WP(C) 6193/2015. Gauhati High Court
| Case Number | WP(C) 6193/2015 |
| Judgement Date | January 12, 2016 |
| Court | Gauhati High Court |
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Writ Petition No.6193 of 2015
1) Shri Wanglam Sawin, MLA, S/o- Late Nawang
Sawin, Resident of Village- New Lainwang Pops
Khonsa, District- Tirap, Arunachal Pradesh.
2) Shri Gabriel Denwang Wangsu, MLA
58- Kanubari(ST) A/Constituency Longding
District- Camp: Kanubai, Arunachal Pradesh.
............ Petitioners
- Versus –
1) The Speaker, Arunachal Pradesh Legislative
Assembly, Arunachal Pradesh, Naharlagun,
Itanagar, Arunachal Pradesh, Pin-781111.
2) The Secretary, Legislative Assembly,
Arunachal Pradesh, Itanagar, Arunachal
Pradesh, Pin-781111.
3) The Election Commission of India,
The Chief Election Commissioner Nirvachan
Bhawan, New Delhi, Pin-110001.
........ Respondents
B E F O R E
HON’BLE MR. JUSTICE T. VAIPHEI, CHIEF JUSTICE (ACTING)
HON’BLE MR. JUSTICE M.R. PATHAK
For the petitioners: Mr. D.K. Mishra, Sr. Adv
Mr. P.K. Tiwari,
Mr. H.A. Sarkar,
Ms. S. JAhan, Advocates
For the respondents: Mr. M.N. Krishnamani, Sr Adv
Mr. R. Thomas,
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Mr. M.G. Singh,
Mr. D. Baruah, Standing Counsel,
Election Commission,
Mrs. M. Borah, Govt.Advocate,
Arunachal Pradesh.
Date of Hearing : 06-01-2016
Date of Judgment: 12-01-2016
JUDGMENT & ORDER (CAV)
[T. Vaiphei, CJ (Acting)]
Whether the Speaker of Arunachal Pradesh Legislative Assembly is correct in accepting the resignation letters of the petitioners as Members of the Legislative Assembly of Arunachal Pradesh, is the moot point in this writ petition.
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Before proceeding further, we may straightaway record the sequence of events leading to the filing of the writ petition as pleaded by the petitioners. Both the petitioners are MLAs of the current Arunachal Pradesh Legislative Assembly (“the Assembly” for short). While the petitioner No. 1 is representing 55, Khonsa (East) (ST) Assembly Constituency, the petitioner No. 2 is representing 58, Kanubari (ST) Assembly Constituency respectively; both of them were elected to the Assembly in the year 2014. In that election, the Indian National Congress (INC) won 47 seats out of the total seats of 60 in the Assembly. According to the petitioners, on 16-9-2015, the Chief Minister of Arunachal Pradesh (AP) hosted a get together party for 17 Members of Legislative Assembly (MLA) of AP including the petitioners. In the party, some of the MLAs present there told the gathering that whosoever in the party was in support of the Chief Minister would give a letter declaring support to the Chief Minister; a stereo-typed letters of support of the CM were stated to have been circulated among the MLAs indicating therein that these MLA would not support any person other than the CM and that any MLA supporting any other person would resign from the membership of the Assembly. The said letters were signed by the seventeen
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MLAs who were present at the party. The petitioners claim that they have not been given copies of the said letters purported to be signed by them till the date of filing the writ petition. According to the petitioners, the said letters did not indicate the date on which they were purported to be signed by them or the date on which their resignations were to be become effective. Due to political differences and out of political vendetta, these letters were apparently handed over to the Speaker behind the back of the petitioners; in fact, they were not at all aware that these letters were actually handed over to the Speaker. According to the petitioners, the said letter dated 1-10-2015 was hand delivered to the office of the Speaker on 5-10-2015 since 2nd, 3rd and 4th October, 2015 happened to be holidays. In the after noon of 5-10-2015, the Secretary, Arunachal Pradesh Legislative Assembly issued the notification by ante-dating it as “1-10-2015” stating that the Speaker had accepted the resignations of the petitioners and that the seats held by them, ipso facto, had fallen vacant; the notification, however, does not mention as to when the resignations were accepted by the Speaker. According to the petitioners, they had never signed any letter of resignation or handed over any resignation letter to the Speaker personally. The notification accepting the purported resignation letters of the petitioners by the Speaker was issued without holding any enquiry even though their resignation letters were not personally handed over to the Speaker by the petitioners; this is contrary to Rule 200(2) of the Rules of Procedure and Conduct of Business in the Arunachal Pradesh Legislative Assembly (“the Rules”), and is, therefore, liable to be quashed.
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The writ petition is opposed by the Speaker, who has filed his affidavit-in-opposition through the Secretary of the Assembly. According to the answering respondents, the writ petition was filed on 7-10-2015, while the resignations of the petitioners had already been accepted on 30-9-2015, which was notified on 1-10-2015. As the acceptance of the resignations was notified on 1-10-2015, the writ petition has become infructuous. It is submitted by the answering respondents that the acceptance of the resignations of the petitioners by the Speaker is final whereupon their seats became vacant on 30-9-2015 under Article 190(3) of the Constitution. The
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provision of Rule 200 of the Rules is not consistent with Article 190(3)(b) of the Constitution inasmuch as the latter provision does not make any distinction between a resignation received through the Chief Whip of the party or through post. What is of most utmost importance is that the resignation letter has to be signed and should be addressed to the Speaker. To the extent of this inconsistency, the Rule is void ab initio; the power of the Speaker given by the Constitution cannot be circumscribed by the subordinate legislation. In any case, the letters of resignations of the petitioners are admitted to have been given on 16-9-2015. The petitioners are educated persons and gave their resignation letters voluntarily, unconditionally and unambiguously, and the same were, according to the official records, accepted on 30-9-2015, which were notified in the official Gazette on 1-10-2015. It was only on 5-10-2015 i.e. six days after acceptance of their resignation letters that the petitioners claimed to withdraw the same by ante-dating their letters of resignations as “1-10-2015”; resignation letters already accepted cannot be withdrawn five days after their acceptance. This is made clear by Rule 200(4) of the Rules. If their resignations were not voluntary, they should have challenged the same at least on the next day itself i.e. on 17-9-2015 and they could not have kept silent till their resignations were accepted, and challenged the same 14 days later. It is not pleaded by the petitioners that criminal intimidation and coercion were exerted upon. It is, therefore, contended by the answering respondents that no case is made out by the petitioners for the interference of this Court and that the writ petition is liable to be dismissed at the very threshold with exemplary costs.
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The provision dealing with resignation of MLAs is found at Article 190(3) of the Constitution, which reads thus:
“ 190. Vacation of seats.—(1) * * *
(2) * * *
(3) If a member of a House of the Legislature of a State—
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(a) becomes subject to any of the disqualifications mentioned in clause (1)or clause (2)] of Article 191; or
(b) resigns his seat by writing under his hand addressed to the
Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be,
his seat shall thereupon become vacant:
Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such...
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