Disqualification Petition No. 2 of 2018

click here for IIIF manifest

[Price : ` ` ` ` `. 15-00.

R.N.I. No.TELMUL/2016/73158.

HSE. No. 1051/2017-19.

THE TELANGANA GAZETTE

PART–II EXTRAORDINARY

PUBLISHED BY AUTHORITY

No. 10] HYDERABAD, WEDNESDAY, JANUARY 16, 2019.

NOTIFICATIONS BY GOVERNMENT

–––x–––

TELANGANA STATE LEGISLATIVE COUNCIL

BEFORE THE HON'BLE CHAIRMAN

TELANGANA STATE LEGISLATIVE COUNCIL

AT : HYDERABAD

Wednesday, the 16th January, 2019

Present: Sri K. Swamy Goud, Hon'ble Chairman

Disqualification Petition No. 2 of 2018

Between:-

1. Sri Palla Rajeshwar Reddy, M.L.C., Government Whip, Telangana Legislative Council, H.No. 8-2-293/82/Ng/32, Nandagiri Hills, Jubilee Hills, Hyderabad.

2. Sri Bodakunti Venkateswarlu, M.L.C., Government Whip, Telangana Legislative Council, Flat No. 179, Road No.10 C, MPs' & MLAs' Colony, Gayatri Hills, Hyderabad. …Petitioners

[ 1 ]

G -661/1.

AND

Sri R. Bhoopathi Reddy, M.L.C., Aditya Villa Grande, Near Dhandamudi Enclave, Jeedimetla (Vill), Quthubullapur (Mdl.), Medchal District. …Respondent

This petition having come up for hearing before me and after hearing the arguments of Sri P. Mohith Rao, Advocate representing the Petitioners and Sri T. Sujan Kumar Reddy, Advocate representing the Respondent, I pass the following:

ORDER

1. Sri Palla Rajeshwar Reddy, Member of Telangana Legislative Council, Government whip and a Member and Leader of Telangana Rashtra Samithi Party and another (herein after called "the Petitioners") filed a petition before me on 17.12.2018 under Article 191 r/w Paragraph 2 (1) (a) of the Tenth Schedule to the Constitution of India and Rule 6 of the Telangana Legislative Council (Dis- qualification on Ground of Defection) Rules, (herein after called "the rules") praying that Sri R. Bhoopathi Reddy, Member of Legislative Council (herein after called "the respondent") be disqualified under the Tenth schedule to the Constitution and his seat be declared vacant in the Telangana Legislative Council.

2. In the petition, the petitioners averred that the respondent, after having been elected to the Telangana Legislative Council, indulged in anti party activities in as much as he met the President of Indian National Congress Party and joined the said party on 14.09.2018 and also contested on behalf of the Indian National Congress Party in the pre elections from Nizamabad Rural Assembly Constituency, conducted to the Telangana State Legislative Assembly on 07.12.2018, on account of the Assembly being dissolved on 06.09.2018. In support of the contentions of the petitioners, they had Annexed several newspaper clippings along with photographs published therein and also news bulletins telecast in this regard in various electronic media channels; and contended that the respondent incurred disqualification on ground of defection as the respondent being an elected Member of the Legislative Council set up by TRS Party joined another political party (Indian National Congress) and therefore prayed that the respondent be disqualified under the provisions of tenth schedule to the Constitution of India.

3. I have perused the averments in the petition and the annexed newspaper clippings, media reports and videos; having satisfied myself that the petition complies with the requirements of Rule 6 of the Rules and in terms of sub-rule (3) of Rule 7 of the Rules, on 18.12.2018, caused a copy of the petition along with all Annexures thereto be forwarded to the respondent, in relation to whom the petition has been made, with a request to furnish his comments thereon, in writing within 7 days of the receipt of the same. In response thereto, the respondent through a letter sought time till 24.01.2019 for submitting his comments on the said petition;

considering his request, he was granted time till 03.01.2019 as the sub-rule (3) of Rule 7 of the Rules, Inter alia lays down that "a Member, in relation to whom the petition has been made , shall, within 7 days of the receipt of copy of the petition or such further period as the Chairman may have sufficient cause to allow, forward his comments in writing thereon to the Chairman". However, the respondent has not filed his reply/ comments till 03.01.2019. On 04.01.2019, a further notice was sent to the respondent as well as the petitioners requesting them to appear personally on 11.01.2019 at 12.30 PM to present their case; whereas the learned counsel for the Respondent was present on 11.01.2019, filed comments and also sought time.

