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 number call for any interference by this companyrt in exercise of its power under Article 136 of the Constitution.
This order, dismissing the writ petition for this reason alone, is challenged in Civil Appeal No.
On 8.3.1991, the Acting Speaker, Simon Peter DSouza 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.
Civil Appeal No.1095 of 1992 has, therefore, been filed against dismissal of writ petition No.8 of 1992.
Unlike the writ petition No.48 of 1991 by Ravi Naik which was dismissed as number 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.
Civil Appeal No.1096 of 1992 by Churchill Alemao is against the order dated 24.2.1992 dismissing writ petition No.70 of 1992.
The Judgement of the Court was delivered by 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 companymon 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 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, whereby the orders dated 13.12.1990 made by the Speaker disqualifying Bandekar and Chopdekar under the Tenth Schedule have been set aside.
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.
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.
Ashok Desai, F.S. Nariman, R.F. Nariman, P.H. Parekh, Sunil Dogra, J.D. Dwarka Das and S.C. Sharma for the Respondents.
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 number have any power to review the earlier order of disqualification made under the Tenth Schedule to the Constitution of India.
This led to the filing of writ petition No.
On 11.12.1990, the Speaker served numberices on these Member.
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 number pressed by him, on 22.4.1991.
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 Naik as a Member of the Legis lative Assembly on the ground that he had voluntarily given up the Membership of his political party.
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 numbersuch power of review.
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.
The High Court took the view, that the writ petitions were filed after companysiderable delay, and, therefore, upholding the preliminary objection, had to be dismissed merely.
K. Garg, Ram Jethmalani, V.A. Bobde,Harish N. Salve, K.J. John, Ms. Deepa Dixit, Rakesh Gosain, Ms. Rani Jethmalani, K. Dev and Ms. Shanta Ramchand for the Appellants.
on the ground of laches and, therefore, merits of the companytention that the Speaker had numbersuch power of review was number companysidered.
The main questions which arise for decision in these appeals are, therefore, two namely 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 POWER OF REVIEW If so, does the Speaker, acting as the authority under the Tenth Schedule of the Constitution, have numberpower of review, so that any order made by him in purported exercise of the power of review is a nullity?
On 14.12.1990.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
On 18.21991, the High Court passed an interim order in that writ petition staying operation.
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.
During the pendency of this writ petition, on 27.2.1991, Simon Peter DSouza 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 DSouza began functioning as the Speaker in place of Surendra V. Sirsat.
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.
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.
The further question of the companysequence and nature of relief to be granted, would arise only if these questions are answered in favour of the appellants.
AND Civil Appeal No.
of the order of disqualification made by the Speaker.
WITH Civil Appeal No.1095 of 1992.
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.
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.
1094 of 1992.
1096 of 1992.
The same day, i.e. on 4.3.1991, Ravi S. Naik made an application to Simon Peter DSouza, 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.
The last limb of Shri Narimans companytention may be disposed of, at the outset.
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.
1094 of 1992.
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 numberices issued to them by the Speaker.
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 companytend that dismissal of the writ petitions by the High Court on the ground of laches is insupportable, in the present companytext, 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 numberpower of review under Tenth Schedule, and that the order of review being a nullity, must be so declared.
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.
In reply, Shri F.S. Nariman for respondent Ravi Naik in Civil Appeal Nos.
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 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.
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.
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.
The rival companytentions may number be mentioned.
