Uttarakhand President Rule

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. _____OF 2016

(Arising from the Final Judgment dated 21.04.2016 passed by

the Hon’ble Uttarakhand High Court at Nainital in Writ Petition

(M/S) No. 795/2016)

IN THE MATTER OF:

UNION OF INDIA …PETITIONER

Versus,

SH. HARISH CHANDRA SINGH RAWAT & ANR.

…RESPONDENTS

I.A. No. ____/2016 Application for permission to file Special Leave to Appeal without certified as well as plain copy of the impugned judgment dated 21.04.2016

I.A. No. ____/2016 An Application for permission to file the

Lengthy Synopsis and List of Dates. I.A. No. ____/2016 An Application for exemption from filing

certified copy of the impugned judgement dated 21.04.2016

PAPER BOOK (FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: MRS. ANIL KATIYAR

Filed On: 22.04.2016

INDEX

S.NO. PARTICULARS PAGES

1. Office Report On Limitation -A-

2. Listing Performa A1 - A2

3. Synopsis and List of dates B -

4. Impugned Judgment dated 21.04.2016 passed by the Hon’ble Uttarakhand High Court at Nainital in Writ Petition (M/S) No. 795/2016 (Copy of the impugned judgment has not become available. The letter written by the Assistant Solicitor General, Uttarakhand informing the outcome of the writ petition is being placed with prayer for leave to file the copy of the impugned judgment immediately on its becoming available.)

5. Special Leave Petition with Affidavit

6. APPENDIX i. Article 356 of the Constitution of India ii. Article 212 of the Constitution of India

7. ANNEXURE- P1 Copy of notification of Proclamation dated 27.03.2016 issued by the Hon’ble President of India.

8. ANNEXURE- P2 Copy of the order dt. 29.03.2016 passed by the ld. Single judge of the Hon’ble Uttarakhand High Court in WP No. 795(M/S)/2016.

9. ANNEXURE- P3 Copy of the order dt. 30.03.2016 passed by the ld. Division Bench of the Hon’ble Uttarakhand High Court in Special Appeal No. 64/2016.

10. I.A. ____ / 2016 Application for permission to file Special Leave to Appeal without certified as well as plain copy of the impugned judgment dated 21.04.2016

11. I.A. ____ / 2016 An Application for permission to file the Lengthy Synopsis and List of Dates.

12. I.A. ____ / 2016 An Application for exemption from filing certified copy of the impugned judgement dated 21.04.2016

SYNOPSIS AND LIST OF DATES

The present Special Leave Petition is being filed against

the impugned judgment dated 21.04.2016 passed by the ld.

Division Bench of the Hon'ble Uttarakhand High Court at Nainital

in Writ Petition No. 795 (M/S) of 2016 titled as Shri Harish

Chandra Singh Rawat Vs. Union of India & Anr.

Vide its impugned judgment dated 21.04.2016

[pronounced in open court], the Hon’ble High Court has been

pleased to quash the Proclamation dated 27.03.2016 issued

under Article 356 of the Constitution – imposing President’s Rule

in the State of Uttarakhand.

It is humbly submitted that the impugned judgment of

the Hon’ble High Court has been pronounced in open Court and

a copy thereof has not become available. The petitioner has

already applied for a certified copy of the impugned judgment.

There is an imminent urgency to challenge the legality and

validity of the impugned judgment by filing the present SLP. It is

due to the urgency in the present matter and the paucity of

time that the present Special Leave Petition is being filed by the

Petitioner without annexing a copy of the impugned judgment,

which has not become available. The present Special Leave

Petition has been filed on the basis of the telephonic

conversation and communication received from the counsel for

the Union of India, i.e. the Asst. Solicitor General for India at

the Hon’ble Uttarakhand High Court at Nainital. A true copy of

the letter dated 21.04.2016 sent by the Asst. Solicitor General

for India is annexed with this Special Leave Petition. The

petitioner craves leave of this Hon’ble Court for permission to

file the present Special Leave Petition without the impugned

judgment. The petitioner undertakes to place on record the

copy of the impugned judgment immediately on its becoming

available.

It is further submitted that the present SLP is being filed

only on the basis of the telephonic conversation and

communication dt. 21.04.2016 of the Assistant Solicitor General

of India, Uttarakhand and the petitioner further seeks leave of

this Hon’ble Court to alter / modify / add / amend the present

SLP with additional and further grounds – upon perusing of the

impugned judgment passed by the Hon’ble High Court.

On that basis, it is submitted that after quashing the

Proclamation dt. 27.03.2016, the Hon’ble High Court has been

pleased to, inter alia, direct as under:-

i. Status quo as on 27.03.2016, i.e. the date when the

impugned Presidential proclamation was issued – shall be

maintained.

ii. Floor test shall be held in the Uttarakhand Vidhan

Sabha on 29.04.2016.

It is most respectfully submitted that the impugned

judgment of the Hon’ble High Court is contrary to the settled

principles of law laid down by this Hon’ble Court and the Hon’ble

High Courts. The Hon’ble High Court has not remained within

the permissible limits of judicial review of Presidential

proclamation issued under Article 356 of the Constitution of

India – as laid down in various judicial pronouncements of this

Hon’ble Court and the Hon’ble High Courts. The impugned

judgment, being contrary to the settled principles of law,

deserves to be set aside by this Hon’ble Court.

LIST OF DATES

30.01.2012: The 3rd General Elections were held for the 70-

member Legislative Assembly of the State of

Uttrakhand.

6.03.2012: The results of the 3rd General Election for the

Legislative Assembly of the State of Uttarakhand

were announced on 6.03.2012. The Indian

National Congress [INC] emerged as the single

largest party with 32 seats in the 70 member

Legislative Assembly. The INC formed its

government with the help and support of:-

i) one (1) MLA from Uttrakhand Kranti Dal,

ii) three (3) independent MLAs, and

iii) three (3) MLAs from Bahujan Samaj Party

(BSP).

In the said elections, the main opposition party

namely the Bharatiya Janata Party (BJP) got 31

seats.

Thereafter, due to vacancies that arose, bye -

elections were held in certain constituencies. As

on 18.03.2016, the party-wise breakup of seats in

the Uttarakhand Legislative Assembly was as

follows:-

i) 36 members of Indian National Congress (INC)

ii) 28 members of Bharatiya Janata Party (BJP)

iii) 2 members of Bahujan Samaj Party (BSP)

iv) 1 member of Uttarakhand Kranti Dal [P] (UKD

[P])

v) 3 independents.

09.03.2016: The Uttarakhand Legislative Assembly had been

summoned by the Hon’ble Governor for its

Budget Session commencing from 09.03.16. The

address by the Hon’ble Governor was delivered

at the beginning of the Session on 09.03.16.

18.03.2016

(10.30 a.m.

and 11.10

a.m.)

Earlier in the day on 18.03.16, 27 MLAs of the

BJP, led by Sh. Ajay Bhatt, Leader of the

Opposition, had submitted a representation to the

Secretariat of the Hon’ble Governor, inter alia,

pointing out therein that on the said day the

Appropriation Bill 2016-17 was to be presented

before the House. Further, with reference to Rule

296 of the Rules of Procedure of the Uttarakhand

Assembly, a demand had been made that

division of vote should take place on the

Appropriation Bill 2016-17. The Hon’ble Governor

had been requested to require the Hon’ble

Speaker and the House to hold a division of vote

on the Appropriation Bill 2016-17, in terms of

Rule 296(1) of the Rules of Procedure and

Conduct of Business of Uttarakhand Legislative

Assembly of 2005.

This representation had been received in

the office of the Hon’ble Governor at about 10.30

a.m. on 18.03.16. The Hon’ble Governor was not

in Dehradun. Sh. Ajay Bhatt, Leader of

Opposition had contacted the Hon’ble Governor

on phone and informed him of the representation

of these 27 MLAs. The Hon’ble Governor had

instructed his Secretariat to receive the

representation of these 27 MLAs and directing

further that the said representation of 27 MLAs

asking for division of vote on the Appropriation

Bill 2016-17, received in his Secretariat should be

forwarded to the Hon’ble Speaker. It was also

directed that the audio and video recording of the

proceedings of the House should also be

obtained from the Hon’ble Speaker.

In accordance with the directions of the

Hon’ble Governor, the said representation of 27

MLAs of BJP requiring the division of vote on the

Appropriation Bill 2016-17 – was forwarded by fax

to the Hon’ble Speaker alongwith a letter dated

18.03.16 addressed by the OSD and Secretary to

the Hon’ble Governor (total 4 pages), at about

11.10 a.m. on 18.03.16.

18.03.2016

(at around

1.00 p.m.)

