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The speaker of West Bengal Legislative Assembly has challenged the order of the Calcutta High Court directing him to decide on the issue pertaining to disqualification of Mukul Roy as an MLA as it is co-related with him being the Chairman of the Committee of Public Accounts in a PIL filed by Ambika Roy, a BJP MLA.
The judgment of the high court has been challenged on the ground that the writ petition in which the judgment was passed could not have been treated as a PIL as it did not satisfy the test prescribed under Rule 56 of the Rule of High Court which state that
“Public, Interest Litigation' shall include a litigation the subject matter of which is a legal wrong or a legal injury caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, and for redressal of which any member of the public is not having any personal interest in the subject matter presents an application for an appropriate direction, order or writ in the High Court under article 226.”
Facts of the case:
Mukul Roy, contested election as a BJP candidate from Krishnanagar and emerged victorious in the assembly elections held at West Bengal this year. According to writ petition Mukul Roy defected from BJP to AITC on 11th June. The leader of opposition accordingly submitted a petition on 17th June for disqualification of Mukul Roy under Rule 6 of the Member of West Bengal Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 read with the the constitution.
According to the petition on 14th June the opposition chief whip wrote a letter to the Speaker nominating one Ashoke Lahiri as the chairman of Public Accounts Commission. The secretary of the assembly wrote a reply to this letter on 22nd June stating that the according to Rules of procedure of conduct of business in West Bengal chairman of a committee can be appointed by the speaker from among the members of the committee.
The petition states that 20 nominations were received in respect of election to Committee on Public Accounts including that of Mukul Roy. Since the PAC consists only of 20 members, all of them were appointed unopposed by the speaker. According to the petition, the nomination for PAC does not require the member to state their party affiliation.
The Petition states that Ambika Roy(the writ petitioner) objected to the election of Mukul Roy since he had defected and in this regard wrote a letter to the speaker on 24th June. The Secretary of the Assembly rejected the objection raised in light of Rule 302 of the Rules of Procedure and Conduct of Business in West Bengal Legislative Assembly.
On 9th July, the Speaker announced the name of Mukul Roy as the Chairman of PAC for the year 2021-22 in the floor of the House. Upon this announcement it is alleged that the members of the BJP staged a walk out.
A writ of quo warranto as a Public Interest Litigation (PIL) was filed by Ambika Roy before the Calcutta High Court being aggrieved by the appointment of Mukul Roy as the Chairman of PAC. On 28th September, the High court held that the PIL was maintainable and the issue pertaining to disqualification of Mukul Roy as the Member of the Assembly is co-related with him being the Chairman of the Committee of Public Accounts. Since, the petition for disqualification is pending before the Speaker for more than three months. Therefore before proceeding with the matter the Speaker was directed to place before the Hon’ble Court the order passed in the petition filed for disqualification of Mukul Roy as member of the Assembly. The matter has now been adjourned to 7th October and in case of failure, the Court held, that it will decide further course of action to be taken in the matter
The speaker of the assembly has challenged the order of the court on the ground that and hence cannot be considered a “Public Interest Litigation.”
Grounds for challenge:
The order of the Calcutta High Court has been challenged on the grounds that the court erred in law by not appreciating Rule 56 which lays down a twin test for a writ petition to qualify as a PIL. The test being (a) a legal wrong or injury should have been caused to a person or a class of persons ; (b) Such person or class of persons are unable to approach the court.
The petition states that the High Court developed a pre-conditioned mind set as it held that the present issue could very well be sorted if the Speaker had decided the petition for disqualification pending before him. The petition further alleges that the High Court was wrong in equating a ‘convention’ as a ‘constitutional convention’.
According to the petition the High Court failed to appreciate that the declaration of the name of the Chairman of the Committee was not a mere declaration but a proceeding in the assembly since the opposition walked out of the House and as such the petition could not be assailed before the court.
The petition states that the High Court failed to appreciate that the power or privilege by the legislature are for determination of the legislative authority and not by the courts. The petition states that the court failed to appreciate the the appointment of a chairman of a committee of the assembly does not constitute a judicial or a quasi judicial decision and hence it could not have interfered.
The petition further states that court should not have entertained the writ petition as no fundamental rights were contravened. The petition states that the action of the speaker appointing Mukul Roy as the Chairman of the committee is neither substantively or grossly illegal. It is further stated that the petitioner in the disqualification petition had not approached the court and the court did not call for for the records of the disqualification petition. It further states that the court failed to appreciate that the office of the Chairman of Public Accounts Committee of Legislature cannot be termed as an office of public nature and hence a writ cannot be issued.
The petition further states that High Court failed to appreciate that the petition for disqualification was filed on 17th Due and the same was placed before the Speaker on 21st June and since there were lacunas in the petition, the Speaker fixed 16th July for hearing on the point of admissibility of the petition and in the hearing the Hon’ble Speaker observed that an opportunity should be given to the petitioner to regularize the petition complying with all the provision of the relevant rules and fixed 30th July for further hearing of the matter. Thereafter, on 30th July the Advocate for the petitioner submitted a supplementary verification petition and theSpeaker admitted the petition on that day, i.e. on 30th July after the defects were cured and therefore the three months’ period had not actually expired on the date of the judgment.
According to the order of Calcutta High Court in this matter on 7th October, the Advocate General has submitted to the bench that the Speaker has not passed any orders on the disqualification of Mukul Roy and has apprised the court about the filing of the present SLP. The Calcutta High Court has accordingly adjourned the matter to 15th of November or as soon as the bench is in a position to take the matter up.
According to the website of the Supreme Court, the petition which was filed on 5th October.
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