M.M. Kumar, J. - (1.) THIS order shall dispose of a bunch of appeals* which have been preferred by the Speaker, Haryana Vidhan Sabha and the Members of the Legislative Assembly. However, the facts have been referred from LPA No. 366 of 2011.
(2.) THE members of Legislative Assembly -respondent Nos. 2 to 6, namely, Sarvshri Satpal Sangwan, MLA Dadri Constituency; Vinod Bhayana, MLA Hansi Constituency; Narendra Singh, MLA Narnaul Constituency; Zile Ram Sharma, MLA Assandh Constituency; and Dharam Singh, MLA Samalkha Constituency, are facing proceedings before the Speaker in disqualification petitions filed against them. They successfully contested election to constitute 12th Haryana Legislative Assembly in September/October 2009 on the original party ticket of Haryana Janhit Congress (BL) [for brevity, 'HJC (BL)']. A meeting of HJC (BL) was held which was presided over by its President -writ petitioner -respondent No. 1. Later on these five MLAs' claimed to have merged with the Indian National Congress [for brevity, 'INC'] in terms of the provisions of paragraph 4 of the Tenth Schedule of the Constitution and moved an application before the Speaker. Along with the application they attached a copy of the minutes of the meeting dated 9.11.2009 of the Haryana Janhit Congress Legislative Party claiming that the legislators of HJC (BL) participated in that meeting. The minutes of the meeting attached with their application (P -3) would show that a meeting of only the legislators of the HJC (BL), who were elected to the 12th Haryana Legislative Assembly was held on 9.11.2009, who considered and decided merger of the original HJC (BL) Party with the INC Party. The Speaker did not issue any notice of this application to President of HJC(BL), who himself was an MLA and never participated in the so called meeting of the legislators of HJC(BL). On the basis of the said application, however, the Speaker, Haryana Vidhan Sabha, passed an order on 9.11.2009 (P -4), accepting merger of HJC (BL) Party with the INC Party with immediate effect. Shri Dharam Singh -respondent No. 6 applied for merger with the INC Party on the next day and the order by the Speaker to that effect has been passed on 10.11.2009 (P -7). The learned counsel for all the appellants have laid emphasis on the proceedings to show that it is not a case where delay is being caused by the Speaker and that in any event it is not a fit case for issuance of direction. Therefore, at appropriate place we shall sum up the circumstances and events which have taken place before the Speaker right from the date of presentation of merger application dated 9.11.2009. Mr. Kuldeep Bishnoi, writ petitioner -respondent No. 1, who is the President of the HJC (BL), challenged both the orders dated 9.11.2009 (P -4) and 10.11.2009 (P -7) by filing CWP No. 14194 of 2010, relatable to the present set of Letters Patent Appeals, by setting up the plea that as per law there is no possibility of merger of the legislative party and merger can only be of the original political party. It was, therefore, urged that the Speaker was not competent to recognise them as there was no merger of HJC (BL) with the INC. In support of the aforesaid submission the writ petitioner -respondent No. 1 placed reliance on the language of paragraph 4 of the Tenth Schedule of the Constitution which uses the expression 'original political party' for the purposes of merger with another political party. The writ petitioner -respondent No. 1 also placed reliance on paragraphs 3, 4 and 5 of the judgment rendered in the case of Ram Bilas Sharma v. Speaker, Haryana Vidhan Sabha, 1997 (3) PLR 318, in which it is laid down that in order to seek disqualification under paragraph 4 of the Tenth Schedule of the Constitution, it has to be shown that merger is of political party and not merely of the members of the legislative assembly, who were set up as candidate for election as a member by the merging political party. Reliance was also placed on para 72 of the judgment rendered in the case of Jagjit Singh v. State of Haryana, : AIR 2007 SC 590, which also talks of split in the original political party as distinguished from the split in Legislature Party. It has been held that if a member is set up as a candidate in the election by a national party it would be no answer to say that the national level party has no concern to decide whether there is a split or not. The other ground of challenge is that no notice of merger was issued to the President of HJC (BL), therefore, the principles of natural justice have been wantonly disregarded. In that regard the writ petitioner -respondent No. 1 placed reliance on para 40 of the Full Bench judgment of this Court rendered in the case of Parkash Singh Badal v. Union of India, : AIR 1987 P&H 263. It would be appropriate to read para 40, which is in the following terms: - 40. Even if it may be accepted for the sake of argument that the filing of the application, Annexure P -1, before the Speaker gave rise to a question as to the disqualification of the petitioners and the Speaker was seized of the matter, the order, Annexure P -3, passed by him would be nonest and ineffective so far as respondent No. 7 is concerned. The principle of law is well established that an order passed in a given proceedings would not bind any person affected thereby who was neither party to those proceedings nor given an opportunity of being heard before passing the same. It was on the same principle that a Five Judges Bench of this Court in State of Haryana v. Vinod Kumar,, 1986 (1) 89 Pun L.R 222 held an order of the Collector Agrarian to be ineffective and nonest against the persons who were affected thereby but were neither party to the proceedings nor afforded any opportunity of being heard. The Fifty -Second Amendment has been enacted to prevent defections which necessarily means that it has been enacted primarily for the benefit of the political parties whose members constitute the House, though broadly speaking any citizen can invoke its provisions. The voluntary giving up of the membership of any political party would affect such a party and so would any order passed under para 6. Consequently an order passed under para 6 affecting adversely any political party would be ineffective and nonest against it if no notice is issued to it for opportunity of being heard afforded. By making a claim under para 3, the petitioners are deemed to have voluntarily given up the membership of the Shiromani Akali Dal on whose tickets they were elected. So, they were liable to be declared as disqualified from being members of the House. If their defence was to be accepted under para 3 and decision, as envisaged under para 6, to be made, the principles of natural justice would require a notice to be served on the President of the political party concerned. It has already been discussed above in detail that the Speaker would be a Tribunal while acting under para 6 and the proceedings before him of quasi -judicial nature. Any order passed by him under that paragraph without issuing notice or affording any opportunity of hearing to the interested party, therefore, would be nonest and ineffective against such a party. As before passing the order, Annexure P -3, neither the political party nor any other person interested in the matter was heard, it would bind none and in that sense it can be said to be an order void ab initio. On both the grounds, therefore, the Speaker was justified in ignoring the order, Annexure P -3. .......
(3.) THE learned Single Judge after noticing paras 4 and 6 of the Tenth Schedule, Articles 122, 212 of the Constitution as well as clause (b) of sub -rule (3) of Rule 7 the Haryana Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 (for brevity 'the Defection Rules') of the Defection Rules, reached the conclusion that an order passed by the Speaker under paragraph 4 of the Tenth Schedule is necessarily required to be adjudicated by the Speaker under paragraph 6. The learned Single Judge placed reliance on para 40 of the Full Bench judgment in Parkash Singh Badal's case (supra) and paras 70 and 72 of the judgment of Hon'ble the Supreme Court rendered in the case of Jagjit Singh (supra). The learned Single Judge also noticed Rule 7(b)(3) of the Defection Rules and then rejected the argument of the writ petitioner -respondent No. 1. The view of the learned Single Judge is discernible from the following para of the judgment, which reads thus: In my opinion, while passing an order under Paragraph 4, the Speaker is not enjoined to act as purely a judicial officer and to this extent the observations of the Hon'ble Supreme Court in the para extracted above, which laid down that an order of recognizing split/merger is not binding on a person who is not a party to it, would militate against the arguments of learned counsel for the petitioner. It must be noticed that both these cases arose from petitions under Article 191 and Paragraph 6 of the Schedule (supra). Thus, in my considered opinion, it can be safely held that an order under Paragraph 4 would necessarily be subject to an adjudication under Paragraph 6. The challenge to the orders, Annexures P -4 and P -7, is, thus, rejected.;