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PETITIONER: DR. KASHINATH G. JALMI AND ANR.  ETC.  ETC.

       Vs.

RESPONDENT: SPEAKER AND ORS.

DATE OF JUDGMENT31/03/1993

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SAWANT, P.B. KASLIWAL, N.M. (J)

CITATION:  1993 AIR 1873            1993 SCR  (2) 820  1993 SCC  (2) 703        JT 1993 (3)   594  1993 SCALE  (2)280

ACT: Constitution of India, 1950: Article 226--Writ--Dismissal at admission stage on ground of laches--Whether valid. Legislative Assembly--Speaker’s order disqualifying  members under  Tenth  Schedule--Review  by  Speaker--Setting   aside disqualification orders--Writ in the nature of class  action challenging  review order after ten months--Allegation  that disqualified   members   continue   to   hold   public   of- fice--Dismissal  by High Court on the ground of laches  held unjustified--Analogy  of limitation provided  under  Section 81(1)   of   People’s   Representation   Act,   1951    held inapplicable--Distinction  between writs enforcing  personal rights  and writs relating to assertion of public rights  in the nature of class action held relevant--Motive and conduct of petitioner held relevant only for denying costs but not a justification  to refuse examination of question  of  public concern on merits. Doctrine of laches. Tenth   Schedule--Legislative  Assembly--Order  of   Speaker disqualifying  members on the ground  of  defection--Speaker whether has implied power to review--Disqualification order. Article  136--Appeal  by special  leave--Dismissal  of  writ petitions  by  High Court on the ground  of  laches--Whether susceptible to interference.

HEADNOTE: R.S.,  R.M.  and  S.B. were elected as Members  of  the  Goa Legislative  Assembly  in the Elections  held  in  November, 1989.   Subsequently, R.S. assumed office of Chief  Minister and formed his Council of Ministers including R.M. and  S.B. as Ministers.  Thereafter, the appellant (In C.A.  1094/92), a  Member  of  the Assembly, presented  a  petition  to  the Speaker of the Assembly seeking disqualification of R.S.  on the  ground that he had voluntarily given up the  membership of his political party.  By its order 821 dated  15.2.91 the Speaker passed an order under Para  6  of the Tenth Schedule of the Constitution disqualifying R.S. on the ground of defection.  R.S. filed a writ petition  before

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the Goa Bench of the Bombay High Court challenging the order of  disqualification and by an interim order the High  Court stayed the operation of the disqualification order.   During the  pendency of the writ petition the Speaker  was  removed from  office and a, deputy speaker was elected in his  place who began functioning as Speaker.  R.S. filed an application before   the   Acting   Speaker  seeking   review   of   his Disqualification  order  and  on 83.91  the  Acting  Speaker passed  an  order,  in purported exercise of  his  power  of review   under  the  Tenth  Schedule,  setting   aside   the Disqualification order dated 15.2.91. Consequently tie  writ petition  filed  by R.S.  challenging  his  disqualification order  was  dismissed as not pressed, by the High  Court  on 8.1.92 the appellant flied a petition challenging the review order dated 83.91 passed by the Acting Speaker on the ground that  the  Speaker  did not have any  power  to  review  the earlier  order of disqualification.  Without going into  the merits of the case the High Court dismissed the petition  at the  admission stage on the ground of laches.  The  decision of the High Court was impugned before this Courts. Subsequently,  another member of the Assembly, appellant  in C.&  1096/92,  also filed a writ  petition  challenging  the review  order  dated  83.91 passed  by  the  Acting  Speaker setting  aside  the  earlier  order  disqualifying  R.S,  on similar grounds.  The High Court also dismissed the same  at the  admission  stage  for  the  same  reason,  ie.  laches. Against the order dismissing the writ petition an appeal was preferred in this Court In  the connected appeal (CA 1095/92) the appellant  applied to the Speaker seeking disqualification of R.M. and S.B.  on the  ground  of defection and by his  order  dated  13.12.90 Speaker  passed the order disqualifying R.M. and S.B.  under the   Tenth   Schedule.   Both  of  them   filed   petitions challenging  the  disqualification order and by  an  interim order the High Court stayed the disqualification orders.  In the  meantime, in a manner, similar to that in the  case  of R.S.,  the  Acting  Speaker by his order  dated  7.3.91,  in purported exercise of the review. set aside the orders dated 13.12.90  disqualifying R.M. and S.B. The appellant filed  a petition  challenging  the orders of review  passed  by  the Acting Speaker.  It was also dismissed by the High Court  on the  ground  of  laches.   Against  dismissal  of  the  writ petition an appeal was filed before this Court 822 In appeals to this Court, it was contended on behalf of  the appellants  that  (1)  the mere  delay  in  challenging  the legality  of the authority under which respondents  continue to  hold public office, after being disqualified as  Members of the Assembly, was not a valid justification for the  High Court to refuse to examine the main question of existence of power  of  review  in the Speaker  acting  under  the  Tenth Schedule,  since  the  discretion of the  High  Court  under Article   226   of  the  Constitution  must   be   exercised judicially,   so  as  not  to  permit  perpetuation  of   an illegality, (2) the doctrine of laches does not apply  where declaration  sought is of nullity, in order to  prevent  its continuing  operation,  and laches is not  relevant  in  the domain  of public law relating to public office,  where  the purpose  is to prevent an usurper from continuing to hold  a public office; (3) the power of review in the Speaker cannot be  implied from the provisions in the Tenth  Schedule,  and the  only  remedy available to the aggrieved  person  is  by judicial  review of the order of the  disqualification;  and (4)  that  the  motive  and  conduct  of  the   petitioners- appellants  in such matters is not decisive or fatal to  the

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enquiry claimed in the writ petition, inasmuch as the relief claimed  by them was not for their personal benefit but  for larger  public interest and good governance of the State  by persons holding public offices. On behalf of the respondents it was contended that (1)  even though  there is no statutory limitation for filing a writ petition, yet in a case like the present, the apt analogy is of an election petition challenging an election, which is to be  filed  within 45 days from the date of election  of  the returned    candidate,   under   Section   81(1)   of    the Representation  of  the People Act, 1951, to  indicate  that unless  such a challenge is made promptly the  courts  would refuse  to  examine  such a question after the  lapse  of  a reasonable period; hence petitions filed after ten months of the  date  of the order of review made by the  Speaker  were rightly  rejected on the ground of laches; (2) the  doctrine of laches applies as much to the writ of quo warranto, as it does  to a writ of certiorari; (3) in view of  the  finality attaching  to the order made by the Speaker under para 6  of the  Tenth  Schedule  the power of  review  inheres  in  the Speaker for preventing miscarriage of justice, in situations when the speaker himself is of the view that continuance  of his  earlier  order  of  disqualification  would  perpetuate injustice;  (4) the inherent power of review in the  Speaker must  be  read  in the Tenth Schedule, at  least  upto  12th November,  1991  when the Judgment in  Kihoto  Hollohan  was rendered declaring the availability of judicial 823 review against the Speaker’s order of disqualification  made under  para  6  of the Tenth Schedule; (5)  only  a  limited judicial review being available against the Speaker’s  order of  disqualification,  as  held by the  majority  in  Kihoto Hollohan,  some power of review Inheres in the Speaker  even thereafter  to correct palpable errors failing  outside  the limited  scope  of judicial review, and (6)  the  appellants were  not only associated with R.S. at different  times  but also  they obtained benefits from him, thus, in view of  the oblique  motive coupled with their conduct, the  High  Court was  justified  in refusing to  exercise  its  discretionary powers  under Article 226 of the Constitution at the  behest of  the appellants; the power under Article 136  also  being discretionary this Court would also be justified in refusing to  interfere with the discretion so exercised by  the  High Court. Allowing the appeals, this Court, HELD:  1.  The  judgment of the High  Court  that  the  writ petitions were liable to be dismissed, merely on the  ground of laches cannot be sustained. [834-C] 2.  The exercise of discretion by the Court even  where  the application  is delayed, is to be governed by the  objective of promoting public interest and good administration; and on that  basis it cannot be said that discretion would  not  be exercised in favour of interference where it is necessary to prevent continuance of usurpation of office or  perpetuation of an illegality. [839-F] 3. In the present case the claim is for the issue of a  writ of  quo warranto on the ground that respondents are  holding public  offices, having suffered disqualification as  Member of  the  Assembly subsequent to their election, and  one  of them,  continues  to hold the high public  office  of  Chief Minister.  The relief claimed in the present case in not the conferment of a personal benefit to the petitioners, but for cessation  of  the  usurpation of  public  offices  held  by respondents.  Thus, the relief claimed by the appellants  in their  writ petitions filed in the High Court being  in  the

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nature  of  a  class  action,  without  seeking  any  relief personal  to them, should not have been dismissed merely  on the ground of laches. [837 C-D, 839-H, 840-A] 3.1. The motive or conduct of the appellants, as alleged  by the  respondents, can be relevant only for denying them  the costs  even  If  their claim succeeds, but It  cannot  be  a justification to refuse to examine the 824 merits  of  the  question raised therein, since  that  is  a matter of public concern and relates to the good  governance of the State itself [840 A-B] 4. The remedy of an election petition Is statutory, governed by  the  limitation prescribed therein,  unlike  the  remedy under  Article  226 of the Constitution.   That  apart,  the analogy which is more apposite, is the decision on questions as  to  the disqualification of Members in  accordance  with Article 103 in the case of a Member of Parliament or Article 192 in the case of a Member of a House of a Legislature of a State.   For raising a dispute, giving rise to any  question whether a Member of a House has become subject to any of the disqualification  mentioned in clause (1) of Article 102  or 191, as the case may be, there is no prescribed  limitation, and  so  also for challenging the  decision  rendered  under Article 103 or 192 by a writ petition.  The question of  the disqualification of a Member on the ground of defection  and the  Speaker’s  order  thereon,  rendered  under  the  Tenth Schedule, is of a similar nature and not based on the result of  an election which can be challenged only by an  election petition in accordance with the provisions of Representation of the People Act, 1951. [834 F-H, 835-A] A.G.  v.  Proprietor of the Bradford Canal,  (1866)  L.R.  2 Equity Cases 71, relied on. Brundaban  Nayak.V. Election Commission of India  and  Anr., [19651 3 S.C.R. 53, explained and held inapplicable. The  Lindsay  Petroleum Company v. Prosper  Armstrong  Hurd, Abram  Farewell and John Kemp, (1874) L.R. 5 P.C.  221;  The Moon Mills Ltd. v. M.R. Meher, President, Industrial  Court, Bombay  and  Ors.,A.I.R. 1967 S.C. 1450;  Maharashtra  State Road  Transport  Corporation v. Shri Balwant  Regular  Motor Service  Amravati & Ors., [1969] 1 S.C.R. 808; M/s.   Tilok- chand  &  Motichand & Ors. v. H.B. Munshi & Anr.,  [1969]  1 S.C.C. 110; Shri Vallabh Glass Works Ltd. & Anr. v. Union of India  & Ors., [1984] 3 S.C.C. 362; M/s Dehri  Rohtas  Light Railway  Company  Ltd. v. District Board,  Bhojpur  &  Ors., [1992]  2  S.C.C. 598; Emile Erlanger and Ors.  v.  The  New Sombrero  Phosphate Company and Ors., (1878) 3 Appeal  Cases 1218; Anachuna Nwakobi, The Osha of Obosi and Ors. v. Eugene Nzekwu  & Anr., (1964) 1 W.LR. 1019; Everett  v.  Griffiths, (1924) 1 K.B. 941; R. v. Stratfort-on-Avon District  Council and Anr. ex parte Jackson, (1985) 3 All E.R. 769 and Caswell and  Anr.  v. Dairy Produce Quota Tribunal for  England  and Wales, (1990) 2 W.LR. 1320, held inapplicable. 825 5.  The  Speaker  has no power of  review  under  the  Tenth Schedule, and an order of disqualification made by him under para  6, thereof Is subject to correction only  by  judicial review. [841-F] Khoto  Hollohan v. Zachillu and Ors., [1992] Supp. 2  S.C.C. 651, referred to. Observations   in   Patel  Narshi  Thakershi   &   Ors.   v. Pradyumansinghji  Arjunsinghji A.I.R. 1970 S.C. 1273 to  the effect  that the power to review is not inherent  power  and must be conferred by law either specifically or by necessary implications, relied on. 5.1.There is no scope for reading in-to the Tenth  Schedule

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any  of  the powers of the Speaker which  he  otherwise  has while functioning as the Speaker in the House, to clothe him with  any  such  power  in his  capacity  as  the  statutory authority  functioning  under  the  Tenth  Schedule  of  the Constitution.    Accordingly  any  power  of  the   Speaker, available  to him while functioning in the House, is not  to be treated as his power of privilege as the authority  under the Tenth Schedule. [842 G-H, 843-A] Rule  7(7)  of the Members of the Goa  Legislative  Assembly (Disqualification  on grounds of Defection) Rules, 1986  and Rule 77 of the Rules of Procedure and Conduct of Business of the Goa Legislative Assembly held inapplicable. 6.  Para  7 has to be treated as non-existent in  the  Tenth Schedule  from the very inception.  As held by the  majority in  Kihoto Hollohan judicial review is available against  an order  of disqualification made by the Speaker under para  6 of   the  Tenth  Schedule,  notwithstanding   the   finality mentioned  therein.   It  is on account  of  the  nature  of finality  attaching by virtue of para 6, that  the  judicial review  available  against  the  Speaker’s  order  has  been labeled as limited in Kihoto Hollohan and the expression has to be understood in that sense, distinguished from the  wide power  in an appeal, and no more.  Thus the Speaker’s  order is final being subject only to judicial review, according to the settled parameters of the exercise of power of  judicial review  in  such cases.  The existence  of  judicial  review against  the Speaker’s order of disqualification made  under para  6 Is Itself a strong indication to the  contrary  that there  can  be no Inherent power of review in  the  Speaker, read in the Tenth Schedule by necessary Implication. [845 B- E] 826 7.  There  is no merit in the submission that the  power  of review inheres in the Speaker under the Tenth Schedule as  a necessary  incident  of  his  jurisdiction  to  decide   the question  of disqualification; or that such a power  existed till  12th  November,  1991  when  the  decision  in  Kihoto Hollohan was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable error outside the scope of judicial review. [845 F-G] Kihoto  Hollohan  v.  Zachillhu and Ors.,  [1992]  Suppl.  2 S.C.C. 651, explained. Shivdeo Singh & Ors. v. State of Punjab & Ors., A.I.R.  1963 S.C.  1909  and Grindlays Bank Ltd.  v.  Central  Government Industrial   Tribunal   &  Ors.,  [1981]   2   S.C.R.   341, distinguished. 8.  The impugned orders of the High Court,  dismissing  writ Petitions are setaside.   The orders made by  the  Acting Speaker in purported exerciseof power of review are nullity and liable to be ignored. [847 E-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1094 of 1992. WITH Civil Appeal No.1095 of 1992. AND Civil Appeal No. 1096 of 1992. From  the Judgment and Order dated 4.2.92 & 24.2.92  of  the Bombay High Court in W.P. Nos.11, 8 & 70 of 1992. R.K. Garg, Ram Jethmalani, V.A. Bobde,Harish N. Salve,  K.J. John,  Ms. Deepa Dixit, Rakesh Gosain, Ms. Rani  Jethmalani, P.K. Dev and Ms. Shanta Ramchand for the Appellants. Ashok Desai, F.S. Nariman, R.F. Nariman, P.H. Parekh,  Sunil

