This is a celebrated case in the field of Anti-Defection law where it has
been discussed by the honorable Supreme Court about the validity of the
decision of a Speaker/Chairman of the House of Parliament or the State
legislature, as the case may be, where a stay of order has been issued by a
higher court. In this case dual petitions had been issued.
1994 AIR 1558: 994 SCR (1) 754: 1994 SCC Supl. (2): 641 JT 1994
1994 Scale (1) 487
Division bench which includes Agrawal, S.C. (J) and
Venkatachalliah, M.N. (CJ).
Date of Judgement:
Sanjay Bandekar and Ratnakar Chopdekar
Facts of The Case:
In 1989, the elections for the Goa Legislative Assembly had organised.
Subsequent to the elections, there has 20 members in Congress (1), 18
members in Maharashtrawadi Gomantak Party (MGP) and 2 dissociated members.
Congress (1) with the assistance of one dissociated member, had instituted
After a span of time, seven of the Congress members established the Goan
People’s Party (GPP). The GPP and MGP formed an alliance in the form of
Progressive Democratic Fund (PDF). On December 04, 1990, the MGP repudiate
to be in alliance with the GPP and a proclamation for convening the assembly
was circulated in order to strive mutual agreement of the members of the
assembly to such negation on December 10, 1990. Dr. Luis Proto Barbosa was
the Chief minister of Goa at that point of time. But afore the congregation
could took place, the Chief minister renounced from his footing.
On the same date, the chief of the Congress (1), Dr. Wilford D’Souza, was
determined to form a Congress Democratic Front (CDF) which comprised of 2
members of MGP namely, Sanjay Bandekar and Ratnakar Chopdekar (the
On December 10, 1990, one Ramakant Khalap, the leader of PDF, filed two
autonomous petitions before the Speaker of State Legislative Assembly. In
his petition, he acknowledged to rule out both Sanjay Bandekar and Ratnakar
Chopdekar under Article 191 (2) read with paragraph 2 of the tenth schedule
to the Constitution of India, from the legislative assembly.
The Speaker, on
December 13, 1990, by his ruling, ruled out both the appellants on the
ground of defection. Both the appellants, on the same date, presented a writ
petition to the High Court questioning the order of the speaker. On December
14, 1990, the High Court issued an interim order to stay the proceedings of
On May 14, 1993, the High Court abjure the petitions of Bandekar and
Chopdekar and an appeal was filed in the highest court of appeal in India.
Proceedings Before The Speaker Claims of the petitioner:
Claims of the appellants:
- That the respondent voluntarily resigned from MGP.
- That the respondent accompanied Dr. Barbosa, the former Chief
Minister of Goa, to the Governor and affirmed to the Governor that they did
not belong to MGP and
- That the respondent made aware to the public that they voluntarily
resigned from the office of MGP.
Decision of the Speaker:
- In reply to the first contention of the petitioner, the appellants
contended that the petitioner does not adduce any documentary evidences
to substantiate that the respondent voluntarily resigned from the
membership of MGP.
- In reply to second contention, the appellants contended that the
mere fact that they were assisting Mr. Barbosa does not made them dis-entitled
and they also denied the fact that they told the Governor that they did not
- They also denied the third contention of the petitioner that they
made anybody aware that they had voluntarily resigned from the office of MGP.
Decision of High Court:
- That the copies of numerous newspapers exhibited photographs of the
respondent with Congress (1) MLA, Dr. Barbosa and Dr. Wilfred D’Souza, who
took them to the Governor for a meeting in order to show that they had
support of 20 MLAs, were supplied by Dr. Jhalmi.
- That the above-mentioned fact is renowned in Goa and the Governor
also acknowledged that the respondent met him.
- That in the reply filed by the respondent they did not contradict
the fact that they met the Governor.
- In reply to the contention of the appellants that they were not
provided with a chance to adduce evidences before the speaker is
untruthful as they were available before the speaker and their advocate
did not make them to adduce evidences.
- That they shoulder Dr. Wilfred D’Souza in forming Congress (1)
government and went with him as a part of those 20 MLAs to meet governor.
Decision of The Apex Court
- The speaker only depended upon the newspaper photographs.
- The appellants did not contend that they had not the encountered the
- Nothing had interrupted the appellants from adducing any evidences
in their favor.
- The appellants or the advocate did not cross-question Jhalmi when he
made the statement afore the Speaker that he willingly refrained from the
Petition 2: Ravi S. Naik
- The High Court was appropriate in highlighting that appellants did
not refute the fact that they went to meet the Governor with other MLAs.
- The appellants were facing the Speaker still they did not volunteer
to adduce evidence.
- They also could have requested authorization from the Speaker to
- The order of disqualification was not passed in contravention of the
fundamentals of natural justice.
- The pronouncement by the High Court was upheld and the petitions
One Dr, Kashinath Jhalmi, affiliated with the MGP, filed a petition in front
of the speaker for debarment of Ravi S. Naik, the then Chief Minister of Goa,
on the basis of ground of defection.
The contentions of Jhalmi was that,
Ravi Naik was linked with the MGP and had affirmed himself as the Chief
Minister of Goa by deliberately leaving the membership of MGP. On February
15, 1991, the Speaker, through his order, debar Ravi Naik from being a
member of Goa Legislative Assembly. Ravi Naik filed an appeal before the
High Court abolishing the order of disqualification of speaker. However, his
appeal was invalidated.
Proceedings Before The Speaker Claims of Ravi Naik:
Decision of the speaker:
The two issues propounded by the speaker are:
- There was disunion in the original party in the meeting held at Ponda, Goa, on 24th December, 1990. There it was decided that, a distinct
group be constituted under his leadership and therefore, a resolution has
been ratified to that effect.
