D.N. Jeevaraju & ANR.
Vs D. Sudhakar & Ors. Etc.
J U D G M E N T
ALTAMAS KABIR, J.
1.
These
Special Leave Petition (C) Nos.33333-33335 of 2010 arise out of a final
judgment andorder dated 15th November, 2010, passed by the Karnataka High Court
at Bangalore inM.W.No.9995/10, M.W.No.10529/10, M.W.No.10698/10, W.P.No.32674/10,
W.P.No.32675/10, W.P.No.32676/10, W.P.No.32677/10 and W.P.No.32678/10, allowing
the writ petitioners' application, being Misc.W.No.9995 of 2010, praying for
leave to amend a portion of paragraph 9 of the Writ Petitions.
2.
The
Writ Petitioners, D. Sudhakar, Venkataramanappa, Gulihatti D. Shekar, Shivaraj
S.Thangadgi and P.M. Narendra Swamy, were all elected as independent Members in
the General Elections held to the 13th Karnataka Legislative Assembly. After
being elected, they supported the exercise undertaken by the Bhartiya Janata Party(hereinafter
referred to as "B.J.P.") led by Shri B.S. Yeddiyurappa, leader of the
B.J.P. Legislature Party, to form a Government in the State in May,2008. The
writ petitioners, who have been made the Respondent Nos.1 to 5 in these Special
Leave Petitions, apart from extending support, also joined the Government as
Ministers and it appears that they also attended meetings of the B.J.P. Legislature
Party.
3.
On
6th October, 2010, each of the independent Members informed the Governor that due
to corruption and nepotism in the functioning of the Government, they had
become disillusioned and were thus withdrawing their support to the Government headed
by B.S. Yeddiyurappa. The very next day, Shri D.N. Jeevaraju and Shri C.T.
Ravi, who were the Chief Whip and Member Secretary of the B.J.P.in Karnataka,
filed a petition before the Speaker for disqualification of the five independent
Members from the Assembly under paragraph 2(2) of the Tenth Schedule to the Constitution.
On 8thOctober, 2010, a show-cause notice was also issued by the Secretary of the
Karnataka Legislative Assembly to the Respondent Nos.1 to 5 herein, requiring them
to file objections in writing by5.00 p.m. on 10th October, 2010, as to why appropriate
orders should not be passed for their disqualification under paragraph 2(2) of
the Tenth Schedule to the Constitution. It was also mentioned that if the said
Respondents failed to be present or to file their objections on or before the
said date, the matter would be decided in accordance with law.
4.
It
is the case of the Respondent Nos.1 to 5that they had not been individually served
with copies of the said show-cause notice and that on 9thOctober, 2010, they
came to learn through the media about the issuance of the show-cause notice and
sought copies of the same along with all annexures. It is the further case of
the said Respondents that on 10th October, 2010, at 11.00 a.m. they were provided
with the copies of the show-cause notice and copies of the complaints and
documents filed by the Respondents. According to the said Respondents, they
filed interim replies dated 9th October, 2010,to the show-cause notice and
sought for time to file complete objections thereto. The matter was 5taken up
for hearing at 3.30 p.m. on 10th October,2010, and despite the prayer for time
filed by the Respondents, the Speaker of the Assembly passed orders on the same
day disqualifying the RespondentNos.1 to 5 under paragraph 2(2) of the Tenth Schedule
to the Constitution with immediate effect. The very next day, the vote of
confidence sought by the 8th Respondent in the Writ Petition, the Chief Minister
of the State, before the Karnataka Legislative Assembly, was to take place. The
Respondents, therefore, hurriedly filed Writ Petition Nos.32764-78 of 2010
challenging the order dated 10th October, 2010, in Disqualification Application
No.2/10 filed by D.N. Jeevaraju and C.T. Ravi, in order to obtain stay of the
order of the High Court and enable them to participate in the proceedings of
the House.
5.