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Dogra, J.D. Dwarka Das and S.C. Sharma for the Respondents. The Judgement of the Court was delivered by 827 VERMA,  J. These appeals, by special leave, arise from  writ petition  Nos.11  of  1992,8 of 1992 and  70  of  1992,  all dismissed  by the Bombay High Court at the Goa Bench  merely on  the ground of laches; and they involve for decision  the common question relating to the power of review, if any,  of the  Speaker  to  review his decision  on  the  question  of disqualification  of a Member of the House,  rendered  under the  Tenth  Schedule  to the Constitution.   In  those  writ petitions,  the orders passed by the Speaker,  in  purported exercise  of the power of review, setting aside the  earlier orders of disqualification of certain Members made on merits by  the  Speaker,  were challenged on the  ground  that  the Speaker  has no such power of review.  The High  Court  took the   view,  that  the  writ  petitions  were  filed   after considerable   delay,   and,   therefore,   upholding    the preliminary  objection, had to be dismissed merely.  on  the ground  of laches; and, therefore, merits of the  contention that  the  Speaker  had  no such power  of  review  was  not considered.  The main questions which arise for decision  in these appeals are, therefore, two; namely               (1)LACHES  Are the impugned orders of the High               Court dismissing the writ petitions merely  on               the   ground   of   laches   susceptible    to               interference   under   Article  136   of   the               Constitution in the present case; and               (2)POWER  OF REVIEW  If so, does the  Speaker,               acting  as  the  authority  under  the   Tenth               Schedule of the Constitution, have no power of               review,  so  that  any order made  by  him  in               purported exercise of the power of review is a               nullity? The further question of the consequence and nature of relief to  be  granted,  would arise only if  these  questions  are answered in favour of the appellants. Ravi S. Naik, Ratnakar M. Chopdekar and Sanjay Bandekar were duly elected Members of the Goa Legislative Assembly in  the elections  held  in November, 1989.  On 25.1.1991,  Ravi  S. Naik  assumed the office of the Chief Minister of the  State of  Goa  and  he  formed his  Council  of  Ministers,  which included  Chopdekar and Bandekar as Ministers.  On the  same day,  i.e. on 25.1.1991, Dr. Kashinath Jalmi, also a  Member of  the  Legislative Assembly, presented a petition  to  the Speaker, Surendra V. Sirsat seeking disqualification of Ravi S. Naik as a Member of the Legis- 828 lative Assembly on the ground that he had voluntarily  given up the Membership of his political party.  On 16.2.1991, the Speaker, Surendra V. Sirsat passed an order under para 6  of the  Tenth Schedule to the Constitution, disqualifying  Ravi Naik  on the ground of defection.  On 16.2.1991,  Ravi  Naik filed  writ petition No.48 of 1991 at the Goa Bench  of  the Bombay   High   Court   challenging   the   order   of   his disqualification,  made  by  the  Speaker  under  the  Tenth Schedule to the Constitution.  On 18.2..1991, the High Court passed  an  interim  order in  that  writ  petition  staying operation.  of  the order of disqualification  made  by  the Speaker.   During  the pendency of this  writ  petition,  on 27.2.1991, Simon Peter D’Souza was elected Deputy Speaker of the Goa Legislative Assembly; on 4.3.1991 Surendra V. Sirsat was  removed  from  the office of  Speaker  and  the  Deputy Speaker,  Simon  Peter  D’Souza  began  functioning  as  the Speaker in place of Surendra V. Sirsat.  The same day,  i.e.

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on 4.3.1991, Ravi S. Naik made an application to Simon Peter D’Souza,  the Deputy Speaker functioning as the  Speaker  of the Goa Legislative Assembly, for review of the order  dated 15.2.1991  of  his  disqualification made  by  the  Speaker, Surendra  V. Sirsat under the Tenth Schedule.  On  8.3.1991, the  Acting Speaker, Simon Peter D’Souza made an  order,  in purported  exercise  of the power of the- review  under  the Tenth Schedule, setting aside the order dated 15.2.1991 made by  the  Speaker, Surendra V. Sirsat disqualifying  Ravi  S. Naik   as  a  Member  of  the  Goa   Legislative   Assembly. Thereafter,  Writ  Petition No.48 1991 filed  by  Ravi  Naik challenging  the order of the his disqualification  made  by the  Speaker  on 15.2.1991 was dismissed as not  pressed  by him, on 22.4.1991. On  8.1.1992, Writ Petition No.11 of 1992 was filed  by  Dr. Kashinath Jalmi and Ramakant Khalap challenging the order of review  dated 8.3.1991 passed by the Acting  Speaker,  inter alia  on the ground that the Speaker did not have any  power to  review the earlier order of disqualification made  under the  Tenth Schedule to the Constitution of India.  The  High Court  by  the order dated 4.2.1992 upheld  the  preliminary objection  of Ravi S. Naik that the writ it  petition  filed ten months after the date of the impugned order, was  liable to  be  dismissed at the admission stage on  the  ground  of laches.   This order, dismissing the writ petition for  this reason  alone,  is challenged in Civil Appeal  No.  1094  of 1992. After the dismissal of writ petition No.11 of 1992,  another Member  of  the Goa Assembly, Churchill  Alemao  filed  writ petition No.70 of 1992, also challenging the order of review dated 8.3.1991 made by the Acting 829 Speaker setting aside the earlier order dated 15.2.1991 made by the Speaker disqualifying Ravi Naik, on similar  grounds. The High Court dismissed writ petition No.70 of 1992 also at the  admission stage, for the same reason, on the ground  of laches.  Civil Appeal No.1096 of 1992 by Churchill Alemao is against  the order dated 24.2.1992 dismissing writ  petition No.70 of 1992. On  10.12.1990, Ramakant D. Khalap applied to  the  Speaker, Surendra  V.  Sirsat  seeking  disqualification  of   Sanjay Bandekar  and  Ratnakar  Chopdekar as  Members  of  the  Goa Legislative  Assembly,  for the defection  under  the  Tenth Schedule.   On  11.12.1990, the Speaker  served  notices  on these Member.  On 13.12.1990, Bandekar and Choopdekar  filed writ petition No.321 of 1990 at the Goa Bench of the  Bombay High Court challenging the show cause notices issued to them by  the  Speaker.  On the same day i.e. on  13.12.1990,  the Speaker,  Surendra V. Sirsat made the  orders  disqualifying Bandekar and Chopdekar as Members of the Assembly, under the Tenth Schedule.  On 14.12.1990. Writ Petition No.321 of 1990 was  amended  to challenge the  orders  of  disqualification dated  13.12.1990 made by the Speaker against  Bandekar  and Chopdekar.   The  Writ  Petition was admitted  by  the  High Court,  and  an  interim order made staying  the  orders  of disqualification  dated  13.12.1990  made  by  the  Speaker. Unlike  the writ petition No.48 of 1991 by Ravi  Naik  which was dismissed as not pressed on 22.4.1991 after the order of review  made by the Deputy Speaker, writ petition No.321  of 1990 by Bandekar and Chopdekar is still pending in the  High Court with the interim order made therein subsisting. In the meantime, in a manner similar to that in the case  of Ravi Naik, the Deputy Speaker functioning as the Speaker, on applications  made to him for the purpose, passed orders  on 7.3.1991,  purporting  to  exercise  the  power  of  review,

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whereby  the  orders dated 13.12.1990 made  by  the  Speaker disqualifying   Bandekar  and  Chopdekar  under  the   Tenth Schedule  have  been set aside.  This led to the  filing  of writ  petition  No.  8  of 1992 by  Ramakant  D.  Khalap  on 7.1.1992  at  the  Goa  Bench  of  the  Bombay  High  Court, challenging  the orders of the review dated 7.3.1991  passed by  the Acting Speaker.  This writ petition also,  has  been similarly  dismissed  merely  on the  ground  of  laches  on 4.2.1992. Civil Appeal No.1095 of 1992 has, therefore,  been filed against dismissal of writ petition No.8 of 1992. 830 This is how the same questions relating to laches justifying dismissal of these writ petitions, and the power of  review, if  any, of the Speaker under the Tenth Schedule, arise  for decision in these appeals. The  rival  contentions  may now  be  mentioned.   Shri  Ram Jethmalani  for the appellant in C.A. No.1094 of 1992,  Shri Harish  Salve for the appellant in C.A. No.1095 of 1992  and Shri  R.K.  Garg for the appellant in C.A. No.1096  of  1992 advanced  substantially similar arguments, to  contend  that dismissal  of  the writ petitions by the High Court  on  the ground  of laches is insupportable, in the present  context, where  challenge to the order of review made by the  Speaker under the Tenth Schedule is on the ground of nullity,  since the Speaker has no power of review under Tenth Schedule, and that  the   order  of review being a  nullity,  must  be  so declared.   In reply, Shri F.S. Nariman for respondent  Ravi S. Naik in Civil Appeal Nos. 1094 and 1096 of 1992, and Shri Ashok Desai for respondents Bandekar and Chopdekar in  Civil Appeal No.1095 of 1992, strenuously urged that the  exercise of power under Article 226 of the Constitution being discre- tionary, the refusal to exercise that power at the  instance of  the  writ  petitioners  was a  proper  exercise  of  the discretion, which does not call for any interference by this court  in  exercise of its power under Article  136  of  the Constitution.   Both  the learned counsel, in  their  reply, further  submitted,  that  by the very nature  of  the  high office  of  the Speaker and the finality  attaching  to  the order  made  by  the  Speaker under  para  6  of  the  Tenth Schedule, the power of the review inheres in the Speaker for preventing  miscarriage of justice, in situations  when  the Speaker  himself  is  of the view that  continuance  of  his earlier   order   of   disqualification   would   perpetuate injustice.   It  was  further  submitted  by  them,  in  the alternative,  that in view of the limited scope of  judicial review of the Speaker’s order of disqualification made under para  6  of  the Tenth Schedule, as  held  in  the  majority opinion  in  Kihoto Hollohan v. Zachillhu and  Ors.,  [1992] Supp.  2  SCC 651, it is implicit that at  least  a  limited power of review inheres in the Speaker, to correct  palpable errors  outside  the scope of the  limited  judicial  review available against the order of disqualification made by  the speaker  under  the Tenth Schedule.  It was urged  by  them, that   the   alleged   infirmities   in   the   orders    of disqualification  made  in the present case by  the  Speaker fell  within,  at least this limited power of  review  which inheres  in  the  Speaker.  Shri Nariman, as  well  as  Shri Desai,  strongly  relied on the majority opinion  in  Kihoto Hollohan to support these submissions. 831 The last alternative submission of Shri Nariman was, that in case  there is no power of review in the Speaker  under  the Tenth Schedule, as a result of which the orders made by  the Acting  Speaker in purported exercise of that power have  to be declared nullity and ignored, then writ petition No.48 of

