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ORDER

The writ petitions are filed praying for quashing the

order of disqualification of the petitioners from the Karnataka

State Legislative Assembly. The Chief Whip of Bharatiya

Janata Party (one of the complainant), the Speaker of the

Vidhana Sabha (who has passed the impugned order) and

one of the members of the Legislative Assembly (another

complainant) are arrayed as respondents.

Misc.W.No.10698/2010 is filed praying for impleading Sri

B.S.Yeddyurappa, Chief Minister of Karnataka State and Sri

K.G.Bopaiah, Speaker of the Karnataka Vidhana Sabha.

Though Speaker is arrayed as respondent No.2 in the writ

petitions, the petitioners have filed this application to implead

the Speaker in person also.

2. It is argued on behalf of the petitioners that

certain allegations of mala fide are made against Sri

B.S.Yeddyurappa and Sri K.G.Bopaiah in the writ petitions

and therefore they are sought to be impleaded. It is

contended that the proposed respondents have colluded with

each other for mutual gain and as such, the proposed

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respondent No.5 has passed the impugned order to save the

position of the proposed respondent No.4. In view of the

personal allegations against the proposed respondents, they

are proper and necessary parties to the petitions.

3. The application is opposed by the learned

advocates appearing on behalf of respondents and proposed

respondent No.4 on the ground that the allegations made

against the proposed respondents are all false; that the

impleadment should have been made at the inception itself

i.e., at the time of filing of the writ petitions; that the

application for impleading is made to fill up the lacuna; that

the impugned order is passed by the Speaker on the

complaint of respondent Nos.1 and 3 and the persons

disqualified are the petitioners, hence, the present litigation

is practically between the petitioners (i.e., disqualified

members of the Assembly) and the Speaker as well

respondents 1 and 3 who had filed the disqualification

petitions (complaints) and therefore, it is not necessary to

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implead the Chief Minister and the Speaker by name as the

respondents.

Sri S.Vijaya Shankar, learned Senior Counsel appearing

on behalf of the Speaker, though filed the affidavit of the

Speaker denying the allegations, did not oppose the

application for impleadment.

4. In the back drop of the rival contentions, a perusal

of the writ papers would indicate that the writ petitions

contain certain allegations of mala fide made against the

proposed respondents. It is well settled law that no man

should be condemned unheard. It is also the well settled

proposition that if allegations of mala fide are made against

any person/authority, during the course of pleading he

should be impleaded in his personal capacity so as to give

him an opportunity to contest the allegations. If the

proposed respondents are not permitted to be impleaded as

respondents, then there will be no opportunity for the

proposed respondents to contest the allegations and to

defend themselves. That apart, only if the proposed

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respondents are impleaded, the petitioners can be heard to

complain about mala fide in the impugned action. Hence,

this Court can decide these writ petitions effectively only in

the presence of the proposed respondents.

5. If proposed respondents are impleaded in the writ

petitions, it is open for them either to participate in the

proceedings or not. But the law and equity demand that

they should be arrayed as party-respondents for the

aforementioned reasons.

6. Though Sri B.S.Yeddyurappa, Chief Minister, has

not passed the impugned order, the petitioners allege that he

has taken active part to influence the decision reached by the

Speaker and there is collusion between them. Further

certain personal allegations have been made against Sri

B.S.Yeddyurappa. Hence, the proposed respondents are not

only proper parties, but are also necessary parties. In the

light of such serious allegations, we deem it just and proper

to permit the petitioners to implead the proposed

respondents in the writ petitions.

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7. It is needless to observe that, while considering this

application for impleading, the truth or otherwise of the

allegations need not be gone into. The said aspect can be

considered by this Court while deciding the matters on

merits after providing opportunity to the proposed

respondents to rebut such allegations. Such questions are

kept open. The contention relating to maintainability of two

writ petitions against a common order, need not be dealt

with at this stage, and the same is also kept open.

8. The contention of Sri Sathyapal Jain, learned Senior

Counsel that the writ petitions are liable to be dismissed on

the ground of non-joinder of necessary parties (i.e., Speaker

and Chief Minister by name) and the same cannot be

permitted to overcome by impleading the proposed

respondents, also deserves to the rejected. Firstly, because

the aforementioned submission presupposes that the

proposed respondents are necessary parties. If it is so, the

law and equity demand that they should be impleaded.

Secondly, the provisions of CPC cannot have effect of

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curtailing the content and scope of Articles 226 & 227 of the

Constitution of India. Any violation of the procedural laws

would amount to an irregularity that too curable. If the

aforementioned contention made on behalf of the

respondents is accepted, we would be elevating the

procedural rules to the status of the provisions of the

Constitution of India. The procedural rules have a status

subordinate to the Constitution of India and cannot be

equated to the provisions of Constitution of India. In this

regard it is relevant to refer to the decision in the case of

Ramesh Chandra Sankla –vs- Vikram Cement, reported

in (2008) 14 SCC 58, wherein it is observed thus :

“Para-90 : Now, it is well settled

that jurisdiction of the High Courts
under Articles 226 & 227 is discretionary
and equitable. Before more than half a
century the High Court of Allahabad in
the leading case of Jodhey –vs- State
observed: (AIR p. 792, para 10)

`10. …. There are no limits,

fetters or restrictions placed
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on this power of
superintendence in this clause
and the purpose of this article
seems to be to make the High
Court the custodian of all
justice within the territorial
limits of its jurisdiction and to
arm it with a weapon that
could be wielded for the
purpose of seeing that justice
is meted out fairly and
properly by the bodies
mentioned therein.’

Para-91: The power of

superintendence under Article 227 of the
Constitution conferred on every High
Court overall courts and the tribunals
throughout the territories in relation to
which it exercises jurisdiction is very
wide and discretionary in nature. It can
be exercised ex debito justitiae i.e, to
meet the ends of justice. It is equitable
in nature. While exercising supervisory
jurisdiction, a High Court not only acts
as a Court of law, but also as a Court of
equity. It is, therefore, power and also
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the duty of the Court to ensure that

power of superintendence must
`advance the ends of justice and uproot
injustice’.”

(Emphasis supplied)

Moreover, the procedural laws will aid the judicial

process for arriving at the just conclusion. They cannot be

used for curtailing the judicial process.

For the aforementioned reasons,

Misc.W.No.10698/2010 succeeds, accordingly the same is

allowed.

(MOHAN SHANTANAGOUDAR)
JUDGE

(S.ABDUL NAZEER)
JUDGE

(A.S.BOPANNA)
JUDGE
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*bk/ck/-
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