Andhra Pradesh High Court - Amravati

Indukuri Raghuraju, vs The Andhra Pradesh State Legislative ... on 6 November, 2024

APHC010256262024
                    IN THE HIGH COURT OF ANDHRA
                                PRADESH
                                                          [3507]
                             AT AMARAVATI
                      (Special Original Jurisdiction)
         WEDNESDAY ,THE SIXTH DAY OF NOVEMBER
            TWO THOUSAND AND TWENTY FOUR

                      PRESENT
        THE HONOURABLE SRI JUSTICE G.NARENDAR
                        AND
        THE HONOURABLE SRI JUSTICE T.C.D.SEKHAR

                   WRIT PETITION NO: 13089/2024

Between:
Indukuri Raghuraju,                                ...PETITIONER
                              AND
The Andhra Pradesh State Legislative            ...RESPONDENT(S)
Secretariat Council and Others

Counsel for the Petitioner:
  1. K SARVA BHOUMA RAO

Counsel for the Respondent(S):
  1. D S SIVADARSHAN
  2. T VISHNU TEJA
  3. VIVEK CHANDRA SEKHAR S
  4. .
The Court made the following:

ORDER:

- (Per Hon'ble Sri Justice G. Narendar)

We have heard Sri Jandhyala Ravi Shankar, learned

Senior Counsel, on behalf of the petitioner and the learned

Advocate General.

2. The petitioner is before this Court aggrieved by the order

dated 03.06.2024 in Disqualification Petition No.3 of 2024 passed

by the Hon'ble Chairman, Andhra Pradesh Legislative Council at

Velagapudi (in short, referred to as "the Tribunal"). The Tribunal

has exercised the powers under Article 191 and X Schedule of

the Constitution of India and was pleased to accept the

complaint/petition filed by the Chief Whip of the then ruling

legislative party i.e., Yuvajana Sramika Rythu Congress Party

preferred under Rule 6 of the Members of the Andhra Pradesh

Legislative Council (Disqualification on Ground of Defection)

Rules, and was further pleased to hold that the petitioner herein

stands disqualified from continuing as Member of the A.P.

Legislative Council and further, declared that the seat has fallen

vacant.

3. Learned Senior Counsel has taken this Court through the

complaint. We have perused the complaint.

4. The complaint/petition is moved by the Chief Whip of the

then ruling legislative party, are under para 2 of X Schedule read

with Article 191 (2) of the Constitution of India read with Rule 6 of

the Members of the Andhra Pradesh Legislative Council

(Disqualification on Ground of Defection) Rules. The entire

complaint consists of about 16 paras numbered as 1, 2, 3 and 3.1

to 3.14 and prayers therein were that to declare that the petitioner

has voluntarily given up his membership of the political

party/legislative party and thereby, committed defection, as is

prohibited under Article 191(2) and X Schedule of the Constitution

of India, and to pass consequential orders.

5. Having perused the complaint in detail, the specific

allegations are traceable in para 3.9.a, which read as under:-

"a. It is pertinent to note that the Respondent herein extended his support to the Opposition Party by joining his wife i.e. Smt. Sudha Rani along with 15 Sarpanchs, 15 MPTCs and 5 Conveners of YSRCP party in the Opposition Party/Telugu Desam Party on 04.03.2024 in the Presence of TDP General Secretary Shri. Nara Lokesh, S/o. Shri Nara Chandrababu Naidu and the TDP incharge of S.Kota Constituency Smt. Kolla Lalitha Kumari. They visited the office of the opposition party at Amaravathi and on the said date they have joined the Opposition political party by accepting the "khanduva" depicting the color of the Opposition Party Flag bearing the symbol of opposition party. Immediately after joining the opposition party they have made several derogatory comments on the YSRCP leaders including the Hon'ble Chief Minister and the YSRCP political party. The said statements and allegations were published in print and electronic media. The joining and the derogatory comments made by them are uploaded in the official YouTube Channel of the Opposition Party and the same are widely circulated in all social media platforms. It is humbly submitted that

through the above act, the Respondent had publicly and evidently offered his support to the opposition party despite still being a member of Legislative Party and thereby got defected and violated the relevant provisions of the Constitution of India and the relevant rules. The Hyperlink of the said Video is extracted hereunder:

https://www.youtube.com/watch?v=CsRVVoolJsM"

At the end of the para, the Youtube link is stated therein. In sub-

para (b), it is alleged that the defectious act, as detailed in sub-

para (a), has been carried out in Sakshi Newspaper and Leader

Newspaper and are also available on the Youtube links stated

therein.

6. The second charge is in sub-para (c). The allegation in a

nutshell, as recorded in sub-para(c) is that the petitioner attended

Annual School Day Celebration of Sri Gowri Vidya Nikethan and

that the T.D.P. in charge of Srungavarapukota Constituency was

also present i.e., Smt Kolla Lalitha Kumari and who, it is alleged,

had expressed displeasure towards the Y.S.R.C.P. party and its

leaders.