- Eight of the members of the original party has become part of this
split party (including Dharma Chodankar, Bandekar and Chopdekar) and catered
their signatures on the declaration effected. The facsimile of the
resolution has also been surrendered as an evidence.
- The order of the speaker disqualifying Chopdekar and Bandekar was
erroneous as there has been stay to the proceedings by the High Court.
Answer to (1):
- Whether there is actually a disunion of the original MGP?
- Whether the disassociated party constitute 1/3rd of the MLAs
integrated to the original party?
If there is any split between the party and a new party has
been incorporated, the head of that party has to familiarize the speaker of
the split but no such particulars has been furnished and also each group
members have to provide their certificates to that effect.
There has been a communication on the behalf of one Dharma Chodankar that
his signatures are acquired against his will and he is still an ally of the
In order to substantiate the split, the head of the spilt party can adduce
the notice of the meeting called in Ponda, signatures of the members
attended that meeting and the minutes of the meeting. Such evidences were
not adduced therefore, it cannot be said that the split actually happened.
He can also bring those six members physically before the speaker or provide
their affidavits on their behalf but nothing had been done to substantiate
Answer to (2):
The split party does not constitute 1/3rd of the MLAs of the
original party as two members namely, Bandekar and Chopdekar, has already
been disqualified from the assembly and Dharma Chopdekar has beforehand
stated that he is associated with the original group only.
On the answer to the contention of the counsel appearing for Ravi Naik that
disqualification of Chopdekar and Bandekar was erroneous as there was
beforehand the stay of suit, it has been stated by the Speaker that the
order of stay came after he has given his decision and the Parliament has
recently concluded that Speaker’s order cannot be inspected by court and his
decision is binding.
Proceedings Before The High Court
Claims of Ravi Naik:
Decision of High Court:
- The Speaker was inappropriate in disqualifying Chopdekar and
Bandekar even after the High Court has provided its order of stay.
- The letters produced by Dharma Chodankar were not revealed to Naik
in order to build his evidence in support.
- Answer to: The speaker was unquestionable in holding the
disqualification, as the Apex Court has not propounded any decision on the
duration when the order was declared by the Speaker. The Apex Court’s
decision of judicial review on the decision of Speaker came subsequently in
- Answer to: When for the initial time the legislative assembly met on
13th February, 1991, Dharma Chodankar settled down according to arrangement
provided to the original party and was not accorded a seat in the group of
Ravi Naik. Therefore, it is not possible on the behalf of Ravi Naik that he
does not attentive about the sitting of Dharma Chodankar with the original
party. Ravi Naik was familiar of this incident much afore the hearing took
place and therefore, non-indulgence of letters also does not incorporate as
Decision of The Apex Court
The paragraph 3 is an exception to paragraph 2 of the tenth
schedule. It states that, if any member incurs disqualification under
paragraph 2 and that member states that there is a split in the party, then
he cannot incur any disqualification. The burden to prove the requirement of
paragraph 3 is on the person who claims that there is any division in the
party. In the present case, Ravi Naik had to substantiate these
Whether the first requirement is fulfilled by Ravi Naik?
According to this court, he satisfied the first requirement by asserting
that there is a split. In the present case, the eight MLAs associated to the
MGP confirmed that they had constituted a dissociated group of which Ravi
Naik is the head. The original declaration bearing the signatures of the
eight MLAs was produced by the advocate for Naik during the course of the
hearing before the Speaker on February 13, 1991. Therefore, the fact that a
group was constituted is established by the said declaration.
Whether the second requirement is fulfilled by Ravi Naik?
According to this court, in order to fulfill the second requirement, the
appellant has to establish that their group constitutes one-third of the
MLAs of the original party. MGP constitutes 18 members. Therefore, there
should be at-least six members available in their group. The Speaker had
already removed Bandekar and Chopdekar and Dharma Chodankar had also
revealed about his faith in the original party.
Whether the Speaker was correct in disqualifying Chopdekar and Bandekar?
The High Court provided a stay order to the order of the Speaker on
14th December, 1990. The effect of this order shall be that, both the
Chopdekar and Dandekar were not prohibited and they were the part of that
meeting where a split was occurred.
The Speaker disqualified both the appellants on the ground that the stay
order came after he had disqualified both Chopdekar and Dandekar and his
decision cannot be subjected to court proceedings. The jurisdiction of the
higher courts challenging the decision of the Speaker has been dealt in the
case of Kihoto Hollohan, according to which the decision of a Speaker shall
be influenced by the judicial review.
The Speaker shall be constrained by the stay order of the High Court
because of the twin reasons:
- If an order of stay has been placed by a superior court on the
inferior court, then the inferior court has to be obliged by such order.
In case of any disobedience, the proceedings shall be void. Here, the
Speaker’ action will be unlawful as even after the stay order he
disqualified both Chopdekar and Dandekar.
- An interim order which was provided by the High Court is
supplementary to annulling the order of the Speaker.
Therefore, both the Chopdekar and Dandekar must be added to tally of
one-third members and if we include both of them then the number comes out
to be seven, even if we exclude Dharma Chodankar. Therefore, it satisfies
the second condition also.
The court annulled the order of the Speaker and the High Court and the
appeal was admitted.
- Bare Act, The Constitution of India, Universal Law Publishing,
- Article 191(2) read with paragraph 2 of the tenth schedule, The
Constitution of India.
- Tenth Schedule, The Constitution of India.
- Tenth Schedule, The Constitution of India.
- The Constitution of India.