( 1 ) I have had the privilege of going through the judgement of Honble the chief Justice expressing his views elaborately and illustratively on the issues involved but find myself unable with great respect, to subscribe with the analysis done and findings arrived at and consequently with the outcome of the judgement. ( 2 ) I have also gone through the judgement prepared by Honble Jagdish bhalla, J and I find myself in agreement with the reasoning given by him and the conclusions arrived at and while supporting his view, I pronounce on the issues involved and the controversy raised, as under: ( 3 ) UNFRET and unmoved by the electorates concern and the peoples cry that the member that they elect should adhere to the policies and programmes as propagated through their partys manifesto during elections and that they voted for a party in whose political, economic and social philosophy they have faith, the elected Members change their allegiance and loyalty very often, and they go in the camp of a rival political party completely ignoring the wish of their own constituency members. May be at times there is honest and ideological dissension leading to defection in a large scale and at times it may only be lure of office or money or other consideration which would prompt the elected member to part ways with his original political party from which he was elected and to support the other party. Voluntarily leaving the original political party from which the member has been elected to any House of parliament or Assembly is known as floor crossing i. e. defection. If an elected member crosses floor with less than 1/3rd members of his legislature party in the House, he or all such members would incur disqualification and would stand disqualified from being the members of the Legislative Assembly for the remaining term of the House and can only come back on a fresh vote but in case a member crosses the floor with at least 1/3rd members of his legislature party or more by following the prescription given in Para 3 of the tenth Schedule, the disqualification of defection would not stick to him. ( 4 ) IN the case of Kihoto Hollohan v. Zachillhu and others,1992 Supp (2)SCC 651, while deciding the constitutional validity of the Tenth Schedule introduced by the Constitution (Fifty Second Amendment) Act, 1985, the supreme Court took note of certain extracts of the report of the Committee known as "committee on Defections". In its report dated January 7,1969, after giving the figures of defections in the recent past, the Committee observed " The other disturbing features of this phenomenon were: multiple acts of defections by the same person or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature or explanations by the individual defectors, indifference on the part of the defectors to political proprieties, constituency preference or public opinion and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections. "the Supreme Court also took note of the Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-second Amendment) Act, 1985, which said "the evil of the political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles, which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the government intended to introduce in the current session of Parliament an anti-defection bill. This Bill is meant for outlawing defection and fulfilling the above assurance. " ( 5 ) THE Supreme Court observed:"on the one hand there is the real and imminent threat to the very fabric of the Indian democracy posed by certain levels of political behaviour conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tends to degrade the tone of political life and, and in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental constitutional processes to combat that evil. "and"on the other hand, there are, as in all political and economic experimentations, certain side effects and all out which might affect and hurt even honest dissenters and conscientious objectors. These are the usual plus and minus of all areas of experimental legislation. There is the legislative determination through experimental constitutional processes to combat that evil. "and"on the other hand, there are, as in all political and economic experimentations, certain side effects and all out which might affect and hurt even honest dissenters and conscientious objectors. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a hazy gray line and it is the courts duty to identify, "darken and deepen" the demarcating line of constitutionality- a task in which some element of Judges own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications" ( 6 ) IT was found that the Paragraph 2 of the Tenth Schedule to the constitution is valid. Its provisions do not suffer from the vice of subverting the democratic rights of the elected Members of Parliament and the legislatures of the States. It was also found that the provisions are salutary and are intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions, which in reality have fallen into a morass of political and personal degradation. Court should defer to this legislative wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. The case in hand, once again cast a duty upon the court to judicially scrutinise about the events which would be more fully described hereinafter so as to pronounce as to whether the floor crossing by 40 (37+3) members belonging to the Bahujan Samaj Party (BSP) made them disqualified for being the members of the Legislative Assembly or that it was an honest dissension and the disqualification would not attach to them in view of their claim of the provisions of Paragraph 3 and 4 of the Tenth Schedule. Before proceeding with the merits of the case, it would be appropriate to put straightaway on record that an application for amendment of the writ petition was pending undisposed when the matter came before this Full bench. The amended writ petition, counter affidavit to the writ petition, as amended, as well as rejoinder affidavit have already been taken on record under the oral orders of the court that the amendment would stand allowed. The parties were given to understand that the hearing may not be stopped and they may argue taking that amendment stands allowed. The amendment in fact incorporates subsequent events which had taken place after filing of the writ petition and also subsequent orders passed by the Speaker, who has dismissed the disqualification petitions as having become infructuous, by all means. Learned counsel for the respondents Sri Shanti Bhushan and Sri Rakesh dwivedi though initially stated that they seriously oppose the amendment but in fact did not raise any such objection during the course of arguments and as a matter of fact, all the parties have proceeded with their case on the amended writ petition. The parties thus have proceeded to argue the matter taking the amendment having been allowed. Accordingly the formal orders on amendment application are hereby passed. The amendment is and stands allowed. ( 7 ) THE short relevant synopsis of the facts is that after the elections of the u. P. Legislative Assembly held sometimes in the year 2002, Sushri Mayawati, leader of Bahujan Samaj Party (BSP), was sworn in as Chief Minister of the state but within a span of only approximately 15 months of her tenure as chief Minister, a decision was taken in the Cabinet headed by her to make recommendation to the Governor to dissolve the U. P. Legislative Assembly, which decision was announced by the then Chief Minister and the leader of the BSP. ( 8 ) AS per pleadings of the petitioner, on 25. 8. 03 the Cabinet led by Sushri mayawati decided to recommend to the Governor for the dissolution of the house. This decision was made public by her in All India Party Workers meeting of the BSP on 25. 8. 03 itself. The very next day at 10:45 a. m. Sri mulayam Singh Yadav, leader of the Samajwadi Party, laid his claim before the Governor for forming a Government. This decision was made public by her in All India Party Workers meeting of the BSP on 25. 8. 03 itself. The very next day at 10:45 a. m. Sri mulayam Singh Yadav, leader of the Samajwadi Party, laid his claim before the Governor for forming a Government. Sushri Mayawati submitted her resignation at 1:00 p. m. on 26. 8. 03. A meeting on 26. 8. 2003 of 110 Members of Legislative Assembly of BSP was held at 5, Kalidas Marg, Lucknow at 7. 00 p. m. and the members of the BSP were directed not to do anything which is against the party interest. It may be brought on record that there were in all 109 members belonging to the said party in the House. According to the petitioners, all 109 MLAs attended the said meeting and there was no dissension. On 27. 8. 03, 13 MLAs of the BSP in two separate groups, namely, (8+5) met the Governor of the State alongwith Sri Shiv Pal Singh Yadav, general Secretary of the Samajwadi Party (SP) and submitted a letter to the governor to invite Sri Mulayam Singh Yadav to form the Government. The letter said that the MLAs who have signed the letter, request the Governor for inviting Sri Mulayam Singh Yadav to form the Government as the public of uttar Pradesh does not wish to have the elections nor the President rule. The petitioners treating it to be a case of leaving the original political party voluntarily by these 13 MLAs moved petitions of disqualification under paragraph 2 (1) (a) of the Tenth Schedule on 4. 9. 03 before the Speaker. On 5. 9. 03 they filed a caveat before the Speaker saying that if the aforesaid 13 mlas or any other MLA comes for recognition of their group, the Speaker may proceed only after giving hearing to the petitioners as no split has taken place in the original political party i. e. BSP. On 6. 9. 03 at 5. 45 p. m. 37 MLAs, namely, 13 aforesaid MLAs plus 24 other MLAs moved an application jointly saying that a meeting on 26. 8. On 6. 9. 03 at 5. 45 p. m. 37 MLAs, namely, 13 aforesaid MLAs plus 24 other MLAs moved an application jointly saying that a meeting on 26. 8. 