The Hon’ble Governor had arrived at Dehradun at

about 1.00 p.m. on 18.03.16 and had been

apprised of the carrying out of his directions in

relation to the representation of 27 MLAs of BJP

requiring the division of vote on the Appropriation

Bill 2016-17, which had been forwarded by fax at

about 11.10 a.m.

18.03.2016

(at about

2.25 p.m.)

At about 2.25 p.m. on 18.03.16, the Hon’ble

Governor had received another representation dt.

18.03.16 from the Leader of Opposition, inter alia,

contending therein that one BJP MLA, Sh.

Ganesh Joshi, had been arrested at about 8.45

a.m. from a hotel during a meeting of the BJP

Legislative Committee. Sh. Ajay Bhatt, Leader of

the Opposition, had submitted a memorandum dt.

18.03.16, to the Hon’ble Governor reporting this

event and raising a grievance for such an illegal

and unconstitutional act in relation to Sh. Joshi

and requesting for issuance of appropriate

instructions for his participating in the

proceedings of the Assembly on 18.03.16.

This memorandum dt. 18.03.16 received

at about 2.25 p.m. by the Hon’ble Governor was

directed to be forwarded to the Hon’ble Speaker.

In accordance with the direction of the Hon’ble

Governor, this memorandum of Sh. Ajay Bhatt,

Leader of Opposition regarding the arrest of BJP

MLA Sh. Ganesh Joshi alongwith a covering

letter dated 18.03.16 signed by the OSD and

Secretary to the Hon’ble Governor, was

forwarded to the Hon’ble Speaker by fax (2

pages), at 2.53 p.m. on 18.03.16.

18.03.2016

(at about

7.30 p.m.)

Immediately upon introduction of the

Appropriation Bill 2016-17 in the Uttarakhand

Legislative Assembly at about 7.30 p.m. in the

evening on 18.03.2016, a demand for division of

vote was made by 35 MLAs (26 MLAs of BJP and

9 MLAs of Congress) on the floor of the House.

At that point of time, only 67 MLAs and the

Hon’ble Speaker were present in the House. The

petitioner in the writ petition before the High Court

/ Respondent No. 1 herein in the present SLP -

was also present. The demand for division of vote

by 35 MLAs on the floor of the House had

constituted a demand by the majority.

It appears that despite receiving the copy

of the representation of 27 MLAs demanding for

the division of vote in terms of Rule 296(1) with

reference to the Appropriation Bill 2016-17 having

been forwarded as per the directions of the

Hon’ble Governor and further despite the same

demand having been made by 35 MLAs on the

floor of the House (out of total 68 MLAs present in

the House), division of vote was not taken /

carried out by the Hon’ble Speaker.

On the contrary, it had been claimed that

the Appropriation Bill 2016-17 had been passed

by a voice vote at about 7.30 p.m. At about 7.43

p.m. on 18.03.16, the proceedings of the House

had been adjourned to 28.03.16 by the Hon’ble

Speaker.

18.03.2016

(at about

11.30 p.m.)

The Secretariat of the Hon’ble Governor, at about

11.30 p.m. on 18.03.16, had received another

memorandum signed by the 35 MLAs - including

Sh. Ajay Bhatt, Leader of Opposition alongwith 34

other MLAs, inter alia, contending that they had

met the Hon’ble Governor earlier in the day on

18.03.16 for division of vote in the House on the

Appropriation Bill 2016-17, however, despite

specific demand also having been made on the

floor of the House by 35 MLAs for division of vote

on the Appropriation Bill 2016-17, the same had

not been taken / carried out. It was contended

that the Government had lost the confidence of

the House and is conducting itself in an

unconstitutional manner. It was also contended

that there were 68 MLAs present in the House

including the Hon’ble Speaker. Out of them, 35

MLAs had opposed the Appropriation Bill 2016-17

and therefore, the said Appropriation Bill had not

been passed and the Government is in minority.

Along with the above-mentioned

memorandum signed by 35 MLAs – including Sh.

Ajay Bhatt, Leader of Opposition and 34 other

MLAs [handed over at about 11.30 p.m. on

18.03.16], copies of two more resolutions

[addressed to the Secretary, Vidhan Sabha] –

one for removal of the Hon’ble Speaker and the

other one for the removal of Hon’ble Deputy

Speaker of the House, had been furnished to the

Hon’ble Governor. These resolutions had been

signed by 35 MLAs.

19.03.2016 A communication / special report dt. 19.03.16

was sent by the Hon’ble Governor to the Hon’ble

President of India giving his preliminary view on

account of events regarding the proceedings of

Uttarakhand Legislative Assembly on 18.03.16

including that the Hon’ble Speaker had claimed

the passing of the Appropriation Bill by voice

vote, finality of such a decision etc. In this

communication / special report of the Hon’ble

Governor dt. 19.03.16, the events which had

taken place on 18.03.16, inter alia, the direction

of the Hon’ble Governor to forward the

representation of 27 MLAs for division of vote on

the Appropriation Bill 2016-17 to the Hon’ble

Speaker had been reiterated. The memorandum

with regard to Sh. Ganesh Joshi was also

reiterated. The fact that at about 7.30 p.m. on

18.03.16, a demand for division of vote on the

Appropriation Bill had been made on the floor of

the House, had also been reiterated. Sh. Ajay

Bhatt, Leader of Opposition calling up the Hon’ble

Governor at about 8.00 p.m. and informing him

that according to him the Government has fallen,

was also incorporated. The fact that 35 MLAs –

including Sh. Ajay Bhatt, Leader of Opposition

alongwith 34 MLAs had called upon the Governor

at Raj Bhavan and handed over a letter signed by

35 MLAs stating that the Appropriation Bill had

not been passed in the House etc., was also

incorporated.

19.03.2016 By another communication dt. 19.03.16,

addressed by the Hon’ble Governor to the then

Hon’ble Chief Minister, the necessity to seek a

vote of confidence from the State Legislature at

the earliest but not later than 28.03.16 having

already been conveyed to him, was incorporated.

20.03.2016 Another communication was addressed by the

Hon’ble Governor to the then Hon’ble Chief

Minister on 20.03.16 reiterating his advice that a

vote of confidence be taken at the earliest and

that this be done without any delay.

20.03.2016 The Hon’ble Governor, on 20.03.16, wrote to the

Hon’ble President conveying that on 19th March

the then Hon’ble Chief Minister had been asked

to seek a vote of confidence at the earliest but not

later than 28th March; that the then Chief Minister

had subsequently called upon the Governor in the

evening and given his version of events when he

was once again advised to seek the vote of

confidence at the earliest and without any delay;

that another letter has been sent to the then Chief

Minister on the morning of 20th March 2016

reiterating the same.

21.03.2016 The Hon’ble Governor wrote to the Hon’ble

President on 21.03.16 conveying that the then

Chief Minister along with Parliamentary Affairs

Minister Smt. Indira Hridyesh had met the Hon’ble

Governor on the evening of 20th March 2016. The

then Hon’ble Chief Minister was told that there

were reports of law and order problem at the

residences of some of the rebel Congress MLAs.

The then Hon’ble Chief Minister was very firmly

advised and in no uncertain terms that the vote of

confidence be taken within the next 2-3 days as

had been repeatedly emphasized by the Hon’ble

Governor that it had to be done at the earliest.

The then Hon’ble Chief Minister expressed his

inability in the matter. The then Hon’ble Chief

Minister expressed his inability to intervene at this

stage when the Speaker had already initiated the

process. The then Hon’ble Chief Minister also

claimed that there was no irregularity in the

House, at which point he was shown the

proceedings of the Assembly where a demand for

vote by division was made but was not allowed.

The then Hon’ble Chief Minister had contended

that the decision of the Hon’ble Speaker was final

in the matter. Smt. Indira Hridyesh was called in

by the Hon’ble Governor. She raised the issue of

No Confidence Resolution against the Hon’ble

Speaker and Hon’ble Deputy Speaker and had

said that a 14 days period was essential. Three

MLAs of Congress i.e. Sh. Vijay Bahuguna, Sh.

Harak Singh Rawat and Smt. Amrita Rawat had

submitted a letter to the Hon’ble Governor on 20th

March 2016 stating that there was breakdown of

constitutional machinery as majority of MLAs

have voted against the Money Bill and the

defeated Money Bill was claimed to have been

“passed”. In the said letter, an apprehension is

also expressed that the erstwhile State Govt.

would use the next one week to convert a

minority into majority either by horse trading or by

disqualification of MLAs. Certain other events had

also been reiterated.

The Hon’ble Governor in his letter dated

21.03.16 had also proceeded to state that on the

night of 20th March 2016, the then Hon’ble Chief

Minister had replied to the Hon’ble Governor’s

letter advising him to seek a vote of confidence,

stating that this has been conveyed to the

Hon’ble Speaker who has informed that the next

session of the Assembly will commence on 28th

March 2016 at 11.00 a.m. The legal issues

connected with Article 181 of the constitution in

the matter of No Confidence Motion against the

Speaker and Deputy Speaker are being

examined.