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1991  by  Ravi  S. Naik being dismissed as  not  pressed  on 22.4.1991 because the order of his disqualification had been set aside by the order of review, must be revived along with the  interim stay granted therein to enable Ravi S. Naik  to pursue  the  remedy which he had invoked, to  challenge  the order  of  his disqualification which is  open  to  judicial review.   This  submission  of  last  resort  made  by  Shri Nariman, was strongly opposed by Shri.  R.K. Garg  appearing for  the appellant Church Alemao.  On the other  hand,  Shri Ram Jethmalani appearing for the appellants in C.A. No.1094, not only did not oppose such a direction being given, but in his  opening address itself suggested this as the  equitable course  to adopt.  But for the stand taken on  this  aspect, there was no difference in the submissions of Shri Garg  and Shri Jethmalani. Both  sides attempted to refer to the facts leading  to  the making of the orders of disqualification of the Members, and the  merits thereof However, we do not propose to advert  to them,  as  we had indicated to the learned  counsel  at  the hearing, since those aspects will have to be gone into ,  in the  first  instance by the High Court, on the view  we  are taking  in  these appeals and, therefore, we would  like  to avoid  the  likelihood of any possible prejudice  to  either side  resulting from any reference made by us to  the  same. Accordingly,  we are confining ourselves only to  the  facts and  the arguments relating to the aforesaid two  questions, which  alone  arise  before us.  We may add,  that  for  the purpose of these appeals, it has been assumed by both  sides that  the  Deputy Speaker functioning as the  Speaker  would have  the  powers of the Speaker under  the  Tenth  Schedule including  that  of review, if any.   The  further  question whether the Deputy Speaker, who discharging the functions of the  Speaker,  has all the powers of the Speaker  under  the Tenth  Schedule  is, therefore, undisputed for  the  present purpose. We shall now consider the aforesaid two main questions which arise  for  decision  in  the  present  case.   Any  further question arising for decision, in case both these  questions are answered in favour of the appellants, will be considered thereafter. 832 LACHES- The  High Court has taken the view that the impugned  orders of review having been made by the Acting Speaker on 7th  and 8th  March, 1991, the writ petitions challenging them  filed on 7.1.1992, 8.1.1992 and 10.2.1992 were highly belated and, therefore,  liable to be dismissed merely on the  ground  of laches.   It is for this reason that they were dismissed  at the  admission  stage  itself,  sustaining  the  preliminary objection  taken on this ground by Ravi S.  Naik,  Chopdekar and Bandekar, in whose favour the orders of review had  been made.   The High Court has referred to certain decisions  of this Court for applying the doctrine of laches, and declined to consider the merits of the main point raised in the  writ petitions,  that  the  Speaker does not have  any  power  of review acting under the Tenth Schedule.  The High Court  has also  held as untenable, the explanation given by  the  writ petitioners that uncertainty of the law settled only by  the decision  of this Court in Kihoto Hollohan (supra)  rendered on  12th November, 1991 was the reason for not filing  those writ petitions earlier.  Learned counsel for the  appellants have  assailed application of the doctrine of laches in  the present   situation,   and  also  contended  that   if   any explanation was needed for the intervening period,  pendency of the question of constitutional validity of Tenth Schedule

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itself in this Court was sufficient to explain the period up to  the  date of the decision, and the writ  petitions  were filed  soon  thereafter.  It was also submitted  by  learned counsel  for the appellants, that the continuance in  office of disqualified persons, even now, provides recurring  cause of  action, since the continuance in office  without  lawful authority  of  these  persons,  one of  whom  is  the  Chief Minister  of the State of Goa, is against public policy  and good  administration.   It was submitted, the  Court  cannot decline to examine the validity of the authority under which they  continue to hold office.  On this basis it  was  urged that the mere delay, if any, in challenging the legality  of the  authority under which these three persons  continue  to hold  office,  after being disqualified as  Members  of  the Assembly,  could not be a valid justification for  the  High Court to refuse to examine the main question of existence of power  of  review  in the Speaker  acting  under  the  Tenth Schedule,  since  the  discretion of the  High  Court  under Article   226   of  the  Constitution  must   be   exercised judicially,   so  as  not  to  permit  perpetuation  of   an illegality.   Shri  Jethmalani  also  submitted,  that   the doctrine  of laches does not apply where declaration  sought is of nullity, in order to prevent its continuing operation, and laches is not relevant in the domain of public 833 law  relating  to  public office, where the  purpose  is  to prevent an usurper from continuing to hold a public office. Shri  Harish  Salve  adopted  these  arguments  and  further submitted  that Dr. Kashinath Jalmi and Ramakant Khalap  had consistently  taken the stand, that the Speaker’s  order  of disqualification is final and not open to review by  anyone. He submitted, that for this reason no prevarication in their stand can be attributed to either of them, as has been  done against  Churchill  Alemao, by the learned counsel  for  the respondents,  for  his  support  to  Ravi  Naik  during  the intervening  period.   It was further urged by  the  learned counsel  for the appellants, that the motive and conduct  of the  writ  petitioners in such matters is  not  decisive  or fatal  to  the enquiry claimed in the writ petition,  in  as much as the relief claimed in the writ petition was not  for personal  benefit  of  the writ petitioner  but  for  larger public  interest and good governance of the State of Goa  by persons holding public offices, including that of the  Chief Minister, only by lawful authority. Both  Shri F.S. Nariman and Shri Ashok Desai  supported  the Judgment  of the High Court, and strenuously urged that  the High  Court  in exercise of its  discretionary  power  under Article 226 of the Constitution was justified in refusing to exercise  that power at the behest of the  writ  petitioners who  were disentitled to grant of the relief on  account  of their  conduct and motive for filing the writ petition.   It was  submitted  by them that the writ  petitioners,  namely, Churchill  Alemao, Dr. Kashinath Jalmi and  Ramakant  Khalap are  all  persons who, at different times,  were  associated with  Ravi S.Naik as Chief Minister and were also  obtaining benefit from him, which conduct coupled with their motive of getting more political power to themselves, disentitled them from  claiming the relief.  Shri Nariman submitted that  the doctrine  of  laches  applies  equally  to  a  writ  of  quo warranto,  as it does to a writ of certiorari.  It was  also submitted  by learned counsel for the respondents  that  the explanation   given  for  the  delay  in  filing  the   writ petitions,  challenging  the orders of review  made  by  the Acting  Speaker, is facile and untenable It  was  submitted, that  notwithstanding  the pendency of the question  of  the

