo of appeal has been made that the Appellant understood that his action in remaining seated when the Speaker asked those who were in favour of the motion to stand up amounted to his voting against the motion. The Speaker announced that no confidence was defeated and result was 50 for the motion and 68 against the motion.
According to Appellant, to his utter shock and surprise a notice dated 25.1.94 issued by the Secretary of the Legislative Assembly, Respondent No. 3 was served on him at Assam Bhavan, New Delhi on 15.2.94 intimating him that a proceeding for disqualification under the 10th Schedule read with the Members of Assam Legislative Assembly (Disqualification on ground of Defection) Rules, 1986, for short 'the Rules', has been drawn up by the Speaker against the writ Petitioner -Appellant on the basis of a complaint filed by the leader of the Assam Congress (I) Legislative Party, Respondent No. 2 and asking the writ Petitioner -Appellant to show cause within 10 days. Alongwith the notice, a copy of the complaint petition with all enclosures were also forwarded. The notice and the complaint petition and other documents have been annexed as Annexure -1 and 2 to the memo of appeal. At that time the Appellant -writ Petitioner was at Delhi for treatment of his cardiac disease As the Time fixed for submission of the reply had expired before it was received by the writ Petitioner -Appellant, the Appellant on the same day sent a telegram seeking 3 months time for submission of show cause and thereafter a letter dated 18.2.94. A photocopy of the medical certificate issued by the cardiologist advising rest on medical ground of the writ Petitioner -Appellant was also sent. In reply, the Secretary of the Legislative Assembly, Respondent No. 3 informed the writ Petitioner -Appellant that the Speaker granted only 15 days time to show cause. Again, the writ Petitioner -Appellant by letter dated 28.2.94 prayed for extension of time and according to the writ Petitioner -Appellant till date no reply has been received either from the Respondent No. 1 or from Respondent No. 3. Copies of the letters are available at Annexure 6 and 7 to the memo of appeal. Thereafter, the writ petition in question was filed which was disposed of by the impugned order by the learned single judge.



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