23.03.2016 On 23.03.16, a message under Article 175(2) was

sent by the Hon’ble Governor to the Vidhan

Sabha of Uttarakhand. In the said message it was

stated that a group of 35 MLAs had visited the

Raj Bhawan on 18.03.16 and had submitted a

Memorandum, inter alia, questioning the status of

Appropriation Bill 2016. It was urged that despite

35 Members requesting for a voting by division,

they were ignored by the Speaker. It was

contended that this resulted into denying them

their right to vote on the Appropriation Bill.

The then Hon’ble Chief Minister vide his

communication dt. 20.03.16, had intimated that

the vote of confidence will be sought on 28.03.16,

when the Assembly meets at 11.00 a.m. It had

been directed by the Hon’ble Governor that the

proceedings of the Assembly on 28.03.16 shall

be conducted peacefully, upholding the spirit of

democracy. The results of the voting by division

shall be declared soon thereafter. The entire

proceedings of the Assembly shall be recorded

and videographed and authenticated copy of the

video and other records shall be sent to the

Governor with the transcript of the proceedings

the same day.


Hon’ble President conveying that the then

Hon’ble Chief Minister will be seeking a vote of

confidence from the House on 28.03.16, when it

meets after the vacation. A message under

Article 175(2) has already been sent to the

Speaker. Hon’ble Governor had called the

Secretary of the Vidhan Sabha and given him

detailed directions vide his communication dt.

23.03.16. On a petition of the Chief Whip and

Minister of Parliamentary Affairs, Smt. Indira

Hridyesh, the Speaker had issued show cause

notice to 9 Congress MLAs under the Anti

Defection Rules of the Uttarakhand Legislative

Assembly. These notices were issued on

19.03.16 and were returnable on 26.03.16.


Hon’ble President, inter alia, conveying that at

11.00 a.m. on 26.03.16, a closed cover was

received at Raj Bhavan from the office of Sh.

Bahuguna. The closed cover had a

representation addressed to the Hon’ble

Governor by Sh. Harak Singh Rawat. The letter

also had a pen drive attached with it. The pen

drive contained, inter alia, 3 audio conversations

and one video recording. The transcript of the

conversation in the video was also attached with

the representation.

In this video, the then Hon’ble Chief

Minister was clearly visible but the other person in

conversation with him (claimed to be one Sh.

Umesh Sharma) was not clearly

visible/identifiable. The conversation is indicative

of monetary and other allurements being

discussed. The representation alongwith the pen

drive and the transcript was forwarded by the

Hon’ble Governor to the Hon’ble President of

India. The contents of the pen drive were being

analyzed for their veracity.

26.03.2016 The Hon’ble Governor addressed another

communication / report to the Hon’ble President

on 26.03.16. Inter alia, the following had been set

out therein:-

i. The Budget Session had started on

09.03.16 with the address of the Governor

and a total of 8 sittings had already been

held upto 18.03.16.

ii. It has been reiterated that on 18.03.16, the

Appropriation Bill for F.Y. 2016-17 was to

be passed. When the Appropriation Bill was

taken up, a demand for division had been

made.

iii. Similarly, it has also been reiterated that

earlier in the day on 18.03.16, 27 MLAs of

the BJP had addressed a representation to

the Hon’ble Governor requesting for a vote

on division of the Appropriation Bill. This

representation was forwarded to the

Speaker of the Assembly. Directions for

audio video recording of the proceedings to

the Governor were also conveyed.

iv. The fact of memorandum with regard to

arrest of Sh. Ganesh Joshi and request for

his participation in the proceedings of the

House on 18.03.16 by the Leader of the

Opposition was also reiterated.

v. At about 7.30 p.m., as soon as Sh. Ajay

Bhatt, Leader of the Opposition rose

demanding a division, the Speaker made an

announcement in the prevailing

pandemonium that the Appropriation Bill

has been passed and thereafter left the

Assembly Chamber after adjourning the

House for 28.03.16.

vi. Sh. Ajay Bhatt, Leader of the Opposition

had informed the Hon’ble Governor on

telephone at about 8.00 p.m. that the

Government has fallen and that he was

coming to Raj Bhavan with his suupporters.

vii. At 11.30 p.m., 35 MLAs – including Sh. Ajay

Bhatt, Leader of the Opposition along with

34 MLAs called upon the Governor and

handed over a letter signed by 35 MLAs

stating that the Appropriation Bill had not

been passed. Since the Appropriation Bill

had not been passed, the Government had

fallen and needed to be dismissed. There

were only 68 members present in the

House while 35 were with them and they

had all opposed the Appropriation Bill. They

also claimed that in addition to these 35

MLAs, they also had support of at least 3

more MLAs viz. Sh. Ganesh Joshi (in police

custody), Sh. Bheem Lal Arya of BJP and

Sh. Sarwat Karim Ansari (BSP).

viii. The Hon’ble Speaker had claimed the

Appropriation Bill passed by voice vote,

finality of such a decision etc.

ix. It is also stated that till date i.e. till the date

of writing of this communication on

26.03.16, the Appropriation Bill 2016-17

had not been forwarded by the Speaker to

the Governor.

x. The Hon’ble Governor has also stated in

this report dated 26.03.16 that in the

meantime he had also examined the

proceedings of the Uttarakhand Vidhan

Sabha of March 18, as conveyed by the

Hon’ble Speaker under his signature,

alongwith the video recording of the

relevant time. A perusal of the proceedings

had made it clear that at the time of passing

of Uttarakhand Appropriation Bill 2016-17, a

demand was made under rule 296(1) for a

vote by division, but neither a division took

place, nor voting by show of hands, as

provided in the rules. The Appropriation Bill

was passed in din and chaos without any

specific vote in favour or against the Motion

getting recorded.

While setting out certain other aspects in

this communication dt. 26.03.16, it had been

stated that even though the veracity of the video

presented in the pen drive, is yet to be fully

established, it is prima facie obvious that plans

had been afoot to indulge in horse trading of

MLAs and the then Hon’ble Chief Minister is party

to such machinations. A serious apprehension

was also expressed with regard to conduct of the

proceedings on 28.03.16. It has been stated that

in the given situation and the surcharged

atmosphere, it is possible that the Assembly

proceedings on 28th March, may unruly, chaotic

and violent.

During the arguments and in response to

a query it was submitted to this Hon’ble Court that

on 26.03.2016, the Central Government (with a

covering letter dt. 26.03.2016 signed by the

Director in the Secretariat of the Hon’ble

President) had received a communication dt.

26.03.2016 addressed by the BJP to the Hon’ble

President, inter alia, submitting therein about the

then Hon’ble Chief Minister indulging in horse

trading in relation to MLAs both belonging to

Congress as well as BJP and that MLAs and their

family members are being threatened etc. This

communication was also part of the original

record submitted before the Hon’ble High Court

on 04.04.2016 alongwith the counter affidavit of

the Respondent No. 1 in the writ petition in the

High Court.

26.03.2016 That after the receipt of the above-mentioned

report / communication dt. 26.03.16 from the

Hon’ble Governor, a note for the Cabinet had

been prepared on 26.03.16. In the background of

various communications / reports received from

the Hon’ble Governor from 19.03.16 onwards, the

details about the recent political developments in

the State and also the aspects highlighted by the

Pen Drive indicating horse trading - had been

mentioned therein. Non-holding of the division of

vote on the Appropriation Bill 2016-17, the then

Hon’ble Chief Minister not acceding to the

repeated requests of the Hon’ble Governor for

securing vote of confidence expeditiously, in

order to win over support by allurements etc. one

BJP MLA Sh. B.L. Arya had been made the Vice

President of Ambedkar Jayanti Samaroh Samiti,

Sh. B.L. Arya of BJP remaining absent from the

assembly proceedings on 18.03.16 – were also

incorporated in the note for the Cabinet..

Subsequently, on 21.04.16, on behalf of

Respondent No. 1 in the writ petition (UOI), it had

been submitted before the Hon’ble Court that the

statement with regard to disqualification against

Sh. B.L. Arya being not dealt with evenly, was a

mistake of fact and would not be relevant. The

contents of the Pen Drive showing clearly the

then Chief Minister in the video and the

conversation for monetary and other allurements

was also incorporated in the Cabinet Note. The

aspect that the defeat of the Appropriation Bill

2016-17 on the floor of the House would have

had led to the fall of the Government, the claim of

the failed Appropriation Bill having been passed

by the voice vote etc. were also included in the

said Note. The relevant factors, which had

become available on record of the Govt. of India,

including that the failed Appropriation Bill had

been claimed to have been passed amounting to

continuation of Government not in accordance

with and contrary to the Constitution of India was

also mentioned.