03 of the members, office bearers and MLAs of the BSP was held, wherein all persons present unanimously decided that the BSP be divided, namely, a split be caused and a new faction under the leadership of Rajendra Singh Rana, mla be formed, which be named as Loktantrik Bahujan Dal (LBD ). The letter further stated that the said 37 MLAs have formed a group which represents the aforesaid faction and since the strength of the group is more than 1/3rd of the total members of the legislature party, the Loktantrik Bahujan dal be recognised as a separate group and provision for its sitting in the House be made. Another application was also moved on the same date by the aforesaid 37 MLAs saying that Loktantrik Bahujan Dal has taken a decision to merge in Samajwadi Party, and the said merger be recognised. ( 9 ) THE petitioner was though given an oral hearing but was not afforded any opportunity to file a reply or to adduce evidence to show that no split has taken place in the original political party nor a group of required strength was formed on 26. 8. 03 and that in the absence of any proof being brought by the 37 MLAs, a split in the original political party cannot be presumed. It appears to have been orally argued before the Speaker on behalf of the petitioner that the disqualification application having already been moved against 13 MLAs, who have already incurred disqualification, as their conduct of approaching the Governor and making the request for inviting Sri Mulayam Singh Yadav to form the Government amounts to an act of leaving the original political party voluntarily and, therefore, they cannot be treated to be included in the group of 37 nor such a group would be a valid formation of a group. It was also urged that the disqualification petitions be decided first. It was also urged that the disqualification petitions be decided first. The Speaker on that very date within a span of three hours or so, passed the order on the application moved by 37 MLAs giving them benefit of para 3 of the Tenth Schedule holding that since these MLAs have made a claim that there has been split in the original political party and that they are in the required strength of not less than 1/3rd members of the Legislature Party, therefore, in accordance with the pronouncement made by the Apex Court in the case of Ravi S. Naik (1994 Supp (2) SCC 641), gave recognition to the group, Loktantrik Bahujan Dal in the House and arrangement for their seating be made. ( 10 ) ON the other application moved by these MLAs of the same date the speaker also recognised the merger of the Loktantrik Bahujan Dal into samajwadi Party. However, the claim of the 37 MLAs that there were six more MLAs asking for merger was not accepted, as they were not present but later on an application was moved again on 8. 9. 03 by six aforesaid MLAs for treating them as member of the Samajwadi Party but this time also since only 3 MLAs were present in person therefore, the Speaker accepted the request of only 3 MLAs and not of those, who were not present and thus the Speaker allowed the merger of 40 MLAs into the Samajwadi Party. ( 11 ) IT is also the admitted case of the parties, that on 6. 9. 03, only operative portion of the orders was pronounced, but full order was made available only on 9. 9. 03, i. e. after the motion of confidence in favour of Sri Mulayam Singh yadav was successfully carried through on 8. 9. 03. ( 12 ) ON the aforesaid orders being passed by the Speaker, the petitioner preferred the present writ petition challenging the said orders on various grounds including the action of the Speaker of not dealing with the petitions of disqualification moved by the petitioner and the manner in which the private respondents applications were allowed apart from the legal challenge on the applicability and scope of the various provisions of the Tenth Schedule and the factual aspects as brought forward by the parties. It appears that the Speaker had issued notices on the disqualification petitions moved by the petitioner against 13 MLAs as late as on 18. 9. 03 and on 14. 1103 on the request of the 13 MLAs, the hearing on those disqualification petitions was deferred till the disposal of the present writ petition. The two MLAs, namely, Rajendra Singh Rana and Virendra Singh bundela on 15th January,05 moved two separate petitions before the Speaker for expediting the hearing on the disqualification petitions. The petitioner appears to have approached the Supreme Court also by filing a Special Leave petition against the hearing of the petitions as the matter was pending before this Court, but the Supreme Court refused to interfere saying that the matter is being looked into by the High Court. ( 13 ) A written statement was filed by 13 MLAs on 26th August,05 and a rejoinder was filed by the petitioners but in the meantime an application was moved by the 13 MLAs for dismissal of the disqualification petitions dated 4. 9. 