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validity of the Tenth Schedule in this Court, writ petitions were being filed challenging the orders made by the Speakers under  the  Tenth Schedule.  It was submitted that  all  the writ  petitioners,  in view of their status  in  life,  were fully  aware  that the Speaker’s order of  review  could  be challenged  by  a writ petition, even  before  the  decision rendered by this Court on 12th November, 1991 834 in Kihota Hollohan.  The main thrust of the argument of  the counsel for the respondents was, that in these circumstances the  High  Court  was  justified  in  dismissing  the   writ petitions at the threshold in exercise of its  discretionary power under Article 226 of the Constitution, and, therefore, the  power under Article 136 of the Constitution also  being discretionary, this Court would be justified in refusing  to interfere  with  the  discretion so exercised  by  the  High Court. Having  given  our  anxious consideration  to  the  forceful submissions  of learned counsel for the both sides, we  find ourselves  unable to sustain the judgment of the High  Court that the writ petitions were liable to be dismissed,  merely on the ground of laches. One of the submissions of Shri Nariman was, that even though there  is no period of limitation prescribed by statute  for filing a writ petition, yet in a case like the present,  the apt  analogy is of an election petition calling in  question an  election, which is required to be filed within  45  days from  the  date of election of the  returned  candidate,  as provided  in  Section  81(1) of the  Representation  of  the People  Act, 1951, to indicate that unless such a  challenge is  made promptly the courts would refuse to examine such  a question  after the lapse of a reasonable period.   On  this basis, he argued that a writ petition filed after ten months of  the  date  of the order of review made  by  the  Speaker acting  under the Tenth Schedule, must be treated as  unduly delayed and is liable to rejection on the ground of  laches, as has been done by the High Court in the present case.   We are unable to accept this part of the submission since it is not an apt analogy. The remedy of an election petition is statutory, governed by the  limitation prescribed therein, unlike the remedy  under Article  226 of the Constitution.  That apart,  the  analogy which  is more apposite, is the decision on questions as  to the  disqualification of Members in accordance with  Article 103 in the case of a Member of Parliament or Article 192  in the case of a Member of a House of a Legislature of a State. For raising a dispute, giving rise to any question whether a Member  of  a  House  has  become  subject  to  any  of  the disqualification  mentioned in clause (1) of Article 102  or 191, as the case may be, there is no prescribed  limitation, and  so  also for challenging the  decision  rendered  under Article 103 or 192 by a writ petition.  The question of  the disqualification of a Member on the ground of defection  and the Speaker’s order thereon, rendered under the 835 Tenth Schedule, is of a similar nature and not based on  the result  of  an election which can be challenged only  by  an election  petition  in  accordance with  the  provisions  of Representation of the People Act, 1951. The  decision by a constitution bench in Brundaban Nayak  v. Election  Commission of India and another, [1965] 3  SCR  53 indicates  the  significance  of deciding  the  question  of disqualification  of a Member as soon as it arises, even  at the  instance  of  a citizen, since  ’the  whole  object  of democratic  elections is to constitute legislative  chambers

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composed of members who are entitled to that status, and  if any  member forfeits that status by reason of  a  subsequent disqualification,  it  is in  public  interest,’............ that the matter was decided. There is no indication in Brundaban Nayak, that the delay in raising   the   question   of   disqualification    provides justification  for  refusing  to decide the  same,  and  the emphasis  really  is on a prompt decision by  the  competent authority on the question being raised, since it is not  the interest of the constituency which such a Member represents, to delay the decision.  This decision is an indication  that the   authority   competent  to  decide  the   question   of disqualification  must  act promptly in deciding  the  same, once  it is raised even by a citizen, in order to prevent  a disqualified Member from representing the constituency after incurring a disqualification subsequent to his election,  so long as the question remains a live issue during the  tenure of the Member.  This aspect is significant for dealing  with the question of laches in the present case. In  order  to justify dismissal of the  writ  petitions  for laches  Shri Nariman placed reliance on  certain  decisions, some  of which have been referred by the High  Court.   Shri  Nariman argued that the doctrine of laches applies as much to  the  writ  of  quo warranto, as it does  to  a  writ  of certiorari,  and that the oblique motives of the  petitioner together  with his conduct may disentitled him to  grant  of the relief claimed by such a petition.  We now refer to some of these decisions. The basic decision for submission on the doctrine of laches, relied  on,  is  The Lindsay Petroleum  Company  v.  Prosper Armstrong Hurd, Abram Farewell and John Kemp, 1874 L.R. 5 PC 221  which has been followed in the decisions of this  Court in The Moon Mills Ltd. v. M.R. Meher, President,  Industrial Court,  Bombay  and Ors., AIR 1967 SC 1450  and  Maharashtra State  Road  Transport Corporation v. Shri  Balwant  Regular Motor Service 836 Amravati & Ors., [1969] 1 SCR 808.  In The Moon Mills Ltd, a writ  of  certiorari  was sought  to  challenge  a  decision affecting the rights of the Petitioner, wherein the question arose  whether the petitioner could be denied the relief  on the  ground of acquiescence or laches.  In that  context  it was  observed  that the issue of a writ of certiorari  is  a matter  of sound discretion, and that ’the writ will not  be granted if there is such negligence or omission on the  part of the applicant to assert his right as taken in conjunction with  the  lapse  of time and  other  circumstances,  causes prejudice  to the adverse party.’ It was observed, that  the exercise of discretion under Article 226 to issue a writ  of certiorari  is  based on the principle to  a  great  extent, though  not  identical  with, similar  to  the  exercise  of discretion  in the Court of Chancery.’ For  this  principle, involving  the  doctrine  of laches  in  courts  of  equity, reference was made to the observation of Sir Barnes  Peacock in  Lindsay Petroleum Co. The decision was followed in,  and the  principle reitered in Maharashtra State Road  Transport Corporation  again  in the context of the  discretion  under Art. 226 of the Constitution to issue a %Wit of  certiorari. Like  all  equitable  principles,  the  doctrine  of  laches applies  where  it would be unjust to give a remedy  to  the petitioner,  who is disentitled to grant of the same by  his conduct  or any other relevant circumstances, including  the creation  of  third  party  rights  during  the  intervening period,  which  are  attributable  to  the  laches  of   the petitioner.

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Strong reliance was placed on the decision in M/s Tilokchand   Motichand & Ors. v. H.B. Munshi & Anr., [1969] 1 SCC  110, wherein  relief  under Article 32 of  the  Constitution  was refused on the ground of delay, to contend that if delay can be fatal under Article 32, itself a fundamental right, it is more so in a petition under Article 226 of the Constitution, wherein grant of the relief is discretionary.  The  decision of  this Court in Shri Vallabh Glass Works Ltd. and Anr.  v. Union  of  India and Ors., [1984] 3 SCC 362  and  M/s  Delhi Rohtas Light Railway Company Lid v. District Board,  Bhojpur and Ors., [1992] 2 SCC 598 were also cited on the point.  In Shri  Vallabh  Glass Words Ltd, a writ petition  by  way  of alternative  remedy  was  filed after  expiry  of  statutory period  of  limitation prescribed for filling suit  for  the same  claim,  and yet that alone was not held  to  be  fatal taking  the view that reasonableness of delay in filing  the writ  petition is to be assessed having regard to the  facts and  circumstances  of the case, since grant of  the  relief under  Article 226 of the Constitution is a matter of  sound judicial discretion and governed by the doctrine of laches. 837 In   M/s  Dehri  Rohtas  Light  Railway   Company   Limited, Tilokchand  Motichand’s  case was distinguished and  it  was indicated that the test is not to physical running of  time’ and ’the real test to determine delay in such cases is  that the  petitioner  should  come to the  writ  court  before  a parallel right is created.’ It  is  significant  that  all  these  decisions  relate  to enforcement of personal rights, wherein a writ of certiorari was  claimed  for  quashing some  decision  adverse  to  the petitioner  and  neither of them related to assertion  of  a public  right  in  the nature of a  class  action.   In  the present  case  the claim is for the issue of a writ  of  quo warranto  on  the ground that Ravi S.  Naik,  Chopdekar  and Bandekar   are  holding  public  office,   having   suffered disqualification  as  Member of the Assembly  subsequent  to their election, and of them, Ravi S. Naik continues to  hold the high public office of Chief Minister of Goa.  The relief claimed  in  the  present case is not the  conferment  of  a personal  benefit to the petitioners, but for  cessation  of the  usurpation of public offices held by these persons,  if the  contention of the petitioners be right that  orders  of review setting aside the earlier orders of  disqualification made by the Speaker under the Tenth Schedule are nullity The  decision of the Privy Council in the Lindsay  Petroleum Company was followed by the House of Lords in Emile Erlanger and  Ors.  v. The New Sombrero Phosphate Company  and  Ors., [1878] 3 Appeal Cases 1218 wherein reliance on the  doctrine of  laches by Courts of Equity for refusing relief where  it would   be  practically  unjust  to  grant  the  same,   was reiterated.   It was also reiterated that two  circumstances always  important in such cases are the length of the  delay and  the nature of the acts done during the interval,  which might affect the justice of the cause. Once  again  this  principle was  reiterated  by  the  Privy Council  in Anachuna Nwakobi, The Osha of Obosi and Ors.  v. Engene  Nzekwu and Anr., [1964] 1 WLR 1019 quoting the  same passage from The Lindsay Petroleum Company. None  of these cases relate to the writ of quo warranto  and in them the relief claimed was only for the personal benefit of  the claimant.  We are not persuaded to hold that on  the basis of these decisions, some of which are referred by  the High  Court,  the writ petitions in the present  case  could have  been dismissed merely on the ground of laches  of  the petitioners.

