D.N.Jeevaraju & Anr vs D.Sudhakar & Ors.Etc

M.W.No.9995/10, M.W.No.10529/10, M.W.No.10698/10, 2

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 3

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 8th

October, 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 by

5.00 p.m. on 10th October, 2010, as to why

appropriate orders should not be passed for their 4

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 5

that they had not been individually served with

copies of the said show-cause notice and that on 9th

October, 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 5

taken 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 Respondent

Nos.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 6

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.1

to 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 7

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 hereinbelow :

"9. 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."

8 7. 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 of

2010, 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 nor

had 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 9

sentence of paragraph 9, which reads as,

"petitioner has not left the Bhartiya Janata Party

at 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.

10

11. Initially, Mr. Mukul Rohtagi, learned Senior

Advocate, appeared for the Petitioners herein, and

submitted that the statements made in paragraph 9

of 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) 1

SCC 242], where the provisions of Section 58 of the

Evidence Act, 1872, fell for consideration and 11

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 12

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 proprio

vigore. 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 13

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 made

that 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

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 15

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 paragraph

2(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 16

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 16

M.L.As., who had withdrawn their support to him,

disqualified before the Assembly met on 11th

October, 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 17

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 on

6th 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 5

herein, 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. 18

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 on

10th 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, 19

2010, itself, the Speaker passed separate orders

disqualifying the 11 B.J.P. M.L.As. and the 5

independent 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 11th

October, 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. 20

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 9

of the writ petitions to the effect that the

petitioners had not left the Bhartiya Janata Party

at all, was not a mistake but was intentionally

made, and that the High Court had erroneously held 21

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.1

to 5 have in no uncertain terms in paragraph 8

stated 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 22

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 herein

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 23

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 thereby

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

nowhere, except in one stray sentence in paragraph

9 of the writ petitions, had the Respondent Nos.1

to 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 24

of the proceedings itself being under paragraph

2(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.