03 saying that in view of the declaration already given recognising the group of Loktantrik Bahujan Dal under Paragraph 3 and its merger under paragraph 4 of the Tenth Schedule, the aforesaid disqualification petitions need not be considered on merits. The petitioner, however, opposed the said prayer for deciding the preliminary objection by moving an application on 2. 9. 05 under Rule 8 (4) of The Members of Uttar Pradesh Legislative assembly (Disqualification on Grounds of Defection) Rules, 1987 (hereinafter referred to as 1987 Rules) with a prayer to determine the question involved in the petitions after permitting the petitioner to lead evidence. The petitioner again reiterated his stand by moving an application on 5. 9. 05 and requested for permission to lead the evidence. The said plea of the respondents was thus resisted by the petitioners but the Speaker dismissed those petitions of disqualification. The Speaker upheld the preliminary objection raised by the 13 MLAs and dismissed all 13 disqualification petitions by a common order saying that since the split has been recognised under Paragraph 3 and merger has also been recognised under Paragraph 4, therefore, there is no necessity to decide the petitions on merits after taking the evidence. The Speaker upheld the preliminary objection raised by the 13 MLAs and dismissed all 13 disqualification petitions by a common order saying that since the split has been recognised under Paragraph 3 and merger has also been recognised under Paragraph 4, therefore, there is no necessity to decide the petitions on merits after taking the evidence. ( 14 ) HOWEVER, again without giving any opportunity of giving evidence or arguing on disqualification petitions, the Speaker recorded a finding that in view of the recognition of the group being given by the Speaker on 6. 9. 03, those 13 MLAs cannot be held to be disqualified, because they met the governor on 27. 8. 03 as the split has been recognised with effect form 26. 8. 03. Elaborate arguments have been made by Sri S. C. Misra, Senior advocate on behalf of the petitioners, and Sri Shanti Bhushan and Sri Rakesh dwivedi, Senior Advocates on behalf of the private respondents. ( 15 ) SRI Shanti Bhushan took a plea and argued that even if it is taken as correct that 13 MLAs who met the Governor on 27th August, 2003, met as bsp MLAs, this act of theirs would not render them disqualified under paragraph 2 (1) (a ). Elaborating the aforesaid argument, he submitted that paragraph 2 (1) (a) only speaks of two situations which would disqualify an mla from being the member of the House, namely, if he voluntarily leaves the original political party, and secondly, if the member had cast vote against the mandate of the original political party or abstained from voting,. Further he argued that a Member in the House has got full liberty to express his views and even to call upon the Governor for the change of the Government and in doing so, he would not incur any disqualification, unless he does either of the acts as given in paragraph 2 (1) (a) and (b ). According to him, if without leaving the original political party, the member meets the Governor, for inviting the leader of another political party to form the Government, his conduct would neither fall under paragraph 2 (1) (a) nor (b ). The argument, if taken on its face value, would mean that unless the Member resigns or leaves the party by his conduct, he is free to act according to his conscience in the house. The argument, if taken on its face value, would mean that unless the Member resigns or leaves the party by his conduct, he is free to act according to his conscience in the house. For leaving the original political party, it is not necessary that a member should formally resign or accept or join any other political party. His conduct of meeting the Governor, requesting him to invite the leader of another political party to form the Government, in itself, would fall within the mischief of paragraph 2 (1) (a ). ( 16 ) SRI Shanti Bhushan also argued that since split has not been defined in the Tenth Schedule, therefore, no specific procedure is required to be followed for causing split in the original political party, which may be caused even by one member. ( 17 ) THESE questions shall be dealt with in detail at a later stage by me. ( 17 ) THESE questions shall be dealt with in detail at a later stage by me. The points which have been raised by the counsel for the respondents mainly are the following: (i) bare claim of split made by a Member of the Legislative assembly is sufficient to accept the split for which no evidence is required to be tendered nor such a split is required to be proved and consequently, the speaker would not have any jurisdiction or authority to look into the factum of split, which is an event, which takes place outside the House; (ii) On claim of such split being made, if a group of one-third or more MLAs, presents themselves before the Speaker, the Speaker would only have to count the heads and if he finds that they form the group of requisite strength, no further enquiry is