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838 We  would now refer to the contention of Shri  Nariman  that this  principle  attracting the doctrine of  laches  equally applies  to  a writ of Quo Warranto, sought in  the  present case.  For this purpose, Shri Nariman placed reliance on the decision  in Everett v. Griffiths, [1924] 1 K.B. 941 at  959 in  addition to Halsbury’s Law of England,  Fourth  Edition, Reissue, Volume 16, Para 926. In  Halsbury’s Law of England the statement of law is  based primarily  on  the  decision of the  Privy  Council  in  The Lindsay  Petroleum Company and those following it.  We  have already indicated the inapplicability of those decisions  in the  present case.  At the same place one of  the  decisions referred  to,  in  foot  note 3 of  para  926,  is  A.G.  v. Proprietors  of the Bradford Canal (1866) LR 2 Equity  Cases 71) for the proposition that "Laches is not imputable to the Crown  or  to the Attorney General suing on  behalf  of  the public.’ In this decision distinction was drawn between  the claim  on  behalf of the public and that  by  an  individual plaintiff indicating that even though delay or laches may be attributable to an individual plaintiff, it may not be so to an action brought on behalf of the public.  This is more so, when the grievance made is that a person continues to hold a public office without the authority of law. Shri  Nariman  laid great stress on  Everett  v.  Griffuths, (1924) 1 K.B. 941 at page 959 where it is stated:               "It  is plain, however, that in  quo  warranto               proceedings  the  Court can and  will  inquire               into the conduct and motives of the relator." Reference  is  made  to a passage from  Halsbury’s  Laws  of England and some earlier decisions which have been  referred for treating the point as well settled.  These  observations were  made after examining the claim on merits, and in  view of  the fact that the plaintiff was known for  his  frequent persistent  and  fruitless  litigation  proceedings,  having commenced primarily with the motive of resentment.  In spite of  these  strong  observations in the  judgment  about  the conduct and motive of the plaintiff the court did not refuse to go into the points raised, for that reason alone.  In our opinion  this decision can not persuade us to hold that  the dismissal at the admission stage of the present petitions by the  High  Court,  on the ground merely  of  laches  can  be sustained,  when  the  alleged  usurpation  of  the   public offices,  including that of the Chief Minister of the  State of Goa, continues. 839 Reference  was  made by Shri Nariman as well as  Shri  Ashok Desai  to Rules 1 and 4 of Order 53 of the Rules of  Supreme Court  and  Section  30  of  the  Supreme  Court  Act,  1981 (England)  wherein limitation is prescribed for  application for  judicial review and delay in applying for relief ’LS  a ground  for denying the relief, unless the  Court  considers that there is good reason for extending the period of making the  application.   It was urged that these  provisions  are substantially  the  same  as the  earlier  English  Practice according to which, as held in Everett v. Griffuths  (supra) the  order is not issued as of course, and the  conduct  and motives  of the applicant may be enquired  into.   Reference was  also made to R. v. Stratford-on-Avon  District  Council and  Anr.,  ex parts Jackson (1985) 3 All ER 769  which  was followed  by  the House of Lords in Caswell and  Another  v. Dairy Produce Quota Tribunal for England and Wales [1990]  2 WLR 1320. In our opinion, the position remains the same.  Emphasis  in these   decisions   is   on   public   interest   and   good

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administration, and the jurisdiction of the Court to  extend time  in suitable cases for making such an application.   In Caswell,  the  House of Lords took into account  the  larger public  interest  for the view that the  interest  of   good administration  required non-interference with the  decision which  was challenged after a lapse of a considerable  time, since  any  interference  at that stage,  when  third  party interests  had  also arisen, would be  detrimental  to  good administration. In our opinion the exercise of discretion by the court  even where  the application is delayed, is to be governed by  the objective   of   promoting   public   interest   and    good administration;  and  on that basis it cannot be  said  that discretion would not be exercised in favour of  interference where  it is necessary to prevent continuance of  usurpation of office or perpetuation of an illegality. We may also advert to a related aspect.  Learned counsel for the  respondents  were  unable to dispute,  that  any  other member  of  the  public, to whom  the  oblique  motives  and conduct  alleged against the appellants in the present  case could  not  be attributed, could file such a  writ  petition even  now for the same relief, since the alleged  usurpation of  the  office is continuing, and this  disability  on  the ground  of oblique motives and conduct would not  attach  to him.  This being so, the relief claimed by the appellants in their  writ petitions filed in the High Court being  in  the nature  of  a  class  action,  without  seeking  any  relief personal to them, should not 840 have  been  dismissed merely on the ground of  laches.   The motive  or  conduct  of the appellants, as  alleged  by  the respondents,  in such a situation can be relevant  only  for denying them the costs even if their claim succeeds, but  it cannot be a justification to refuse to examine the merits of the  question  raised  therein, since that is  a  matter  of public  concern  and relates to the good governance  of  the State itself Shri  R.K. Garg submitted that laches of the appellants  can not  legitimise  usurpation  of  office  by  Ravi  S.  Naik, Chopdekar  and Bandekar; and Shri Jethmalani submitted  that manifest  illegatlity  will not be sustained solely  on  the ground of laches when it results in continuance in a  public office of a person without lawful authority.  The fact  that the  situation  continues  unaltered,  since  these  persons continue  to  hold  the public offices, to  which  they  are alleged  to be disentitled, is in our opinion sufficient  to hold  that  the  writ  petitions  ought  not  to  have  been dismissed  merely on the ground of laches at  the  admission stage, without examining the contention on merits that these offices  including that of the Chief Minister of the  State, are being held by persons without any lawful authority.  The dismissal of the writ petitions by the High Court merely  on this ground can not, therefore, be sustained. The further question now is of the availability of power  of review in the Speaker under the Tenth Schedule. POWER OF REVIEW The  challenge to the orders dated 7th and 8th  March,  1991 made  by the Acting Speaker under the purported exercise  of power  of  review, setting aside the earlier orders  of  the Speaker  disqualifying Ravi S. Naik, Chopdekar and  Bandekar under  the Tenth Schedule, is made by the appellants on  the ground  that the Speaker does not have any power  of  review under  the  Tenth Schedule.  It was stated in  Patel  Narshi Thakershi  and  Ors. v. Pradyumansinghji  Arjunsinghji,  AIR 1970 SC 1273, thus