Therefore, the matter was adjourned for next day i.e. 12.01.2019. On 12.01.2019, the learned counsel for the Petitioners, Sri P. Mohith Rao and the learned counsel for the Respondent, Sri T. Sujan Kumar Reddy attended hearing and reported ready for hearing.

Heard both sides.

Submissions on behalf of the petitioners:

4. The Petitioners are the members of Telangana Rashtra Samithi (hereinafter referred to as 'TRS' for brevity) which is a "Legislature Party" in the Telangana State Legislative Council and the respondent herein is a member of the TRS party; the respondent herein was nominated by the TRS party for being elected a Member to the Telangana State Legislative Council from the Nizamabad Local Authorities' Constituency and got elected on 05.01.2016. It is pertinent to mention here that the respondent herein was a member of TRS party on the date of his election to the Council. Therefore, as per the explanation to para 2(1)(a) of X Schedule to the Constitution, the respondent herein be deemed to belong to TRS party in as much as he was a Member of TRS party on the date of his election to the Council.

5. It is further submitted on behalf of the petitioners that TRS Party was formed as a Political Party on 27.04.2001 with the stated objectives to have the Geographical area of the present State of Telangana formed into a separate state. On account of serious agitations for separation of Telangana Region from the State of Andhra Pradesh, the Parliament passed the Andhra Pradesh Re-organization Act, 2014 (Act 29 of 2014) creating a new State i.e. State of Telangana with an appointed date of 2nd June, 2014 with 10 Districts. After the Re-organization Act was passed and/but prior to the appointed date, the General Elections were conducted and by that time the TRS party was registered as a Political Party, and had a common election symbol of "CAR" for all the contestants who were nominated as members in respective Assembly Constituencies in the said elections.

6. It is contended that the respondent herein on 14.09.2018 went to Delhi and joined Indian National Congress Party in the presence of its President Sri Rahul Gandhi; his joining Indian National Congress is reported in all the leading Newspapers along with Photographs such as Eenadu, The Hindu, Andhra Bhoomi, Deccan Chronicle, The Hans India, Andhra Jyothi etc.. and was also telecast in Electronic Media such as NTV, ETV, TV9, TV5, ABN Andhra Jyothi TV, Sakshi TV, etc; and also contested from Nizamabad Rural Assembly Constituency on behalf of the Indian National Congress Party in the elections that were conducted on 07.12.2018.

7. It is vehemently contended on behalf of the petitioners that the respondent herein has conclusively by his acts and by conduct "voluntarily" given up his Membership of TRS within the meaning of the said expression in para 2(1)(a) of the X Schedule to the Constitution.

8. It is further contended that the action on the part of the respondent amounts to "voluntarily giving up his Membership of such political party" the term such political party meaning the TRS on whose nomination the respondent got elected as Member of Legislative Council of the State of Telangana from Nizamabad Local Authorities' Constituency, within the meaning of said expression occurring in Para 2 (1) (a) of the X Schedule and explanation provided to sub Para 1 of Para 2 of X schedule to the Constitution of India. And the conduct of the respondent visits the Constitutional bar of disqualification to continue as a Member of the LegislativeJanuary 16, 2019] TELANGANA GAZETTE EXTRAORDINARY 5 Council, on account of defection suffered, as mandated under para 2 (1) (a) of the tenth schedule to the Constitution of India. The Learned Counsel for the petitioners also placed reliance on authoritative pronouncements of the Supreme Court in Rajendra Singh Rana and others Vs. Swamy Prasad Mourya and others, Dr. Maha Chandra Singh Vs. Chairman, Bihar Legislative Council, Kihoto Hollohan Vs. Zachillhu etc., Ravi S Naik Vs Union of India and others, G.Vishwanathan Vs Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras and another, Konda Muralidhar Rao Vs Dr.A.Chakrapani and 3 others, Speaker, Orissa Legislative Assembly Vs Utkal Keshari Parida.

In reply to the notice received, the Respondent submitted his comments through his counsel on 11.01.2019; it is taken on record.

Submissions on behalf of the Respondent:

9 The preliminary contention pleaded on behalf of the Respondent is that the petition as filed is not maintainable and the same is liable to be dismissed in limini as the same is not complying with Rule 7 (2) r/w Rule 6 (7) of the Telangana Legislative Assembly (Disqualification on Ground of Defection) Rules.