7. A bare reading of the pleadings does not disclose even an

iota of evidence. The allegation in sub-para (a) is that he got his

wife, 15 Sarpanchs, 15 M.P.T.Cs and 5 Conveners of YSRCP

party to join the opposition party and hence, it is to be deemed as

an act of defection or an act of voluntarily giving up the

membership.

8. The other allegation that the media clippings both in the

electronic and print media have not been denied.

9. The third allegation is that of attending the annual school

day celebrations. The third allegation does not even allege that

the petitioner uttered any words of protest or acted in a manner

which was detrimental to the interests of the party. Expressing

counter opinions, in our opinion, or criticizing policies would not

tantamount to an act of defection.

10. The primary allegation is that the wife of the petitioner and

other supporters joined the opposition party on 04.03.2024, which

fact is not denied, but what is pertinent to be noted is that there is

no allegation that the petitioner was present during the function or

participated in the function or has openly canvassed or

proclaimed that the act of his wife and their supporters joining the

opposition party was at his behest.

11. Be that as it may, we note that on the date of hearing, the

petitioner has been admitted to Narayana Medciti Hospital,

Visakhapatnam to undergo a procedure and the said fact has

been brought to the notice of the Chairman of the Tribunal with a

request for adjournment and the same is addressed in the same

manner as under:

"5.1.10. In the instant case, even if the Respondent not able to attend the oral hearing personally, he could have placed his submission through a counsel which he has avoided and the certificate, submitted as an attachment to the affidavit/petition filed by the Respondent, issued by "Narayana Medciti hospital" to the effect that the Respondent was diagnosed with "biliary colic and symptomatic cholelithiasis" cannot be considered as the said certificate has not been issued by the treating Doctor, instead it was issued by a General Manager - operations, an Administrative head. Further, the Respondent requested to grant one more week time to appear before this Authority. While taking into consideration of the above circumstances, the Respondent is not entitled for any further time and thereby the request for further time was rejected."

12. The reasoning that the records are signed by the

administrative head and not by the treating Doctor is bizarre. It is

not even the case of the complainant/petitioner that the

documents are fabricated or that the petitioner never underwent

any treatment. In the absence of such material, it would not be

appropriate for the Chairman of the Tribunal to record a finding

debunking or rejecting the claim of the petitioner. That apart, we

find that the order, though voluminous, does not discuss or detail

a single event or incident which can be construed as an act that

falls under Article 191 of the Constitution of India. Mere

references to the material placed and to the first principles

evolved by the Apex Court would not suffice or give legs for an

order to stand on. It was imperative for the Chairman to discuss

the material evidence placed before the Tribunal and appreciate

the same and thereafter, arrive at a conclusion as to whether the

same constitute material of evidentiary value which would suffice

to demonstrate a fact.

13. The points that arise for consideration in the above

circumstances are:

(1) Whether the order falls foul of the principles of natural

justice?

(2) Whether the order is legally sustainable?

Consideration and reasoning:

14. On perusal, we find that the order is bereft of any details

which would demonstrate that the petitioner was instrumental in

coercing or convincing his wife and other supporters to abandon

the then ruling party and join hands with the opposition party.

The mere absence of a denial or absence of a statement

condemning the actions of his wife, in our prima facie opinion,

would not constitute a ground to hold the same as an act of

defection. That apart, in para 5.2.8, the Chairman has erred in

deducing a fact on the strength of his personal knowledge. That

apart, we find the Tribunal has placed reliance primarily on media

reports, both in the electronic and print media but a perusal of the

order does not reveal as to whether any of authors of the reports

have been examined much less whether any material has been

examined by the Tribunal to authenticate the veracity of the

reports. Mere surmises and conjectures cannot form the basis of

an order.

15. The law in this regard is no more res integra. The Hon'ble

Apex Court has vividly set out circumstances which would warrant

this Court to interfere with the order of the Hon'ble Speaker and

one of the primary grounds is lack of opportunity or the order

being not in conformity with the principles of natural justice and

where the Hon'ble Speaker was not absolutely impartial. The

facts narrated above are a clear pointer towards non-compliance

with the mandate of the Hon'ble Apex Court in the following

judgments:

(a) In Balchandra L. Jarkiholi v. B.S. Yeddyurappa1, the

Hon'ble Apex Court in para.156 observed as follows:

"156. Incidentally, in Para 5 of the Tenth Schedule, which was introduced into the Constitution by the Fifty-second Amendment Act, 1985, to deal with the immorality of defection and floor-crossing during the tenure of a legislator, it has been indicated that notwithstanding anything contained in the said Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of the State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under the Schedule if he by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election, and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party. The object behind the said Para is to ensure that the Speaker, while holding office, acts absolutely impartially, without any leaning towards any party, including the party from which he was elected to the House."

