Differing High Court judgments on petition filed by 3 Independent Himachal MLAs on resignations

Legal Correspondent

Shimla, May 8

A Division Bench of the HP High Court has given two separate judgments on a petition filed by three independent MLAs alleging therein that the Speaker is not accepting their resignations from the Legislative Assembly and sought intervention of the court in this regard.

Chief Justice MS Ramachandra Rao has dismissed the petition filed by them by observing therein that “the petitioners want this court to usurp the functions of the Speaker on the validity of their resignations. The court cannot impede the exercise of discretion of an authority acting under the statute by issuance of a writ of mandamus.”

While dismissing the petition the Chief Justice further observed that “Considering the high respect to be given the office of the Speaker and fact that he is the designated authority to decide on resignations of Members of Legislative Assembly under Art.190(3) (b) of the Constitution of India, and in the absence of any exceptional circumstances, I decline to grant relief sought by petitioners as it would then amount to ourselves exercising in the first instance the adjudicatory powers conferred on the Speaker by Article 190 of the Constitution of India, which is impermissible in law.”

The Chief Justice held that “in my opinion, no direction can be issued to the Speaker to take a decision on the resignation letters within a fixed time frame.”

However, Justice Jyotsna Rewal Dua has directed the Speaker of the Himachal Pradesh State Legislative Assembly to take decision upon the resignations tendered on March 22 by the petitioners from the Assembly within two weeks.

In her separate judgment, Justice Jyotsna Rewal Dua observed that “Being a constitutional authority does not mean that the said authority is beyond or above the Constitution. Duties of the constitutional authority are more onerous. The constitutional authority has to act and conduct in accordance with the Constitution for he has sworn an oath to bear true faith and allegiance to the Constitution of India. It is the Constitution which is supreme and not the constitutional authority. Continued state of indecision on petitioners’ resignations, in the given facts, where petitioners complain of violation of their indefeasible rights, warrants exercise of limited jurisdiction under Article 226 of the Constitution of India. Not taking any decision for long may also amount to a decision. In the given facts and circumstances of the case, the writ petition is maintainable at pre-decisional stage.”

The three independent MLAs Hoshiyar Singh Chambyal from Dehra , KL Thakur from Nalagarh and Ashish Sharma from Hamirpur had submitted their resignations from the membership of the Assembly to the Secretary of the Assembly on March 22.

The trio have filed a petition against not acceptance of their resignations and issuing show-cause notices to them by the Speaker. They have contended that they voluntarily submitted their resignations without any coercion and the Speaker should accept the resignation.

The petitioners alleged that the Assembly Speaker instead of accepting their resignations has issued show-cause notices to them.

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