The learned counsel for the Respondent vehemently contended that the petition is not maintainable as the same is wholly based on certain newspaper clippings, media reports and videos. He further contended that he was unanimously elected as Member of Legislative Council from Nizamabad Local Authorities' Constituency and which election is not based on Party symbol nor the Election Symbols (Reservation and Allotment) Order, 1968 applies to such election, therefore, the party norm under Para 2 of X Schedule is inapplicable and the petition is liable to be rejected as not maintainable.

10. It has been further contended on behalf of the Respondent that it is true that the Respondent has contested from the Nizamabad Rural Assembly Constituency in the State Legislative Assembly elections held on 07.12.2018 and lost, but the contention that the same amounts to "Voluntarily" giving up his Membership of TRS as enumerated under para 2 (1) (a) of the X Schedule of the Constitution of India is denied, as it was the strategy of the TRS party that, some of its members join the G -661/2.

Congress and other political parties, so that they become fully aware of the happenings in those political parties, and further, if there is hung Assembly, in those circumstances, not only to return back but also to bring with them the other elected members of those Political parties, as such the respondent contested the said election on Congress ticket. Therefore, the question of the Respondent having given up his Membership of TRS does not arise and in spite of contesting the general elections of 2018 held on 07.12.2018, as it was all part of the strategy of the TRS Party and as such, it does not amount to "Voluntarily" giving up membership of the political party, so as to fall foul of para 2 (1) (a) of the X Schedule to the Constitution of India. That further, the Respondent had not acted against the aims, objectives and interest of TRS party, and was never suspended from the TRS Party.

Consideration by the Tribunal:

11. The main contention of the petitioners is that the respondent was a Member belonging to Telangana Rashtra Samithi Party as on the date of his election to the Council is not disputed during the course of the hearing by the respondent; the respondent having received the petition along with all Annexures filed his comments to the petition, but nowhere in the said comments, he denied that he was not a member of TRS party as on the date of his election. Therefore, in the absence of a contra pleading or oral submission, it can be safely concluded that it is an admitted fact that the respondent was a Member of Telangana Rashtra Samithi Party as on the date of his election to the Council and be deemed to belong to TRS political party.

12. The petitioners had relied mainly on newspaper clippings and video recordings which appear on various TV channels as proof of the anti party activities of the respondent and is having voluntarily given up Membership of the TRS party; the respondent has objected to the use of newspaper clippings and video recordings as evidence by the petitioners contending that newspaper articles cannot be relied upon as evidence in the absence of any corroborative material. However, in the instant case, I see no reason as to why so many newspapers and media channels would publish /report something wrongly and if that was so, then the least that was expected from the respondent was to forthwith deny the same and issue clarification / explanation in that regard. Many leading national and regional /state newspapersJanuary 16, 2019] TELANGANA GAZETTE EXTRAORDINARY 7 and media channels did in fact report about the respondent joining the Indian National Congress party in the presence of Sri. Rahul Gandhi. I have seen the video records; video recording thus provide ample and irrefutable proof that the respondent had indeed joined Indian National Congress Party and instead of categorically denying or refuting the allegations appearing in the newspaper clippings, media reports , he has himself admitted through his counsel during the course of oral arguments that he had met Sri. Rahul Gandhi at Delhi and joined Indian National Congress Party. He had also admitted in his comments to the petition that he in fact, contested the General Elections to the Assembly held on 07.12.2018 from Nizamabad Rural Constituency on Indian National Congress ticket.

"2. Disqualification on ground of defection.—(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House—

(a) if he has voluntarily given up his membership of such political party;

or

(b) x x x x x x

Explanation—For the purposes of this sub-paragraph,—

(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;

(b) a nominated member of a House shall,—

(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(2) x x x x x x

(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.

(4) x x x x x

Therefore, the above contention of the respondent is rejected. The contention of the Respondent that he was unanimously and unopposed elected as a Member of Legislative Council from the Nizamabad Local Authorities constituency without any symbol or election symbol, therefore he does not incur disqualification is misconceived. The material fact to be verified in the light of the provisions of Tenth Schedule of Constitution of India is to ascertain the fact whether the Respondent was a member belonging to a particular party and whether he had joined any political party after six months from the date of his election to the Council. In the instant case, the Respondent himself has admitted that he contested the Assembly election held to State Legislative Assembly from Nizamabad Rural Assembly Constituency on the Congress party ticket. Therefore, the very said submission of the Respondent is sufficient enough to declare that he has incurred disqualification under law. The other contentions of the Respondent need not be gone into, in view of his specific admission that he joined Indian National Congress and contested the Assembly election on the party ticket of Indian National Congress.