The material becoming available to the

Government was also placed before the Cabinet

for approval of the recommendation to the

Hon’ble President for proclamation under Article

356 of the Constitution of India on 26.03.2016.

27.03.2016 On 26.03.16, the recommendation of the Cabinet

was forwarded to the Hon’ble President and had

been approved by the Hon’ble President on

27.03.16. On 27.03.16, at about 4.30 p.m. the

proclamation issued by the Hon’ble President

under Article 356 of the Constitution, was notified

vide a gazette notification. A copy of the gazette

notification of Presidential Proclamation dated 27-

03-2016 is annexed herewith as ANNEXURE -

P1. (Page ____ to ____)

Upon issuance of notification under

Article 356 on 27.03.2016, the Chief Secretary,

State of Uttarakhand had also issued a

notification on 27.03.2016 itself whereby the

entire Council of Ministers of the erstwhile State

Govt. were relieved from the Government.

However this order had not been filed with the

writ petition and also there was no challenge to

the same.

27.03.2016 The audio and video recordings which had

become available to the Govt. on 26.03.16 had

been forwarded to the CFSL on the same day.

On 27.03.16, the CFSL – later in the day and

after the decision on the Proclamation, had

forwarded its report dt. 27.03.16 certifying that the

examination of audio and video files had

disclosed that the audio recordings of the files are

in continuity and not containing any signs of

editing / tampering. It has further been found and

certified by the CFSL that video and audio file is

also in continuity and free from editing /

morphing.

28.03.2016 On 28.03.2016, the Hon’ble Governor had sent

another report to the Hon’ble President, inter alia,

stating that the voting on the Appropriation Bill did

not take place on 18.03.2016. The Appropriation

Bill was never sent by the Hon’ble Speaker to the

Hon’ble Governor for assent, before the issuance

of notification under Article 356 of the Constitution

of India on 27.03.2016. The Hon’ble Governor

has stated that the Appropriation Bill from the

Hon’ble Speaker was received only on the

28.03.2016 when the Assembly has already been

suspended vide notification dated 27.03.2016

issued under Article 356 of the Constitution of

India. The Hon’ble Governor has also stated that

it has not been possible for him to give assent to

the Bill. Having regard to the fact of closure of the

financial year on 31st March, there is almost an

emergency situation and accordingly taking

recourse to the procedure provided in Article 357

(1)(c), the Vote on Account for 4 months, i.e. from

1st April to 31st July 2016, was sent by the Hon’ble

Governor for authorization by the Hon’ble

President.

It becomes clear that since the Hon’ble

Speaker had also understood that any claim for

passing of the Appropriation Bill, when it had

failed would be void and a nullity, the said

Appropriation Bill had not been forwarded to the

Hon’ble Governor before the issuance of the

notification under Article 356 of the Constitution of

India. An Appropriation Bill, if it is legally and

validly passed, cannot be kept back and is

required to be forwarded immediately to the

Hon’ble Governor. In the present case, it is only

after the proclamation under Article 356 was

notified on 27.03.2016, the Hon’ble Governor has

stated in his report dated 28.03.2016 that he had

received the Appropriation Bill on 28.03.2016. It is

respectfully submitted that the claim - of passing

of the Appropriation Bill 2016-17, when it had

failed as having stood established by

documentary evidence, is void ab initio, nullity

having no existence in the eyes of law.

28.03.2016: The erstwhile Chief Minister of the State of

Uttarakhand, i.e. the Respondent No.1 herein

filed a Writ Petition bearing W.P. No.795 of 2016

[M/s] dated 28.03.2016 praying for, inter alia,

issuance of appropriate Writ quashing the

Proclamation dated 27.3.2016 issued under

Article 356 of the Constitution of India bearing F.

No.V/11013/2/2016-CSR.I and the consequent

Notification thereof. Respondent No.1 further

prayed for a direction for restoring the

Government of Indian National Congress (INC)

headed by Respondent No.1 along with his

Council of Ministers to office and revive and

reactivate the third Uttarakhand Legislative

Assembly.

Along with the aforesaid writ petition, the

Respondent No.1 also made an application for

stay of the proclamation dated 27.3.2016 and

also prayed for an appropriate direction in terms

of the order of the Hon'ble Supreme Court passed

in Jagdambika Pal (1999) 9 SCC 95 for holding a

floor test in order to prove the majority of the

Respondent No.1 on the Floor of the House.

It is pertinent to note that the said writ

petition along with application for interim relief /

stay was mentioned by the Counsel of

Respondent No.1 for urgent listing before the

Hon'ble Uttarakhand Court. The said writ petition

was accordingly taken up by the Hon’ble High

Court at about 12.30 pm on 28.3.2016 when the

counsels for the petitioner argued on the

application for interim stay / relief for the entire

day.

29.03.2016: On 29.03.2016, counsel for the Petitioner – Union

of India appeared before the Hon’ble High Court,

and it was categorically submitted on behalf of

Union of India that they would deserve an

opportunity to file its counter affidavit and had

further submitted that in view of the law laid

down by this Hon’ble Court,

i. even before issuing notice, opportunity was

required to be granted to the Central Government

to file an affidavit to demonstrate that no prima

facie case had been made out by the writ

petitioner.

ii. there was no permissibility for granting any

interim relief in respect of the said Proclamation

on the ground that as per the authoritative dicta

of the Hon'ble 9 Judges Bench of this Hon'ble

Court laid down in the case of SR Bommai vs UOI

1994 [3] SCC 1 it would be wholly impermissible

either to interdict the issuance of proclamation

and / or its operation till the final verdict on its

validity is pronounced.

It was further submitted that as per the

mandatory procedure laid down by this Hon’ble

Court, following the binding principle laid down in

S.R.Bommai (supra), vide orders dated 10.6.2005

and 25.7.2005 passed by this Hon’ble Court in

the matter of Rameshwar Prasad vs UOI [W.P.

(c) No.257/2005], it was incumbent upon the

Hon'ble High Court to, even before issuing notice

in the matter, require the Central Government to

file an affidavit to bring on record its objections

that the writ petitioner had failed to discharge the

burden of making out the very strong prima facie

case as required in a challenge to an Article 356

Proclamation. It was submitted that at that stage,

neither would the Court issue any notice before

granting opportunity to the Central Government

to file its counter affidavit, nor would it be

permissible to pass any interim order interdicting

the issuance and / or operation of the Presidential

Proclamation.

Written Submissions were also prepared

and submitted on behalf of the Union of India at

the time of hearing and submitted before the

Hon’ble High Court on 29.03.2016 (on account of

a typographical error, typed as dated 28.03.2016

instead of 29.03.2016).

29.03.2016: On 29th March 2016 itself, the Hon'ble

Uttarakhand High Court at Nainital disposed of

the application for interim relief / stay filed by

Respondent No.1 herein in Writ Petition No. 795

(M/S) of 2016 titled as Shri Harish Chandra Singh

Rawat Vs. Union of India & Anr. - and directing,

inter alia, that the Uttarakhand Legislative

Assembly be convened on 31.03.2016 for putting

the Vote of Confidence to floor test, where

disqualified MLAs would also participate and that

the result of the vote of confidence shall be kept

in a sealed cover, and that the votes of the

“disqualified Member” shall be kept separately -

thereby interdicting with the Presidential

Proclamation dated 27.03.2016 issued by the

Hon’ble President of India under Article 356 of

the Constitution of India, which is wholly

impermissible in view of the authoritative dicta

propounded by this Hon’ble Court in the case of

S.R. Bommai & Ors. Vs. Union of India & Ors.,

(1994) 3 SCC 1.

Copy of the order date 29.03.2016 passed by the

Ld. Single Judge of the Hon’ble Uttarakhand High

Court is annexed herewith as ANNEXURE – P2.

(Page ____ to ____). It was thereafter i.e.

subsequently when the opportunity for filing the

detailed counter affidavit had been granted that it

was found that gross misstatements, suppression

of material facts to mislead the Hon’ble Court for

securing an interim order, had been made by the

petitioner in the writ petition. The writ petition had

deserved dismissal at the threshold itself.

29.03.2016 In exercise of powers under Article 85(2)(a) of

the Constitution of India, the Hon’ble President

had been pleased to prorogue the Lok Sabha.

30.03.2016 In exercise of powers under Article 85(2)(a) of

the Constitution of India, the Hon’ble President

had been pleased to prorogue the Rajya Sabha.

30.03.2016 In the morning of 30.03.2016, an appeal, by and

on behalf of Union of India – being Special

Appeal No. 64 of 2016, was filed before the

Hon’ble High Court at Nainital, impugning the

order passed by the Ld. Single Judge on

29.03.2016.