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             "It  is well settled that the power to  review               is   not  an  inherent  power.   It  must   be               conferred  by  law either specifically  or  by               necessary implication." This position is not disputed before us.  Admittedly,  there is  no express provision conferring the power of  review  on the Speaker in the 841 Tenth Schedule.  The only question therefore, is whether the Speaker acting as the authority under the Tenth Schedule has the power of review by necessary implication, empowering him to  set aside the earlier order of disqualification made  by him on merits. On  behalf  of the appellants it was contended that  such  a power  of review in the Speaker can not be implied from  the provisions  in  the  Tenth Schedule,  and  the  only  remedy available  to the aggrieved Member is by judicial review  of the order of disqualification.  In reply it was contended on behalf of the respondents, that the power of review  inheres in  the  Speaker under the Tenth Schedule, in  view  of  the finality  attaching  to the order made under.para 6  of  the Tenth  Schedule.  It was submitted that this inherent  power of review in the Speaker must be read in the Tenth Schedule, at  least  up to 12th November, 1991 when  the  Judgment  in Kihoto  Hollohan was rendered declaring the availability  of judicial    review   against   the   Speaker’s   order    of disqualification  made under para 6 of the  Tenth  Schedule. It  was  further  submitted  by  learned  counsel  for   the respondents,  that  only  a limited  judicial  review  being available  against the Speaker’s order of  disqualification, as  held by the majority in Kihoto Hollohan, some  power  of review  inheres  in the Speaker even thereafter  to  correct palpable  errors  falling  outside  the  limited  scope   of judicial review.  It was then submitted, that the defects in the  orders of disqualification made by the Speaker  in  the present  case,  which were corrected by  review,  were  such defect  which come within the ambit of the limited power  of review available to the Speaker in addition to  availability of  judicial  review as declared in Kihoto  Hollohan.   Both sides  referred  to  the  merits  of  the  orders  of   dis- qualification  made  by  the Speaker  but  we  refrain  from adverting  to this aspect as indicated earlier, in  view  of the  conclusion reached by us that the Speaker has no  power of  review  under  the  Tenth  Schedule,  and  an  order  of disqualification  made  by him under para 6  is  subject  to correction  only  by  judicial  review  as  held  in  Kihoto Hollohan.   Accordingly, the alleged defects  would  require examination  by judicial review in the writ petitions  filed in    the   High   Court   challenging   the    orders    of disqualification. Shri  Nariman contended that the power of review inheres  in the Speaker under the Tenth Schedule as a necessary incident of his otherwise plenary jurisdiction to decide the question of  disqualification.   He submitted that according  to  the majority in Kihoto Hallohan only ’limited scope of  judicial review’ is available, and, therefore, the power of review 842 inheres  in the Speaker to review his own orders on  grounds analogous  to  those  in Order 47, Rule  1,  Code  of  Civil Procedure. In support of this submission Shri Nariman placed reliance  on  the decisions in Shivdeo Singhs  and  Ors.  v. State  of  Punjab and Ors., AIR 1963 SC 1909  and  Grindlays Bank Ltd. v. Central Government Industrial Tribunal and Ors. [1981] 2 SCR 341.   Another    limb   of   Shri    Nariman’s submission  is that the majority opinion in Kihoto  Hollohan

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does  not  declare  para  7 of  the  Tenth  Schedule  to  be unconstitutional  from the inception, and Article 13  having no application to a constitutional amendment, the  existence of  para  7  in the Tenth Schedule  till  the  judgment  was rendered  in Kihoto Hollohan on 12th November, 1991 must  be accepted,   and  the  provisions  in  the  Tenth   Schedule, including  para 7 therein, must be examined for  determining the  implied  power  of  review in  the  Speaker  till  12th November,  1991.  On this basis, it was submitted  that  the finality  declared in para 6 of the Tenth  Schedule  coupled with  the  ouster of judicial review in para  7  re-enforces existence  of the implied power of review in the Speaker  at least till 12th     November,  1991,  prior  to  which   the impugned  orders of review were made in the present case.  A further  submission made by Shri Nariman was that by  virtue of  para  6(2) read with para 8 of the Tenth  Schedule,  the general  rules  of  procedure as well as Rule  7(7)  of  the Members of the Goa Legislative Assembly (Disqualification on ground  of Defection) Rules, 1986 applied, under  which  the Speaker  ordinarily  has  the  power  of  review.  In   this connection,  reference was made particularly to Rule  77  of the  Rule  of Procedure and Conduct of Business of  the  Goa Legislative  Assembly, regarding breach of  privilege  which enables the Speaker to reconsider his earlier decision,  and Rule  7(7)  of the Members of the Goa  Legislative  Assembly (Disqualification  on  grounds of  defection)  Rules,  1986, relating    to  the procedure. It was submitted  that  these general rules relating to Speaker’s power while dealing with a  breach  of privilege can be read to  confer   an  express power of review. The  last limb of Shri Nariman’s contention may be  disposed of,  at the outset.  There is no scope for reading into  the Tenth  Schedule  any of the powers of the Speaker  which  he otherwise  has  while  functioning as the  Speaking  in  the House, to clothe him with any such power in his capacity  as the statutory authority functioning under the Tenth Schedule of the Constitution.  This is well settled by the  decisions of  the Court relating to Speaker’s orders under  the  Tenth Schedule.  Accordingly, any power of the  Speaker, available to him while functioning in the House, is not to be 843 treated  as  his power or privilege as the  authority  under the Tenth Schedule. The  majority  opinion in kihoto Hollohan was  pressed  into service  by  Shri  Nariman as well as Shri  Ashok  Desai  to support  several  aspects of their submissions. We  may  now refer to that opinion. In  Kihoto  Hollohan  there was no  difference  between  the majority  and  minority opinions on the nature  of  finality attaching  to the Speaker’s order of  disqualification  made under  para  6 of the Tenth Schedule, and also that  para  7 therein  was unconstitutional in view of the  non-compliance of   the  proviso  to  clause  2  of  Article  368  of   the Constitution,  by  which judicial review was  sought  to  be excluded. The main difference in the two opinions  was, that according  to the majority opinion this defect  resulted  in the  constitution standing amended from the  inception  with insertion of the Tenth Schedule minus para 7 therein,  while according   to   the  minority  the   entire   exercise   of constitutional amendment was futile and an abortive  attempt to  amend the constitution, since Para 7 was not  severable. According  to the minority view, all decisions  rendered  by the   several  Speakers  under  the  Tenth  Schedule   were, therefore,  nullity and liable to be ignored.  According  to the  majority  view,  para 7 of  the  Tenth  Schedule  being

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unconstitutional  and  severable, the Tenth  Schedule  minus para  7 was validly enacted and, therefore, the orders  made by the Speaker under the Tenth Schedule were not nullity but subject  to judicial review. On the basis  of  the  majority opinion,  this  Court has exercised the  power  of  judicial review  over  the  orders of disqualification  made  by  the speakers from the very inception of the Tenth Schedule,  and the exercise of judicial review has not been confined merely to the orders of disqualification made after 12th  November, 1991  when  the judgment in Kihoto  Hollohan  was  rendered. Venkatachaliah,  J  (as  he then  was)  wrote  the  majority opinion  and,  thereafter, on this  premise,  exercised  the power  of  judicial review over orders  of  disqualification made   prior  to  12.11.1991.  The  basic  fallacy  in   the submission  made  on behalf of the respondents that  para  7 must be treated as existing till 12th November, 1991 is that on  that  view there would be no power  of  judicial  review against  an order of disqualification made by  the   Speaker prior  to 12th November, 1991 since para 7 in express  terms totally excludes judicial review. Accepting   the  submission  of  learned  counsel  for   the respondents  that para 7 must be read in the Tenth  Schedule till 12th November, 1991 when 844 the  judgment  in Kihoto Hollohan was  rendered,  for  which submission  they place reliance on the majority  opinion  in Kihoto  Hollohan, would amount to taking a view contrary  to the decision in Kihoto Hollohan itself, as indicated. At  one  stage,  Shri Nariman also  attempted  to  read  the majority  opinion  in  Kihoto  Hollohan  as  not   expressly declaring para 7 in the Tenth Schedule as  unconstitutional, adding that such a declaration was made only in the minority opinion  which  declared  the entire Tenth  Schedule  to  be unconstitutional.   We  are  unable  to  read  the  majority opinion in this manner.  Any attempt to find support for the submissions  of the respondents, in the majority opinion  in Kihoto Hollohan, is futile. The Constitution Bench decision in Shivdeo Singh and Ors. v. State  of Punjab and Ors. (supra) is distinguishable and  of no assistance to the respondents in the present case.   That was  a case, wherein the High Court had exercised its  power in  a  second writ petition filed under Article 226  of  the Constitution  by  a person who was not made a party  in  the earlier  writ petition, the order made in which was  adverse to  him.  This court held that the second writ  petition  by such  a person was maintainable, and the High Court had  not acted  without jurisdiction in reviewing its previous  order at  the  instance  of a person who was not a  party  to  the previous writ proceedings.  That decision has no application in this situation. Strong  reliance was placed by Shri Nariman as well as  Shri Ashok  Desai  on  the  decision of  a  two  Judge  bench  in Grindlays  Batik Ltd.  It was submitted by learned  counsel, that  in  the  present case the defects  in  the  orders  of disqualification  fell  in the first of the  two  categories mentioned  at  page  347 (SCR), to  which  extent  there  is inherent  power  of  review  in  the  Speaker.   It  may  be mentioned that the decision in Patel Narshi Thakershi & Ors. v.  Pradyumansinghji  Arjunsinghji,  AIR  1970  SC  1273  is referred  and distinguished at page 347 SCR on the facts  of that  case.  In that decision the question was, whether  the Industrial  Tribunal  constituted under Section  7A  of  the Industrial Disputes Act, 1947 had the power to set aside  an exparte award made by it.  It was held with the aid of  Rule 24(b),  Industrial Disputes (Central) Rules, 1957  that  the