13. Paragraph 2 (1) (a) of the Tenth Schedule states that 'a member of a House belonging to a political party shall be disqualified for being a member of the House, if he has voluntarily given up his membership of such political party'. The term 'voluntarily given up membership' has been amply clarified by the Supreme Court in its judgment, dated the 9th February, 1994, in Ravi Naik Vs Union of India [1994 AIR 1558, 1994 SCR (1), 754, 1994 SCC Supl. (2) 641, JT 1994 (1) 551, 1994 SCALE (1) 487], wherein the Court had inter alia observed as follows:-

"The words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from the member an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs." In the same case, the Supreme Court had upheld the decision of the Speaker of the Goa Legislative Assembly disqualifying two MLAs, who were elected on the ticket of the Mahrashtrawadi Gomantak Party (MGP), on the conduct alone of their accompanying the Leader of the Congress (I) Legislature Party in Goa, when he met the Governor to show that he had the support of twenty MLAs.

14. The Supreme Court in its orders, dated the 24th of January, 1996, in G. Viswanathan Vs. The Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras & Another [1996 AIR 1050, 1996 SCC (2) 353, JT 1996 (1) 607, 1996 SCALE (1) 531], had also inter alia observed as follows:

"The act of voluntarily giving up the membership of the political party may be either express or implied."

15. In view of such authoritative pronouncements by the Hon'ble Supreme Court, while deciding the petition in which the allegation is of the violation of paragraph 2 (1) (a) of the Tenth Schedule, the role of the Chairman, as the designated authority, is only in the domain of ascertaining the facts and once the facts are gathered or placed to show some action, express or implied, within the meaning of paragraph 2 (1) (a) of the Tenth Schedule, to take a decision in the matter. The limited role which a Presiding Officer has to perform under the above-cited paragraph of the Tenth Schedule has been amply clarified by the Supreme Court in Dr. Mahachandra Prasad Singh Vs. Chairman, Bihar Legislative Council & Ors [(2004) 8 SCC 747], wherein, it had observed as under:-

"It may be noticed that the nature and degree of inquiry required to be conducted for various contingencies contemplated by paragraph 2 of the Tenth Schedule may be different. So far as clause (a) of paragraph 2 (1) is concerned, the inquiry would be a limited one, namely, as to whether a member of the House belonging to any political party has voluntarily given up his membership of such political party."

16. As such, it now remains for me to decide, whether expressly or by impliedly that the Respondent has voluntarily given up the membership of his political party, namely, TRS Party. From the actions of the Respondent and based on the material/ evidence presented before me, it can be inferred that he has voluntarily given up his membership of TRS Party.

17. After taking into account the facts of the case, the oral submissions made by the Counsel for the Respondent during the personal hearing on 12.01.2019 and the judgments of the Hon'ble Supreme Court, which were cited by the Council for the Petitioners particularly the observations of the Hon'ble Supreme Court in Ravi S Naik Vs Union of India and similar anti defection cases, it is crystal clear that the G -661/3.

respondent, namely, Sri R. Bhoopathi Reddy, by his conduct and action, has voluntarily given up his membership to the political party, viz., TRS Party to which he was a Member as on the date of his election to the Telangana Legislative Council.

18. Therefore, I hold that the respondent, Sri R. Bhoopathi Reddy has incurred disqualification for being a Member of the Telangana Legislative Council in terms of para 2 (1) (a) of the tenth schedule to the Constitution of India. He has thus ceased to be a Member of the Telangana Legislative Council with immediate effect. I decide and declare accordingly.

K. SWAMY GOUD, Chairman, Telangana Legislative Council.

Hyderabad, 16-01-2019.

V. NARASIMHA CHARYULU, Secretary to State Legislature.

EXHIBITS MARKED

K. SWAMY GOUD, Chairman, Telangana Legislative Council.

Hyderabad, 16-01-2019.

V. NARASIMHA CHARYULU, Secretary to State Legislature.

Printed and Published by the Commissioner of Printing, Government of Telangana at Government Central Press, Chanchalguda, Hyderabad.