In
view of the urgency of the matter, a request was made to the Chief Justice of Karnataka
to convene a Bench and sitting of the Court while the writ petitions were filed
in the Registry. Acceding to the request made, a Division Bench was convened with
the Chief Justice and the Hon'ble Judge. In such circumstances, certain unintended
errors appear to have been incorporated in the writ petitions filed by the Respondents
containing certain statements which were, in fact, part of another set of writ
petitions, which had been filed on behalf of eleven B.J.P. M.L.As., who had
also withdrawn their support to the Yedddiyurappa Government and had, therefore,
faced disqualification proceedings as well.
6.
It
is the further case of the Respondent Nos.1to 5 that in view of the hurry in
which the two sets of writ petitions were made ready, some of the facts which
were common to both the sets of writ petitions were lifted from one set of writ
petitions to the other and in the process certain unintended statements were included
in the writ petitions filed by the Respondent Nos.1 to 5 herein which were, in
fact, identical to the paragraphs included in the earlier set of writ petitions
filed by the other set of M.L.As. belonging to the B.J.P. who had also been
disqualified. In the process, in paragraph 9 of the writ petitions filed by the
Respondent Nos.1 to 5 herein, certain unintended statements had been included
which in the context of the entire writ petition was obviously a mistake. For
the sake of reference, paragraph 9 of Writ Petition (C) Nos.32674 to 32678 of
2010, is extracted here in below : "
7.
That
the alleged petition made by the Respondent No.1 & 3 herein, is clearly mala
fide and has been made with an oblique motive knowingly in violation of Rule
6(4) of Disqualification Rules, 1986, which required him to satisfy himself
that there are reasonable grounds for believing that a question has arisen as
to whether such member has become subject to disqualification under the Tenth
Schedule. No reasonable person would in the facts of this case could come to
the conclusion that the Petitioners had incurred any disqualification on the ground
of defection. Even prima facie defection means leaving the party and joining another.
Petitioner has not left the Bharathiya Janatha Party at all." 87. The
entire case of the Petitioners in these Special Leave Petitions is centered
around the said statements, which the High Court held, had been incorporated by
mistake on account of the circumstances in which the two sets of writ petitions
had been filed.
8.
In
view of the said error in the writ petitions filed by Respondent Nos.1 to 5 herein,
an Interlocutory Application, being I.A.No.9995 of2010, was filed by the writ
petitioners under Order VI Rule 17 of the Code of Civil Procedure read with Articles
226 and 227 of the Constitution of India, for amendment of paragraph 9 thereof.
In the light of the categorical statements made by the writ petitioners that
they had not used the symbol of B.J.P. for contesting the Assembly Elections
norhad they joined the B.J.P., but had only supported the formation of
government as independent M.L.As.,a prayer was made for leave to delete the
last sentence of paragraph 9, which reads as," petitioner has not left the
Bhartiya Janata Partyat all" and to substitute the same with the following
sentence, namely, "petitioners have not joined B.J.P. at all and the
evidence of the second Respondent to the contrary are perverse and are liable
to be set aside."
9.
As
indicated hereinbefore, the High Court by its impugned judgment and order dated
15th November,2010, after considering the case of the writ petitioners as a
whole, allowed the amendment upon holding that if such amendment was permitted,
neither the nature of the dispute, cause of action, nor the nature of relief
sought for in the writ petitions would change and that no prejudice or injustice
would be caused to the Respondents.
10.
The
said judgment and order of the High Court is the subject matter of challenge in
these Special Leave Petitions.
11.
Initially,
Mr. Mukul Rohtagi, learned Senior Advocate, appeared for the Petitioners
herein, and submitted that the statements made in paragraph 9of the writ
petitions, which were allowed to be amended by the High Court, were not on
account of a mere mistake but had intentionally been made and, in any event,
admission being the best proof of a fact, the said statements would have to be
taken as an admission, the benefit whereof could not be denied to the Petitioners
in the Special Leave Petitions.
12.
Mr.
