SRI RAJENDRA SINGH RANA AND ORS. v. SWAMI PRASAD MAURY A AND ORS.

~ demonstrate his strength. In paragraph 11 in Naik's case, it is said that A an inference can be drawn from the conduct of a member that he was voluntarily given up his membership. That inference has to be drawn in regard to the conduct of 27.08.2003 most certainly."

He has also observed while considering whether the Speaker had to consider paragraph 2 of the Tenth Schedule first or he is to consider paragraph 3 first. B "The order of consideration will yield diametrically opposite results. Even, in this case, ifhe had considered paragraph 2 first, he might well t -c have had to disqualify all 37, as they did not walk away at one and the same time. But because he considered paragraph 3 first, because he though as a matter of law that the requirements of paragraph 3 c being satisfied, it obviated the necessity of considering paragraph 2 separately for any part of the whole group, he gave a decision for the respondents."

The learned Chief Justice has further held: D "Even if 37 out of 109 Bahujan MLAs have walked out, only the _.\ legislature party is split. This is defined in paragraph I (b ), which has been set out earlier; but in this <.:ase of ours, where is the proof before i the Speaker of the split in the original party? Were any minutes tendered before the Speaker showing that so many lacs or millions of the original Bahujan Dal decided to split? A claim that on 26.08.2003, E there were some party members along with the MLAs at the Darulshafa · in Lucknow is not enough; it is too inadequate. The Bahujan Dal is too big; its party membership is too numerous for it to suffer a split in such a comparatively minor meeting, even if it took place on 26.8.2003. There was no intimation that one group was going to split; F i even the name Loktantrik Bahujan Dal found its place for the first time on paper on 6.9.2003; there were no Newspaper reports; there were no statements of dissatisfied party members; the core of the Bahujan Dal was not asked to "rectify" its behaviour or else. The threat of a split was not even made imminent; nothing like this happened; only one evening, it is claimed, the Bahujan Dal had split and a faction had G arisen. This is so cursory as not to class as a split in the original party _,...,_, at all. Look at the split in Congress-0, which resulted in Congress-I coming into being; Looking at the split in Congress-I in West Bengal and the resulting Trinamul Congress coming into being, was there anything like that here? The answer is a big no." H

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A 5 I. One of the learned Judges who constitutes the majority has held:

.," ..... but the court cannot certainly close its eyes to the fact that had the application for disqualification dated 4.9.2003 been treated with the same promptitude and constitutionally required urgency, the 13 MLAs whose Membership in question was hanging in the balance B ,could not have been counted along with 24 others, who joined hands to conjure up the minimum required member.. .. "

52Copy pinpoint52. As we have indicated, nothing is produced to show that there was a split in the original political party on 26.8.2003 as belatedly put forward or put forward at a later point of time. But still, the plea was of a split on C 26.8.2003. On the materials, the only possible inference in the circumstances of the case, is that it has not been proved, even prima facie, by the MLAs sought to be disqualified that there was any split in the original political party on 26.8.2003 as claimed by them. The necessary consequence would be that the 24 members, who later joined the 13, could not also establish a split in D the original political party as having taken place on 26.8.2003. In fact even a split involving 37 MLAs on 26.8.2003 is not established. That was also the inference rightly drawn by the learned Chief Justice in the judgment appealed against.

53Copy pinpoint53. In view of our conclusion that it is necessary not only to show that E 37 MLAs had separated but it is also necessary to show that there was a split in the original political party, the above finding necessarily leads to the conclusion that the 13 MLAs sought to be disqualified had not established a defence or answer to the charge of defection under paragraph 2 on the basis of paragraph 3 of t~e Tenth Schedule. The 13 MLAs, therefore, stand F disqualified with effect from 27.8.2003. The very giving of a letter to the Goveinor requesting him to call the leader of the opposition party to form a Government by them itself would amount to their voluntarily giving up the membership of their original political party within the meaning of paragraph 2 of the Tenth Schedule. If so, the conclusion is irresistible that the 13 members of BSP who met the Governor on 27.8.2003 who are respondent G Nos.2,3,4,5,6,9,10, 14, 16, 19,20,21 and.37, in the writ petition filed by Maurya, stand disqualified in terms of Article 191 (2) of the Constitution read with paragraph 2 of the Tenth Schedule thereof, with effect from 27.8.2003. If so, the appeal filed by the writ petitioner has to be allowed even while dismissing the appeals filed by the 37 MLAs, by modifying the decision of the majority of the Division Bench. Hence the writ petition filed in the High Court, will H

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stand allowed with a declaration that the J3 members who met the Governor A on 27.8.2003, being respondent numbers 2, 3, 4, 5, 6, 9, JO, 14, 16, 19, 20, 21 and 37 in the writ petition, stand disqualified from the Uttar Pradesh Legislative Assembly with effect from 27.8.2003.

54Copy pinpoint54. The appeals filed by the 37 MLAs are dismissed and the appeal filed by the writ petitioner is allowed in the above manner. The disqualified members B will pay the costs of the writ petitioner, here and in the High Court.

RP. C.A. No. 769/2007 allowed.

C.A. 765, 766,767,768 of2007 and C.A. No. 770, 771 of2007 dismissed.