(b) In Keisham Meghachandra Singh v. Speaker,

Manipur Legislative Assembly2, the Hon'ble Apex Court in

para.22 observed as follows:

"22. The Court then adverted to the scope of judicial review being limited as decided in Kihoto Hollohan [Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651] as follows :

(Rajendra Singh Rana case [Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270] , SCC pp. 299-300, paras 39-41)

"39. On the side of the 37 MLAs, the scope of judicial review being limited was repeatedly stressed to contend

(2011) 7 SCC 1

(2021) 16 SCC 503

that the majority of the High Court had exceeded its jurisdiction. Dealing with the ambit of judicial review of an order of the Speaker under the Tenth Schedule, it was held in Kihoto Hollohan [Kihoto Hollohan v.

Zachillhu, 1992 Supp (2) SCC 651] : (SCC p. 706, paras 95-97)

„95. In the present case, the power to decide disputed disqualification under Para 6(1) is pre- eminently of a judicial complexion.

96. The fiction in Para 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words "proceedings in Parliament" or "proceedings in the legislature of a State" in Para 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures.

97. That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of Members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially Designated Authority. The decision under Para 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Para 6(1) of the Tenth Schedule.‟

After referring to the relevant aspects, it was held : (SCC p. 707, para 100)

„100. By these well-known and accepted tests of what constitute a tribunal, the Speaker or the Chairman, acting under Para 6(1) of the Tenth Schedule is a tribunal.‟

It was concluded : (SCC p. 710, para 109)

„109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Para 6, the scope of judicial review under Articles 136 and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Para 6 would be confined to jurisdictional errors only viz. infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.‟

The position was reiterated by the Constitution Bench in Raja Ram Pal v. Speaker, Lok Sabha [Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184] . We are of the view that contours of interference have been well drawn by Kihoto Hollohan [Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651] and what is involved here is only its application.

40. Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by Para 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of Para 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf. He has entered no finding whether a split in the original political party was prima facie proved or not. This action of his, is apparently based on his understanding of the ratio of the decision in Ravi S. Naik case [Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641] . He has misunderstood the ratio therein. Now that we have approved the reasoning and the approach in Jagjit Singh case [Jagjit Singh v. State of Haryana, (2006) 11 SCC 1] and the ratio therein is clear, it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with. We have, therefore, no hesitation in agreeing with the majority of the High Court in quashing the decisions of the Speaker.

41. In view of our conclusions as above, nothing turns on the arguments urged on what were described as significant facts and on the alleged belatedness of the amendment to the writ petition. It is indisputable that in the order that was

originally subjected to challenge in the writ petition, the Speaker specifically refrained from deciding the petition seeking disqualification of the 13 MLAs. On our reasoning as above, clearly, there was an error which attracted the jurisdiction of the High Court in exercise of its power of judicial review."

(emphasis supplied)"

(c) In Kshetrimayum Biren Singh v. Speaker, Manipur

Legislative Assembly3, the Hon'ble Apex Court in paras.14 to 17

observed as follows:

14. With the assistance of the learned counsel, we have gone through the pleadings exchanged between the parties and the facts on record. It is quite clear that the petitions were directed to be taken up for hearing on 22-6-2020 but were preponed to 18-6-2020.

15. Without going into the question whether such preponement was to the knowledge of the parties, the fact of the matter is that the record does not indicate any urgency why the matters were preponed from 22-6-2020 to 18-6-2020. It is also a matter of record that none of the parties was represented before the Speaker. As submitted by the learned counsel who had appeared on behalf of the Speaker, which submission was noted by the High Court in its order dated 18-6-2020 [Paonam Brojen Singh v. Speaker, Manipur Legislative Assembly, 2020 SCC OnLine Mani 121] , the matter required leading of evidence.

16. The questions -- whether mere reporting in the newspapers could be taken as sufficient proof of "voluntarily giving up of the membership of a political party" and, whether the matters require leading of evidence, had to be gone into by the Speaker.

In our view, the essential features of the matter demanded leading of evidence as well as giving adequate opportunity to the parties to present their viewpoint.

17. In the circumstances, we allow these appeals, set aside the orders passed by the Speaker and the High Court and restore Disqualification Cases Nos. 2, 7 and 9 of 2019 to the file of the

(2022) 2 SCC 759

Speaker to be decided afresh purely on merits without being influenced by any of the observations in the earlier orders of the Speaker and the High Court. Since the order passed by the Speaker has now been set aside, till the matter is disposed of by the Speaker, the appellant shall continue to represent the electorate in the House concerned of the legislature."

16. Learned Advocate General, in all fairness, would submit

that the order is indeed in the teeth of the principles of natural

justice and on that short ground, the order falls foul of the

mandate of law. In that view of the matter and in the light of the

law laid down by the Hon'ble Apex Court in Kshetrimayum Biren

Singh3, it would be necessary and appropriate to intervene with

the impugned order.

17. Accordingly, the Writ Petition is allowed and the order

dated 03.06.2024 passed in Disqualification Petition No.3 of 2024

by the Tribunal is hereby set aside, as being opposed to law and

the principles of natural justice. In that view, we deem it

appropriate to remit the matter back to the Tribunal for