Another appeal – being Special Appeal

No. 63 of 2016 was also filed by Smt. Indira

Hridayesh, impugning the Ld. Single Judge’s

order dated 29.03.2016.

These two Appeals were mentioned

before the Hon’ble the Chief Justice of

Uttarakhand High Court at 10.15 am for urgent

listing and hearing. Thereafter, the appeals were

taken up by the Ld. Division Bench of the Hon’ble

High Court at 12.00 pm.

After the counsel for all parties had been

heard by the Ld. Division Bench of the Hon’ble

High Court at considerable length, on a

suggestion made on behalf of Union of India

which was agreed to by all parties, the Ld.

Division Bench of the Hon’ble High Court passed

its order dt. 30.03.2016, inter alia, withdrawing

the writ petition (WPMS No. 795 of 2016) to itself

so that the matter may be finally disposed of and

the order dated 29.03.2016 passed by the Ld.

Single Judge was directed to be put in abeyance

till 07.04.2016.

Copy of the order date 30.03.2016

passed by the Hon’ble Uttarakhand High Court is

annexed herewith as ANNEXURE – P3. (Page

____ to ____).

31.03.2016 Having regard to the report / communication of

the Hon’ble Governor dt. 28.03.16, it was

observed that an emergent situation had arisen

since, in the absence of a validly passed

Appropriation Bill becoming law, the

administration of State of Uttarakhand would

have been unable to appropriate any funds from

the Consolidated Fund of the State with effect

from 01.04.2016. In order to take immediate

action for the purpose of timely compliance of the

financial business of the State of Uttarakhand,

the Uttarakhand Appropriation (Vote on Account)

Ordinance 2016 was promulgated by the Hon’ble

President of India on 31.03.2016. It was with a

view to prevent an economic crisis / chaos in the

State of Uttarakhand.

01.04.2016 Another Writ Petition – being W.P. 856 of 2016,

was filed by Respondent No.1 before the Hon’ble

Uttarakhand High Court, praying for, inter alia,

quashing of the promulgation of the Ordinance

dated 31.03.2016.

04.04.2016 The Hon’ble High Court had fixed a schedule for

filing of counter affidavit by the Respondents in

WP No. 795/2016 by 04.04.2016. In complete

compliance and in full cooperation with the

schedule fixed by the Hon’ble High Court, the

Respondent No. 1 had filed its counter affidavit

on 04.04.16 and had simultaneously – on the

same day, had tendered – in a sealed envelope,

the original file of the Govt. of India before the

Hon’ble High Court with the prayer that the

documents contained therein would not deserve

to be shared with the petitioner before the

Hon’ble High Court. The respondent had filed its

rejoinder affidavit on 05.04.16.

06.04.2016

And

07.04.2016

Detailed oral arguments were submitted on

behalf of Respondent No.1 (Petitioner before the

Hon’ble High Court) on 06.04.2016 and

07.04.2016. At about 3.30 p.m. on 7.4.2016, a

fresh application on behalf of Respondent No.1

was presented before the Hon’ble High Court with

the prayer that in the event, during the recess of

the Hon’ble High Court from 09.04.16 till

17.04.2016, a decision is taken to revoke the

Presidential Proclamation then the Hon’ble

Governor must invite only the petitioner in the

writ petition to prove majority and will not invite

BJP to form the govt.

The maintainability of this application was

vehemently opposed on behalf of Union of India,

inter alia, on the ground that the Hon’ble

Governor is not a party to the writ petition and in

any case no notice or direction could be issued

against the Hon’ble Governor and it was also

submitted that there would not be any

permissibility for the Hon’ble Court to pass any

order interjecting the constitutional authorities

and also the process of political democracy to

have its full action and full play in accordance

with the scheme of the Constitution.

However, when the matter was reaching

towards the end of the hearing on 07.04.16, a

statement had been made, by the ld. Attorney

General of India - on behalf of Union of India that

the Hon’ble High Court would be informed in case

any action becomes necessary to be taken by the

Govt. of India before 17.04.16 i.e. till the recess

of the Court and when the Court was to

commence the hearing of the arguments of the

ld. Attorney General of India on 18.04.16.

18.04.2016,

19.04.2016,

20.04.2016

Detailed oral arguments were submitted before

the Hon’ble High Court on behalf of Union of

India on 18.04.2016, 19.04.2016 and 20.04.2016.

It is submitted that the ld. Attorney General of

India had made his submissions on 18.04.16 and

19.04.16 and had taken leave of the Hon’ble

Court on the conclusion of his arguments. Till this

time of the ld. Attorney General of India leaving

the Court on 19.04.16, there was no mention of

any kind whatsoever on behalf of the petitioner

before the High Court, with regard to the

Statement made by the ld. Attorney General of

India on 07.04.16, as submitted above.

21.04.2016 On 21.04.2016, it was submitted on behalf of the

Union of India before the Hon’ble High Court that

the statement which had been made on

07.04.2016 (that if any action would be required

to be taken by the Union of India during the

recess of the Hon’ble High Court, the same would

be informed to the Hon’ble Court) – was to

operate only till the resumption of Court

proceedings on 18.04.16.

On 21.04.2016, vide its impugned

judgment [pronounced in open court], it has

been informed that the Hon’ble High Court has

been pleased to quash the Proclamation dated

27.03.2016 issued by the Hon’ble President of

India under Article 356 of the Constitution. The

Hon’ble High Court, inter alia, directed as under:-

i. Status quo as on 27.03.2016, i.e. the

date when the impugned Presidential

proclamation was issued – shall be maintained.

ii. Floor test shall be held in the

Uttarakhand Vidhan Sabha on 29.04.2016.

It is most respectfully submitted that the

impugned judgment of the Hon’ble High Court is

contrary to the settled principles of law laid down

by this Hon’ble Court and the Hon’ble High

Courts. The Hon’ble High Court has exceeded the

limited scope of judicial review of Presidential

proclamation issued under Article 356 of the

Constitution of India – as laid down in various

judicial pronouncements of this Hon’ble Court and

the Hon’ble High Courts. The impugned

judgment, being contrary to the settled principles

of law, deserves to be set aside by this Hon’ble

Court.

It is humbly submitted that the impugned

judgment of the Hon’ble High Court has been

pronounced in open Court and a copy thereof has

not become available. The petitioner has already

applied for a certified copy of the impugned

judgment. There is an imminent urgency to

challenge the legality and validity of the

impugned judgment by filing the present SLP. It

is due to the urgency in the present matter and

the paucity of time that the present Special Leave

Petition is being filed by the Petitioner without

annexing a copy of the impugned judgment,

which has not become available. The present

Special Leave Petition has been filed on the basis

of the telephonic conversation and

communication received from the counsel for the

Union of India, i.e. the Asst. Solicitor General for

India at the Hon’ble Uttarakhand High Court at

Nainital. Copy of the letter dated 21.04.2016 sent

by the Asst. Solicitor General for India is placed

alongwith the present Special Leave Petition.

The petitioner craves leave of this Hon’ble

Court for permission to file the present Special

Leave Petition without the impugned judgment.

The petitioner undertakes to place on record the

copy of the impugned judgment immediately on

its becoming available.

It is further submitted that the present

SLP is being filed only on the basis of the

communication dt. 21.04.2016 of the Assistant

Solicitor General of India, Uttarakhand and the

petitioner further seeks leave of this Hon’ble

Court to alter / modify / add / amend the present

SLP with additional and further grounds – upon

perusing of the impugned judgment passed by

the Hon’ble High Court.

22.04.2016: Hence, the present Special Leave Petition.


[Under Order XVI Rule 4(1)(a)]


SPECIAL LEAVE PETITION

(Under Article 136 of the Constitution of India)

(With prayer for Interim Relief)


POSITION OF PARTIES

In the Hon’ble In this Hon’ble High Court Court

BETWEEN:

Union of India Through Secretary Ministry of Home Affairs North Block New Delhi – 110001 Respondent No. 1 Petitioner

Versus,

1. Sh. Harish Chandra Singh Rawat s/o Late Rajendra Singh Rawat

r/o Bijapur Guest House Garhi Cantt Dehradun Dehradun – 248001 Petitioner Contesting

Respondent 2. State of Uttarakhand Through Chief Secretary Secretariat, 4 Subhash Road

Dehradun – 248001 Uttarakhand Respondent No. 2 Proforma Respondent

To The Hon’ble Chief Justice of India And His Companion Justices of the Supreme Court of India.

The Petitioner above named

MOST RESPECTFULLY SHOWETH:

1.1 The present Special Leave Petition is being filed against

the impugned final judgment dated 21.04.2016 passed by

the Hon'ble Uttarakhand High Court at Nainital in Writ

Petition No. 795 (M/S) of 2016 titled as Shri Harish

Chandra Singh Rawat Vs. Union of India & Anr.