Soli J. Sorabji, learned Senior Advocate, who, thereafter, appeared for the Petitioners
herein, continued in the same vein. In support of such contention, Mr. Sorabji
firstly relied on the decision of this Court in Nagindas Ramdas Vs. Dalpatram
Ichharam alias Brijram & Ors. [(1974) 1SCC 242], where the provisions of
Section 58 of the Evidence Act, 1872, fell for consideration and after considering
the earlier decisions of this Court on the subject, it was held that the principle
that emerges from an analysis of earlier cases is that if at the time of
passing of the decree there was some material before the Court, on the basis of
which, the Court could be prima facie satisfied about the existence of a
statutory ground of eviction, a presumption would have to be drawn that the
Court was so satisfied and the decree for eviction, even if passed on the basis
of a compromise, would be valid. Such material could take the shape either of evidence
recorded or produced in the case or it may partly or wholly be in the shape of
an express or implied admission made in the compromise agreement itself. This Court
went on to observe that the admissions, if true and clear, are by far the best
proof of the facts admitted. In other words, admissions and pleadings or
judicial admissions, admissible under Section 58 of the Evidence Act, made by
the parties or their agents at or before the hearing of the case, stand on a
higher footing than evidentiary admissions. Same is the view expressed by this Court
in Gautam Sarup Vs. Leela Jetly & Ors. [(2008(7) SCC 85], in which in similar
circumstances, while considering an application under Order VI Rule 17 of the
Code of Civil Procedure, this Court observed that an admission made in a
pleading is not to be treated in the same manner as an admission in a document.
An admission made by a party to the lis is admissible against him
propriovigore. Various other decisions on the same point were cited by Mr. Sorabji
in support of his submissions.
13.
Mr.
Sorabji urged that it is hardly believable that such vital statements went
unnoticed by the lawyers appearing for the writ petitioners, particularly in the
circumstances which indicate that having by their acts and conducts, joined the
B.J.P. for all practical purposes, it was only natural that a statement was made
in the writ petitions that they had not left the B.J.P. Mr.Sorabji submitted
that far from being a mistake, the statement had been deliberately made on
account of their conduct after the allegations were madethat the writ
petitioners had not only supported the B.J.P.-led Government, but had also participated
therein by taking oath as Ministers in the Government led by Shri B.S.
Yeddiyurappa as the leader of the B.J.P. Legislature Party. Mr.Sorabji laid special
stress on the wording of paragraph 9 of the reply filed by the writ petitioners
in which it was categorically stated that since Shri B.S. Yeddiyurappa had
forfeited the confidence of the Speaker to continue as the Chief Minister, in
the interest of the State, the people of Karnataka and the B.J.P., the concerned
writ petitioners had withdrawn their support from the Government headed by Shri
B.S. Yeddiyurappa as the Chief Minister.
14.
Mr.
Sorabji also emphasized the fact that in the application filed by the writ
petitioners under Order VI Rule 17 C.P.C., the writ petitioners had not
indicated in paragraph 4 thereof as to who had given the instructions to the
lawyers concerned to draft the writ petitions, nor had the names of the lawyers
been disclosed and in the absence of such relevant information, it could not be
presumed that the statements made in paragraph 9 of the writ petitions were unintentional
or had been made through oversight.
15.
Mr.
Sorabji ended on the note that the observation of the High Court that if the
amendment was allowed, no one, including the Petitioners herein, would be
prejudiced in any way, was also entirely erroneous, inasmuch as, if the prayer
for amendment had been disallowed, the Petitioners herein would have been
entitled to the benefit of the admission made by the writ petitioners, which would
have, in fact, cut away the very foundation of the writ petitioners' case.
16.