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Tribunal had the power of a civil court under Order XVII  of the   Code   of  Civil  Procedure  relating  to   grant   of adjournments  and  therefore, as a necessary  corollary  the power  under Order IX, Rule 13 was attracted to  enable  the Tribunal to set aside an ex 845 parte award.  In our opinion, the decision in Grindlays Bank Ltd.,  wherein certain statutory rules attracted  the  power under Order XVII read with Order IX, Rule 13 of the Code  of Civil  Procedure  in the Tribunal to set aside an  ex  parte award, is clearly distinguishable and is of no assistance in the present case. The  power of review which, it is suggested by  counsel  for the  respondents,  inheres  in  the  Speaker  by   necessary implication  has to be found in the provisions made  in  the Tenth  Schedule alone, and not elsewhere.  Para 7 has to  be treated as non-existent in the Tenth Schedule from the  very inception, as earlier indicated.  As held by the majority in kihoto  Hollohan,  judicial review is available  against  an order  of disqualification made by the Speaker under para  6 of   the  Tenth  Schedule,  notwithstanding   the   finality mentioned  therein.   It  is on account  of  the  nature  of finality  attaching by virtue of para 6, that  the  judicial review  available  against  the Speaker’s’  order  has  been labeled  as limited in para 110 (at page 711 of SCC) of  the decision in Kihoto Hollohan? [1992] Supp 2 SCC 651, and  the expression has to be understood in that sense  distinguished from  the wide power in an appeal, and no more.  As held  in Kihoto Hollohan, the Speaker’s order is final being  subject only to judicial review, according to the settled parameters of  the exercise of power of judicial review in such  cases, which  it  is  not necessary to  elaborate  in  the  present context.   The  existence  of judicial  review  against  the Speaker’s  order  of disqualification made under para  6  is itself a strong indication to the contrary that there can be no  inherent  power of review in the Speaker,  read  in  the Tenth  Schedule  by  necessary implication.   The  need  for correction  of errors in the Speaker’s order made under  the Tenth Schedule is met by the availability of judicial review against the same, as held in Kihoto Hollohan. In our opinion there is no merit in the submission that  the power  of  review  inheres in the Speaker  under  the  Tenth Schedule  as  a necessary incident of  his  jurisdiction  to decide  the  question of disqualification; or  that  such  a power existed till 12th November, 1991 when the decision  in Kihoto Hollohan was rendered; or at least a limited power of review inheres in the Speaker to correct any palpable  error outside the scope of judicial review. CONSEQUENCE On the above view taken by us, the orders dated 7th and  8th March, 1991 made by the Acting Speaker in purported exercise of the power of 846 review are liable to be declared nullity and to be  ignored, with  the  result that the order dated 13th  December,  1990 disqualifying   Chopedekar  and  Bandekar  and  dated   15th February,  1991 disqualifying Ravi S.Naik as Members of  Goa Legislative Assembly would continue to operate. Writ petition No.321 of 1990 filed by Chopdekar and Bandekar challenging the orders of their disqualification is  pending in  the  High  Court wherein an interim  order  staying  the operation of their orders of disqualification is subsisting. Chopdekar  and Bandekar can pursue that remedy to  challenge their  disqualification and no further order is required  to be made by this Court for that purpose.

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However, writ petition No.48 of 1991 which was filed in  the High Court by Ravi S. Naik challenging his disqualification, wherein also an interim order was made staying the operation of  the  order of his disqualification, was not  pressed  by Ravi  S.Naik after the order in purported exercise of  power of  review was made in his favour on 8th March, 1  991  and, therefore,  that writ petition was dismissed as not  pressed on 22.4.1991. The question is of the order, if any, required to be made by this Court in this situation. Shri  Ram  Jethmalani appearing for the appellants  in  C.A. No.1094/92  suggested  that, in all fairness  writ  petition No.48 of 1991 should be revived in the High Court to  enable Ravi S.Naik to pursue his remedy of seeking judicial  review against his disqualification.  On the other hand, Shri  R.K. Garg,  learned  counsel for the appellant  in  Civil  Appeal No.1096/92  opposed the making of such an order.   Both  the learned  counsel, however. submitted that the interim  order of  stay  made therein would not revive even  if  that  writ petition is revived and the High Court will have to consider Afresh  the  question  of making an interim  order,  at  the behest  of  Ravi  S. Naik.  On the  other  hand,  Shri  F.S. Nariman  appearing  for Ravi S. Naik in both  these  appeals submitted that it would be just in the circumstances of  the case, to revive writ petition No.48 of 1991 for decision  on merits  by  the  High Court and the interim  order  of  stay should also enure to the benefit of Ravi S. Naik during  the pendency of the writ petition, more so when he is the  Chief Minister  of the State and refusal of stay would  result  in uncertainty in the State. Having given our anxious consideration to the matter we have no  doubt  that  the fact to Ravi S. Naik  being  the  Chief Minister of the State 847 of Goa is a wholly irrelevant circumstance for this purpose. All the same an order which would be just and proper to make in  the  circumstances of this case has to be  made,  taking into  account  also the fact that the law was  declared  and came  to  be settled only by the decision of this  Court  in Kihoto Hollohan, after making of the orders of review by the Acting  Speaker  in  the  present  case,  where  after  writ petition  No.48  of 1991 was dismissed as not  pressed.   We have  no doubt that Article 142 of the Constitution  enables us,  if necessary, to enlarge the powers of this  Court  for making  an  order  which  would be just  in  the  facts  and circumstances of this case. In  our  opinion,  it would be appropriate  to  revive  writ petition  No.48  of 1991 for hearing on merit  by  the  High Court as suggested even by Shri Ram Jethmalani, and to  also order  interim  stay  of  the  operation  of  the  order  of disqualification dated 15.2.1991 made by the Speaker,  which was  the  situation prevailing till that writ  petition  was dismissed  as not pressed.  It is, however,  necessary  that writ petition No.48 of 1991 and also writ petition No.321 of 1990  should  be heard and disposed of at the  earliest,  on account of their expediency. RELIEF Accordingly, we allow these appeals in the following manner (1)  The impugned orders of the High Court,  dated  4.2.1992 dismissing  writ  petition No.11 of  1992;  dated  24.2.1992 dismissing  writ petition No.70 of 1992; and dated  4.2.1992 dismissing writ petition No.8 of 1992 are set aside; (2)  Writ petition Nos.11 of 1992, 70 of 1992 and 8 of  1992 are  allowed  declaring  that  orders  dated  7.3.1992   and 8.3.1992 made by the Acting Speaker in purported exercise of power of review are nullity and liable to be ignored.

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(3)  Consequently,  orders  dated  13.12.1990  made  by  the Speaker disqualifying Ratnakar Chopdekar and Sanjay Bandekar continue to operate and writ petition No.321 of 1990 pending in the High Court has to be heard and decided on merits,  in accordance with law; (4)  Similarly,  order dated 15.2.1991 made by  the  Speaker disqualifying  Ravi  S. Naik continues to operate  and  writ petition  No.48  of 1991 filed in the High Court by  him  is revived by setting aside the High Court’s order 848 dated  24.2.1991  dismissing  that  writ  petition  as   not pressed.   The High Court will proceed to decide  that  writ petition also on merits, in accordance with law-, (5) The interim order staying the order of  disqualification in  writ  petition No.48 of 1991 is revived.   However,  the parties  would be at liberty to apply to the High Court  for modification  or cancellation of the said interim  order  or for any other interim relief or direction, if so advised; (6)  The  High  Court should hear and dispose  of  the  writ petition No.48 of 1991 itself on merits as expeditiously  as possible, preferably by 30th April, 1993; (7)  Writ  Petition  No321  of 1990  filed  by  Ratnakar  M. Chopdekar  and Sanjay Bandekar pending in the High Court  be also  heard  and disposed of as expeditiously  as  possible, preferably by 30th April, 1993. (8)  Parties are directed to appear at the Goa Bench of  the Bombay  High Court on 6th April, 1993, without  any  further notice, for obtaining further directions in this behalf. (9) In the circumstances of the case, the parties will  bear their own costs. T.N.A.                              Appeals allowed. 849