1.2 Vide the impugned judgment dated 21.04.2016, the

Hon’ble High Court has erroneously allowed the writ

petition [being W.P. No. 795 of 2016] - and as informed,

the Hon’ble High Court has been pleased to, inter alia,

quash the Presidential Proclamation dated 27.03.2016

issued by the Hon’ble President of India under Article 356

of the Constitution of India.

1.3 It is humbly submitted that the impugned judgment of the

Hon’ble High Court has been pronounced in open Court

and a copy thereof has not become available. The

petitioner has already applied for a certified copy of the

impugned judgment. There is an imminent urgency to

challenge the legality and validity of the impugned

judgment by filing the present SLP. It is due to the

urgency in the present matter and the paucity of time that

the present Special Leave Petition is being filed by the

Petitioner without annexing a copy of the impugned

judgment, which has not become available. The present

Special Leave Petition has been filed on the basis of the

telephonic conversation and communication received from

the counsel for the Union of India, i.e. the Asst. Solicitor

General for India at the Hon’ble Uttarakhand High Court at

Nainital. Copy of the letter dated 21.04.2016 sent by the

Asst. Solicitor General for India has been placed alongwith

the present SLP.

The petitioner craves leave of this Hon’ble Court

for permission to file the present Special Leave Petition

without the impugned judgment. The petitioner

undertakes to place on record the copy of the impugned

judgment immediately on its becoming available.

It is further submitted that the present SLP is being

filed only on the basis of the telephonic conversation and

communication dt. 21.04.2016 of the Assistant Solicitor

General of India, Uttarakhand and the petitioner further

seeks leave of this Hon’ble Court to alter / modify / add /

amend the present SLP with additional and further

grounds – upon perusing of the impugned judgment

passed by the Hon’ble High Court.

It is most respectfully submitted that the impugned

judgment dt. 21.04.2016 is unsustainable in law, being

contrary to the principles of law laid down by this Hon’ble

Court and the Hon’ble High Courts, and therefore the

impugned judgment would deserve to be set aside by this

Hon’ble Court.

2. QUESTIONS OF LAW

2.1 Whether the High Court under Article 226 of the

Constitution of India could entertain any writ petition

wherein it had been demonstrated, ex facie, that the writ

petitioner had indulged in making false statements in the

writ petition and also suppression of material facts,

twisting of material facts only with a view to mislead the

Hon’ble Court and securing for itself an interim order ?


Constitution of India – having regard to the established

fact demonstrating, ex facie, that the writ petitioner had

indulged in making false statements in the writ petition

and also suppression of material facts, twisting of material

facts only with a view to mislead the Hon’ble Court and

securing for itself an interim order – was not obliged to

dismiss the writ petition at the threshold itself ?


Constitution of India was justified and permitted under the

constitutional scheme to judicially review the satisfaction

of the Council of Ministers and the Hon’ble President

arrived at on the basis of the relevant material - under

Article 356 of the Constitution of India ?


Constitution of India was justified and permitted under the

constitutional scheme to enter into the aspect of

sufficiency and authenticity of the material which was

placed before the Council of Minister and the Hon’ble

President for arriving at the satisfaction for imposition of

Proclamation under Article 356 of the Constitution of

India?

2.5 Whether the Hon’ble High Court has failed to appreciate

the limited scope of judicial review which is available in

relation to Presidential Proclamations issued under Article

356 of the Constitution of India – as laid down by this

Hon’ble Court in various judicial pronouncements?

2.6 Whether the impugned order passed by the Hon’ble High

Court is completely unsustainable in law, being contrary to

the law laid down by this Hon’ble Court in various

pronouncements, including the judgment of this Hon’ble

Court in S.R.Bommai (supra)?

3. DECLARATION IN TERMS OF RULE 4(2)

The Petitioner states that no other petition seeking leave

to Appeal has been filed by the Petitioner against the

impugned judgment before this Hon’ble Court.

4. DECLARATION IN TERMS OF RULE 6

The Annexures produced along with Special Leave Petition

are true copies of the records of the Courts below and

forms part of the record of the Courts below against

whose order the leave to appeal is sought for in this

Petition.

5 GROUNDS:

5.1 Because the impugned judgment passed by the Hon’ble

High Court is contrary to the principles of law laid down by

this Hon’ble Court in relation to exercise of Article 356 of

the Constitution of India. The impugned judgment

deserves to be set aside.

5.2 Because the Hon’ble High Court failed to appreciate that in

view of the settled principles of law laid down by this

Hon’ble Court, the scope of judicial review of Presidential

Proclamation issued under Article 356 is narrow and

limited – the Hon’ble Court can only examine the

relevancy of the material placed before the Hon’ble

President of India; the adequacy, sufficiency, truth or

correctness of the material cannot be looked into by the

Hon’ble Court.

5.3 Because the Hon’ble High Court failed to appreciate that

the Hon’ble Court cannot sit as an appellate forum over

the Proclamation which is issued by the Hon’ble President

of India on his subjective satisfaction based on the

material placed before him – including the report of the

Hon’ble Governor and also otherwise. It is most

respectfully submitted that it would be impermissible for

the Hon’ble Court to substitute its own satisfaction in place

of the satisfaction of the Hon’ble President of India.

5.4 Because the Hon’ble High Court erroneously held that

there is no material or circumstance of a single incident

which warranted the imposition of President’s Rule. It is

most respectfully submitted that the Proclamation dated

27.03.2016 has been issued by the Hon’ble President of

India after considering the various relevant material

placed before him – including, inter alia, the various

reports of the Hon’ble Governor, the fact that a failed

Appropriation Bill [against which division of vote was

demanded by the 35 MLAs constituting majority on the

floor of the House on 18.03.2016] is being claimed to

have been “passed”, the video/audio recordings of the

sitting Chief Minister in relation to discussions of

money/allurements being offered to MLAs, horse trading

etc. – and arriving at the satisfaction that the State

Government of Uttarakhand cannot be carried on in

accordance with the provisions of the Constitution of

India.


the allegations of horse trading against the then sitting

Hon’ble Chief Minister – apart from being substantiated by

the audio/video recordings in the pen drive received in the

office of the Hon’ble Governor [along with a transcript

thereof] were also corroborated by the communication

dated 26.03.2016 received in the office of the Hon’ble

Governor from the same dissident MLA in relation to

whom the discussion of offers of money / allurement had

been made in the said audio/video recordings. That the

contents of the pen drive containing the said audio/video

recordings had also been authenticated by CFSL on

27.03.2016.

5.6 Because the Hon’ble High Court, even after observing that

there was no sympathy for corruption and therefore the

Court shall not be precluded from taking action as per law

on the basis of the sting operation, proceeded to not only

grant indulgence under Article 226, but also grant relief to

the Writ Petitioner against whom the sting operation had

been produced in relation to allegations of horse trading

and discussing money/allurements to be offered to MLAs.

5.7 Because the Hon’ble High Court committed an error in not

appreciating the fact that willful, deliberate suppression of

material facts, untrue and incorrect statements designed

and engineered by the petitioner only with a view to

mislead the Hon’ble High Court – had been incorporated in

the Writ Petition. The Writ Petition had deserved to be

dismissed at the threshold itself.


failing of the Appropriation Bill would not mean falling of

the Government, as long as the Government does not

resign. It is most respectfully submitted that failing of an

Appropriation Bill is an expression of no confidence against

the Government, and allowing a Government which has

lost the confidence of the majority - to continue in office

for even a single day, would be an act in utter disregard of

the Constitution and would only lead to the conclusion

that the government in the State cannot be carried on in

accordance with the provisions of the Constitution of

India.


there is no challenge to the Appropriation Bill which has

been claimed to have been passed by voice vote by the

Hon’ble Speaker. Such a claim was void ab initio and an

absolute nullity.

5.10 Because the Hon’ble High Court has committed an error in

law by observing that the Hon’ble Governor had no

authority to send the memorandum demanding division of

vote to the Hon’ble Speaker. This observation of the

Hon’ble High Court is unsustainable in law, being contrary

to the settled principles laid down by this Hon’ble Court

and the Hon’ble High Courts.

5.11 Because the Hon’ble High Court erred in law in holding

that there is no material and further there is no

circumstance of a single incident, which warrant

invocation of Article 356 in the present case.

5.12 Because the Hon’ble High Court failed to apply the

principles of law laid down by this Hon’ble Court for

dealing with such cases where it is ex-facie apparent on

the face of the record that Respondent No.1 had indulged

in making, deliberate and willful false statements on oath

in the Writ Petition and the Writ Petition had been

founded on such false statements, only with a view to

mislead the Hon’ble High Court so as to steal an order in

his favour by Respondent No.1. It is an admitted position

that Respondent No.1 had made deliberate and willful

false and misleading statements in the Writ Petition,

including in para 16 to 23 thereof and had disentitled

himself from any indulgence and / or relief from the

Hon’ble High Court under its Extraordinary Writ

Jurisdiction under Article 226 of the Constitution of India.