Replying
to the case made out on behalf of the writ petitioners herein, Mr. P.P. Rao, learned
Senior Advocate, contended that admittedly there were two sets of cases relating
to the disqualification of 11 B.J.P. M.L.As. and the disqualification of 5 independent
M.L.As., where the facts are similar, although, the grounds of disqualification
in the two cases are entirely different. In the first case, the ground of
attack was that the said 11 M.L.As. had "voluntarily given up their membership
of B.J.P.", and had thereby incurred the disqualification under paragraph2(1)(a)
of the Tenth Schedule to the Constitution. In the second case, the ground is that
the independent M.L.As. having joined the B.J.P. by extending support to the B.J.P.
Government soon after their election, had incurred disqualification under
paragraph 2(2) of the Tenth Schedule. The two sets of M.L.As. had addressed
similar letters to the Governor on 6th October, 2010, intimating their intention
to withdraw the support to the Government led by Chief Minister, Shri B.S. Yeddiyurappa,
whose corruption, nepotism and favoritism had become unbearable. On the said basis,
on the very same day the Governor requested the Chief Minister to prove his
majority on the Floor of the House on or before 12th October, 2010.Mr. Rao
submitted that apprehending that on account of the withdrawal of the support of
16 M.L.As., he would not be able to win the trust vote, the Chief Minister,
with the help of the Speaker, chose to manipulate the trust vote by getting all
the 16M.L.As., who had withdrawn their support to him, disqualified before the Assembly
met on 11thOctober, 2010, at 10.00 a.m. for the trust vote.
17.
In
pursuance of the said design, the Chief Minister himself filed a petition before
the Speaker on 6th October, 2010, seeking disqualification of the 11 B.J.P.
M.L.As. on the ground that they had written to the Governor withdrawing support
to the Government, without the decision of the party and such action attracted disqualification
under the Tenth Schedule to the Constitution. A similar application was filed
on6th October, 2010, in which the petitioners herein Shri D.N. Jeevaraju, who
was the Chief Whip of the B.J.P. and C.T. Ravi, M.L.A. and Joint Secretary of the
B.J.P. State unit, filed a separate petition, being Disqualification Petition
No.2 of 2010, for disqualification of the Respondent Nos.1 to 5herein, alleging
that by declaring their support to the Government soon after the elections,
they had become Members of the B.J.P. and should, therefore, be disqualified under
the Tenth Schedule to the Constitution.
18.
On
7th October, 2010, the Speaker issued show-cause notices to the B.J.P. M.L.As.
on the basis of the petition submitted by the Chief Minister. Thereafter, on
8th October, 2010, the Speaker issued show-cause notices to the five M.L.As. being
Respondent Nos. 1 to 5 herein, on the basis of the petition submitted by Shri
D.N. Jeevaraju and Shri C.T. Ravi. Time to file objections to the petitions filed
was given till 5.00 p.m. on or before 10th October, 2010. It is the case of the
Respondent Nos.1 to 5 that they had not been personally served with copies of
the notices which were pasted on the doors of their M.L.A. quarters when all of
them were out of station, as the Assembly was not in Session, but on their
coming to know from the media about the notice, they approached the Speaker
through their counsel and obtained copies of the notice and hurriedly prepared
interim replies which were submitted on10th October, 2010, seeking time to file
detailed replies. Thereafter, on the same day, the formality of going through a
hearing was performed by the Speaker and in the night of 10th October, 2010,
itself, the Speaker passed separate orders disqualifying the 11 B.J.P. M.L.As. and
the 5independent candidates from their membership of the Karnataka Legislative
Assembly.
19.
Mr.
Rao submitted that it is in such circumstances that writ petitions were hurriedly
prepared with the object of moving the High Court to obtain orders of stay
before 10.00 a.m. on 11thOctober, 2010, before the trust vote could be taken in
the Assembly. It is in such circumstances that certain paragraphs were lifted from
the writ petitions filed on behalf of the 11 B.J.P. M.L.As., which resulted in the
unintentional mistakes occurring in paragraph 9 of the writ petition.
20.
Mr.
Rao submitted that there could be little doubt that the statements made in
paragraph 9 were entirely unintended, since it struck at the very root of the
case of the writ petitioners and an attempt to submit otherwise was entirely
absurd. Mr. Rao submitted that the order of the High Court having been passed
in the totality of the incidents which occurred between 6th October and 10th
October,2010, no interference was called for with the same.