5.13 Because the Hon’ble High Court failed to apply the law laid

down by this Hon’ble Court that if it is found that the writ

petitioner had not come with clean hands and had

indulged in making false statements on oath, not only the

Writ Petition filed by him had deserved dismissal at the

threshold itself, the act of making willful and deliberate

false statements in the Writ Petition with a view to steal

an order from the Hon’ble High Court – would also

constitute causing obstruction in the administration of

justice.


Respondent No.1 had willfully misled the Hon’ble High

Court by stating on oath in the Writ Petition that – there

were never any demands for Division of Votes on the

Appropriation Bill before the passing of the said

Appropriation Bill in the Assembly on 18.3.2016. The

entire Writ Petition is founded on this statement and the

entire projection in the Writ Petition by Respondent No.1

was to the effect that when the Appropriation Bill was

taken up by the Assembly on 18.3.2016, neither before

nor during the consideration of the Appropriation Bill for

its passing – there was any demand for Division of Vote.

This singular plea of the petitioner in the writ petition

being the foundation of the entire writ petition, was belied

by Respondent No.1 himself, after it was admitted in the

arguments before the Hon’ble High Court that even as per

the case of the writ petitioner the demand for Division of

Vote had been made by 27 MLAs (as per the Union of

India it was 35 MLAs) not only before but also at the time

when the Appropriation Bill was taken up in the House at

about 7.30 pm on 18.3.2016 and the said Division of Vote

demanded by 35 Members, was not carried out by the

Hon’ble Speaker. In the light of the admission made on

behalf of Respondent No.1 herein (petitioner before the

High Court) during the final arguments on 20.4.2016 that

according to Respondent No.1, 27 MLAs had made the

demand for Division at the time when the Appropriation

Bill was taken up before the Assembly, the Writ Petition

had deserved to be dismissed by the Hon’ble High Court at

the threshold itself.

5.15 Because the High Court failed to appreciate that

Respondent No.1 was physically present in the Assembly

on 18.3.2016. The demand for Division of Vote by the

Members had been made at 7.30 PM when the

Appropriation Bill was taken up and Respondent No.1 was

physically present in the House. It has also been admitted

that the demand by 27 Members of the BJP at 10.30 AM

on 18.3.2016 for Division of Vote of Appropriation Bill had

also been received by the Hon’ble Speaker at 11.10 am on

18.3.2016. Despite Respondent No.1 being fully conscious

and aware about these true facts, yet with a view to

mislead the Hon’ble Court and on such misleading of the

Hon’ble High Court, he was able to secure the interim

order passed on 29.3.2016 that the Writ Petition had

deserved dismissal at the threshold itself.

5.16 Because the Respondent No.1 had demonstrated beyond

any doubt on the record of the writ proceedings that he

had made a number of untrue statements in the Writ

Petition. In para 4 of the Writ Petition it had been stated

that the Hon’ble Governor had fixed the date of 28.3.2016

for the meeting of the House. This statement made by

the petitioner in the Writ Petition was false to his

knowledge inasmuch as the Hon’ble Speaker on

18.3.2016, at the time of the alleged conclusion of the

proceedings at 7.43 pm, had adjourned the session of the

House to 28.3.2016 and when the session of the House

was to continue till 21.3.2016.


Respondent No.1 had changed his position from the date

of filing of the Writ Petition till the date of conclusion of

the arguments on 20.4.2016. The stand of Respondent

No.1 has remained inconsistent, apparently, Respondent

No.1 was fully conscious and aware that it was obligatory

on the part of the Hon’ble Speaker to carry out the

Division of Vote on 18.3.2016 and the Appropriation Bill

had not been passed. In the facts and circumstances of

the present case, the requirement of Division of Vote

under Rule 296 of the Uttarakhand Assembly Procedure

Rules – was mandatory. Admittedly, the Hon’ble Speaker

did not follow the mandatory Rule 296 – which provides

for Division of Vote on a demand being made by a single

MLA. It had been submitted on behalf of Union of India

that 35 MLAs (out of 68 MLAs present in the House on

18.03.2016, including the Hon’ble Speaker) had demanded

Division of Vote when the Appropriation Bill was taken up

on 18.3.2016.


Rule 185 of the said Rules had no applicability in the

present case. Further, Rule 185 does not control in any

manner whatsoever, the operation of Rule 296 and

further, admittedly, there was no suspension order by the

Hon’ble Speaker for the operation of the requirement of

Rule 296, meaning thereby that the carrying out of the

Division of Vote was not only mandatory but it was

absolutely imperative on the part of the Speaker.


the act of the Hon’ble Governor, requiring his Secretary for

forwarding the Memorandum submitted by 27 MLAs of the

BJP at 10.30 AM on 18.3.2016 [demanding division of vote

on the Appropriation Bill 2016-17] – to the Hon’ble

Speaker was, in fact, a message under Article 175 of the

Constitution of India, thereby making it obligatory on the

part of the Hon’ble Speaker to carry out the Division of

Vote on the Appropriation Bill.


non-mentioning of the provision of Article 175 on the

covering letter of 18.3.2016 of the Secretary to the

Hon’ble Governor was not irregularity or omission and

especially when the Hon’ble Governor, on his arriving back

to his office at 1.00 pm in the afternoon of 18.3.2016 and

had endorsed the carrying out of his direction by his

Secretary on 18.3.2016. It is most humbly submitted that

it is the settled position of law, as laid down by this

Hon’ble Court in various judicial pronouncements, that

non-mentioning of a provision under which power has

been exercised – would not make any difference so long

as the power can be traced to any provision under law.


even otherwise, i.e., without prejudice to the submission

that forwarding letter dated 18.3.2016 by the Secretary of

the Hon’ble Governor on the direction of Governor, was a

message under Article 175 of the Constitution of India,

even otherwise the carryout out of the Division of Vote on

the Appropriation Bill – in the facts and circumstances of

the present case, was an absolute imperative even on the

correction operation and implementation of the provision

of Rule 296. Admittedly, there was no suspension order

with regard to the operation of Rule 296 which had been

passed by the Hon’ble Speaker, inasmuch as he was

aware that in view of the facts and circumstances, there

was neither any occasion nor any permissibility for him to

pass any such suspension order.


the demand for the Division of Vote at 10.30 AM by 27

Members of the BJP, and at 7.30 PM in the Assembly by

35 members of the Assembly at the time when the

Appropriation Bill was taken up, was itself an expression of

No Confidence in the Government and the Appropriation

Bill, being a Money Bill – had failed. The State

Government in power had stood rendered as a minority

having no legitimacy or entitlement of any kind

whatsoever, to continue to remain in place. It had

become not possible to carry out functioning of the

Government in accordance with the Constitution of India

and invocation of Article 356, in the facts and

circumstances of the present case, on 27.3.2016 was

entirely valid, legal and constitutional.


the relevant material was available before the Council of

Ministers and before the Hon’ble President. In accordance

with the principles of law laid down by this Hon’ble Court,

the limited judicial scrutiny was to come to an end when

the counter affidavit filed on behalf of Respondent No. 1,

submitted on 4.4.2016 along with original file disclosing

therein the relevant material considered in the process of

invoking jurisdiction under Article 356 of the Constitution

of India.

5.24 Because the Hon’ble High Court failed to appreciate that it

was neither permissible nor legal, either for the petitioner

or the Hon’ble Speaker, to agitate and claim that in

relation to proceedings in the House, even when they are

illegal and unconstitutional, the decision of the Hon’ble

Speaker is supreme and there is absolute immunity from

any judicial review / interference by the Hon’ble Court

under Article 212 of the Constitution of India.


the provision of Article 212 had no applicability

whatsoever in the facts and circumstances of the present

case and the deliberate inaction on the part of the Hon’ble

Speaker to not to carry out the Division of Vote on the

Appropriation Bill on 18.3.2016 had definitely resulted in

the illegal continuation of a minority Government in

power, thereby fulfilling the requirement of Article 356 of

the Constitution of India, in the facts and circumstances of

the present case.


ample material was available on the record which had

demonstrated that the Hon’ble Speaker, along with one of

the BJP MLAs, namely, Shri Bhim Lal Arya, had been won

over by the Congress Party. The inadvertent mistake of

fact which stood submitted before the Hon’ble High Court

on behalf of Union of India that the Hon’ble Speaker was

partisan in not dealing with the disqualification petition

filed against the BJP MLAs (clarified before the Hon’ble

High Court on 21.04.16), the said BJP MLA had remained

absent from the House on 18.3.2016 and the inadvertent

mistake on the part of Union of India, even when required

to be considered as irrelevant, could not have cast any

doubt on the relevance of the entire material, which was

available for consideration before the Council of Ministers

and before the Hon’ble President.


even as per the writ petitioner, there were 9 rebel

Congress MLAs even before the Appropriation Bill was

taken up in the House, on 18.03.16, further that 35 MLAs

had signed a joint Memorandum at 11.30 PM on

18.3.2016 submitted to the Hon’ble Governor to the effect

that they had demanded Division of Vote on the floor of

the House inside the Assembly when the Appropriation Bill

was taken up, and that Division of Vote had not been

carried out.


neither was there any Division of Vote on the

Appropriation Bill on 18.3.2016, nor was there any show

of hands and, perhaps, nor any voice vote and the

Appropriation Bill, being a Money Bill, had failed – and

thereby the erstwhile Government had lost the confidence

of the majority.


the demand of Division on the Appropriation Bill by 35

Members inside the Assembly at 7.30 pm was an admitted

position on the writing on the contents of the Writ Petition

itself. The Writ Petitioner himself had submitted in the

Writ Petition that there were 27 BJP MLAs and 9 rebel

Congress MLAs, even according to the writ petitioner, the

rebellion by 9 Congress MLAs had started much before the

taking up of the Appropriation Bill – though the case of

the Petitioner herein is that 35 MLAs had demanded

Division of Vote inside the House, Respondent No.1 made

a deliberate and willful false statement, repeatedly, in the

Writ Petition including in para 16 thereof, that there was

no demand of Division of Vote on the Appropriation Bill

before the Appropriation Bill was passed on 18.3.2016.

During the oral hearing on 20.4.2016 it was admitted on

behalf of the petitioner that 27 BJP MLAs had demanded

Division of vote inside the House. This admission itself, in

the respectful submission of the petitioner herein, was

sufficient for the Hon’ble High Court to dismiss the Writ

Petition at the threshold itself, in applying the principles of

law laid down by this Hon’ble Court.


the non-taking of the Division of Vote on the Appropriation

Bill by the Hon’ble speaker on 18.3.2016 was entirely

unconstitutional and the High Court ought to have held

the same to be unconstitutional.


since the Appropriation Bill had failed, it was not

forwarded to the Hon’ble Governor till 28.3.2016 when the

Proclamation under Article 356 had also stood issued on

27.3.2016.

5.32 Because the Hon’ble High Court failed to appreciate the

settled principles of law laid down by this Hon’ble Court

and the observations with reference to the extent of

Judicial Review of Presidential Proclamation under Article

356 of the Constitution of India – in the impugned

judgment are not only erroneous but are also

unsustainable.

5.33 Because the Hon’ble High Court failed to appreciate the

settled principles of law laid down by this Hon’ble Court

with regard to illegal acts of a Speaker of an Assembly and

no immunity whatsoever available under Article 212 of the

Constitution of India. The observations made by the

Hon’ble High Court in the impugned judgment in this

regard are not only erroneous but are also unsustainable.


even if it appears that some material placed for

consideration before the Council of Ministers and the

Hon’ble President is either erroneous or mistaken the

same would have no bearing whatsoever on the validity of

the Proclamation if there exists some material on record

relevant for arriving at the satisfaction for imposition of

Presidential Rule under Article 356 of the Constitution of

India. The observations in this regard made by the Hon’ble

High Court are not only erroneous but are also

unsustainable.

5.35 Because the impugned judgment has resulted in serious

miscarriage of justice. It is contrary to the principles

governing jurisdiction of the Hon’ble High Court in relation

to challenge to any Proclamation under Article 356 of the

Constitution of India. The impugned judgment deserves to

be set aside and quashed by the orders of this Hon’ble

Court.

5.36 Because nothing done in continuation of the impugned

judgment, would in any case either be permissible nor

would it be sustainable in the light of the binding

principles of law laid down by this Hon’ble Court.

5.37 Because the High Court failed to appreciate that even

when the individual demand for grants had already stood

voted, it was still an absolute imperative that the

Appropriation Bill is taken up for voting for passing the

same to become a law without which no fund from the

Consolidate Fund of the State could at all become

available for discharging the functions by the State.

Passing of the Appropriation Bill is neither a formality nor

any procedural requirement, however, an absolute

constitutional imperative in the absence whereof the

Appropriation Bill does not become a law and is

meaningless / inoperative for making any drawl of funds

from the Consolidated Fund of the State.

5.38 The present Special Leave to Appeal has been prepared in

an extreme urgency. At the time of preparation of the

present Special Leave to Appeal, the impugned judgment

had not become available and the grounds had been

prepared on the operative portion orally pronounced in the

Court, and therefore the Petitioner craves leave of this

Hon’ble Court to add / modify further grounds in the

present appeal towards the challenge to the impugned

judgment.

5.39 It is humbly submitted that the impugned judgment of the

Hon’ble High Court has been pronounced in open Court

and a copy thereof has not become available. The

petitioner has already applied for a certified copy of the

impugned judgment. There is an imminent urgency to

challenge the legality and validity of the impugned

judgment by filing the present SLP. It is due to the

urgency in the present matter and the paucity of time that

the present Special Leave Petition is being filed by the

Petitioner without annexing a copy of the impugned

judgment, which has not become available. The present

Special Leave Petition has been filed on the basis of the

telephonic conversation and communication received from

the counsel for the Union of India, i.e. the Asst. Solicitor

General for India at the Hon’ble Uttarakhand High Court at

Nainital. Copy of the letter dated 21.04.2016 sent by the

Asst. Solicitor General for India is placed with the present

SLP.

5.40 The petitioner craves leave of this Hon’ble Court for

permission to file the present Special Leave Petition

without the impugned judgment. The petitioner

undertakes to place on record the copy of the impugned

judgment immediately on its becoming available.

5.41 It is further submitted that the present SLP is being filed

only on the basis of the telephonic conversation and

communication dt. 21.04.2016 of the Assistant Solicitor

General of India, Uttarakhand and the petitioner further

seeks leave of this Hon’ble Court to alter / modify / add /

amend the present SLP with additional and further

grounds – upon perusing of the impugned judgment

passed by the Hon’ble High Court.

6. GROUNDS FOR INTERIM RELIEF:

6.1 Because the Petitioner has a good prima facie case on

merits and the balance of convenience also lies in the

favor of the Petitioner.

6.2 Because gross injustice and irreparable loss is likely to be

caused to the Petitioner if the impugned judgment of the

Hon’ble High Court is not stayed.

6.3 Because an oral request was made before the Hon’ble

High Court on 21.04.16 for stay of the impugned

judgment till the filing of the present SLP but the same

was turned down by the Hon’ble High Court.

7. MAIN PRAYER:

In the circumstances, it is most respectfully prayed that

your lordships may graciously be pleased to:

(i) Grant leave to appeal against the impugned

judgment dated 21.04.2016 passed by the

Hon’ble High Court of Uttarakhand at Nainital.

(ii) And/or pass such other further orders, as this

Hon’ble Court may deem fit and proper in the

facts and circumstances of this case.

8. PRAYER FOR INTERIM RELIEF:

(i) Pass an ex-parte ad-interim order staying the

operation and effect of the impugned judgment

dated 21.04.2016 passed by the Hon’ble High Court

of Uttarakhand at Nainital till the pendency and final

disposal of the present Special Leave Petition;

(ii) And/or pass such other further orders, as this

Hon’ble Court may deem fit and proper in the facts

and circumstances of this case.

And for this act of kindness the petitioner as in duty bound

shall ever pray.

FILED BY

(Anil Katiyar) Advocate for the Petitioner

Drawn On: 21.04.2016

Filed On: 22.04.2016




(Arising from the Final Judgment dated 21.04.2016 passed by

the Hon’ble Uttarakhand High Court at Nainital in Writ Petition

(M/S) No. 795/2016)

IN THE MATTER OF:

UNION OF INDIA …PETITIONER

Versus,

SH. HARISH CHANDRA SINGH RAWAT & ANR. …RESPONDENTS

CERTIFICATE

Certified that the Special Leave Petition is confined only to

the Pleadings before the Hon’ble Uttarakhand High Court whose

orders are challenged and the other documents relied upon in

those proceedings and no additional facts, documents or

grounds have been taken herein. It is further certified that the

copies of the documents/annexures attached to the Special

Leave Petition are necessary to answer the question of law

raised in the Petition or to make out grounds urged in the

Special leave Petition for consideration of this Hon’ble Court.

The certificate is given by the petitioner whose affidavit is filed

in support of the special Leave Petition.

(Anil Katiyar)

Advocate for the Petitioner

Filed On: 22.04.2016

Documents

Uttarakhand President Rule