21.
From
the submissions made on behalf of the respective parties, it is obvious that in
these Special Leave Petitions we are only required to consider the correctness
of the common judgment and order dated 15th November, 2010, passed by the High Court
in the Writ Petitions referred to in paragraph 1 of this judgment, allowing the
applications filed by the writ petitioners/Respondent Nos.1 to 5 herein for
leave to amend paragraph 9 thereof. Although, it has been strenuously urged on behalf
of Special Leave Petitioners that the statements made in paragraph 9of the writ
petitions to the effect that the petitioners had not left the Bhartiya Janata
Partyat all, was not a mistake but was intentionally made, and that the High
Court had erroneously held otherwise, is not borne out by the circumstances indicated
in the writ petitions, if considered in their totality. There is no doubting
the fact that the writ petitioners had all throughout indicated that they had been
elected as independent candidates and had neither contested the elections on
the B.J.P. symbol nor had they, at any point of time, joined the B.J.P. On the
other hand, even in their interim reply dated 9th October, 2010,submitted to
the Speaker in respect of the show-cause notices issued to them, the Respondent
Nos.1to 5 have in no uncertain terms in paragraph 8stated that they were Independents
who had not joined any political party, least of all the B.J.P. and had been
supporting the Yeddiyurappa Government from outside till 6.10.2010. In fact,
except for an inference being drawn from the statement that the writ
petitioners had not left the B.J.P., that they had earlier joined the party,
there is no factual basis for the finding that the writ petitioners had joined
the B.J.P. Even in the letter addressed by them to the Governor, they had very clearly
indicated that they were withdrawing support to the B.J.P. Government led by
Shri B.S. Yeddiyurappa on account of the corruption, nepotism and favouritism,
which was prevalent on a wide scale in the State. At no point of time has any
positive evidence been adduced by the Special Leave Petitioners to establish that
the Writ Petitioners/Respondent Nos.1 to 5 herein had at all joined the B.J.P.
22.
In
the circumstances indicated hereinabove, the statements made in paragraph 9 of the
Writ Petitions filed by the Respondent Nos.1 to 5 here in that they had not left
the B.J.P., was an inadvertent error. On the other hand, there is a good deal
of substance in the stand taken by the Respondent Nos.1 to 5 that on account of
the preparation of the two sets of Writ Petitions having similar facts but involving
two sets of M.L.As, some of the paragraphs which were not intended to be
included in the Writ Petitions filed by the Respondent Nos.1 to 5 herein were inadvertently
included, resulting in the statement in paragraph 9 of the Writ Petitions that the
Respondent Nos.1 to 5 herein had not left the B.J.P. It is obvious that such a
statement was intended to be made and was made in the Writ Petitions filed by
the 11 B.J.P. M.L.As who had been disqualified on the ground that they had left
the B.J.P. and had joined another party there by attracting the consequences of
paragraph 2(2) of the Tenth Schedule to the Constitution.
23.
In
our view, the High Court has correctly held that the mistake was unintentional and
that no where, except in one stray sentence in paragraph9 of the writ
petitions, had the Respondent Nos.1to 5 stated that they had left the B.J.P.
and that the said sentence could not be considered as a categorical admission
if looked at from the context of the proceedings itself being under paragraph2(2)
to the Tenth Schedule. The Tenth Schedule provides that an elected member of a
House who has been elected as such, otherwise than as a candidate set up by any
political party, would be disqualified from being a Member of the House, if he
joined any political party after such election.
24.
We
are not, therefore, inclined to accept the submissions made on behalf of the Special
Leave Petitioners and all the Special Leave Petitions are, accordingly,
dismissed without any order as to costs.
................................................J.
(ALTAMAS KABIR)
................................................J.
(CYRIAC JOSEPH)
New
Delhi
Dated:16.12.2010.
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