at all needed for giving benefit of paragraph 3; (iii) Even if a split in the original political party is required to be proved, the very fact that the members of the legislature party who are more than one-third of their strength and who naturally belong to the original political party, from which they have splitted out and formed the group, would itself establish all the three ingredients of paragraph 3, namely, split in the original political party, faction arising out as a result of such split and group of one-third or more MLAs representing such faction in the House, and thus would not call for any further enquiry by the Speaker and there was no need to decide the disqualification petitions, as the MLAs were protected by the provisions of paragraph 3 and 4 and their group having been recognised by the Speaker, neither any prejudice could be said to have been caused to be petitioner, who in fact, represents the original political party nor the proceedings before the Speaker or the orders passed thereon could be said to be vitiated on this ground. The points urged by the respondents broadly raise the following questions for consideration:" (1) Whether the orders passed by the Speaker on 6. 9. 03 and 8. 9. The points urged by the respondents broadly raise the following questions for consideration:" (1) Whether the orders passed by the Speaker on 6. 9. 03 and 8. 9. 03 are inherently bad in law having been passed in violation of the principles of natural justice and also because of the procedural irregularity in proceeding with the applications said to have been moved under Paragraph 3 and 4 of the Tenth Schedule without even issuing notice on the disqualification petitions, though moved prior in time and thereafter deferring the hearing of the said petitions; and whether the manner in which the Speaker proceeded is in consonance with the substance and procedure as given in the Tenth Schedule or was violative of the constitutional mandate"" (2) Whether Paragraphs 3 and 4 of the Tenth Schedule could only be a defence in a matter wherein a plea of disqualification of an MLA is either taken or arises in view of the provisions of Paragraph 2 (1) (a) or an MLA which may include any number of MLAs can straightaway move a petition under Paragraph 3 or 4 or both, as the case may be, for seeking a declaration that they have not incurred any disqualification under paragraph 2 (1), {in this case paragraph 2 (1) (a)} or they could claim recognition of their splinter group or the merger of their political party even under paragraph 3 or 4 though no question of their disqualification on their aforesaid act of forming a splinter group or merger of their political party is raised or arises"" (3) Whether the lodging of bare claim of split in the original political party with no proof at all would be sufficient compliance of Paragraph 3 of the Tenth Schedule" (4) Whether the split in the original political party is a must and has to be proved when a member or any number of members of the House, seek to avoid disqualification and a finding on such split is necessary to be given by the speaker (5) Whether in the absence of their recognition, as aforesaid, by the Speaker, the splinter group which has been constituted as a result of split in the original political party giving rise to a faction and representing the said faction in the Legislature Party would make the status of these MLAs fluid and their participation in the House proceedings would in anyway be restricted or adversely affected (6) Whether the Speaker can take cognizance of any application/request made either under Paragraph 3 or 4 of the Tenth Schedule under any other provision of the schedule except Paragraph 6 (1 ). (7) Whether the date of disqualification under Paragraph 2 (1) (a) would be the date of event or happening or it would come into effect from the date of declaration as given by the Speaker under paragraph 6 (1); the effect of the date of disqualification coming into effect in a case where the benefit of Paragraphs 3 or 4 or both is being claimed is also a question to be considered and its effect in the present proceedings undertaken by the Speaker (8) Whether the disqualification petitions, could have been dismissed, on hearing of the preliminary objection, by holding that in view of the recognition given on 6. 9. 03 to the splinter group, there was no justification or occasion to hear those petitions on leading evidence; and whether at the same time the Speaker could have recorded a finding that these 13 MLAs were not disqualified again without affording any opportunity to the petitioner to put his case on the disqualification petitions ( 18 ) THE provisions of the Tenth Schedule have to be interpreted keeping in mind the avowed object and the purpose for which it has been enacted, namely, to curb the practice of dishonest dissensions and defections and to keep a check upon the MLAs to go against the wishes of their original political party either by leaving the party voluntarily or by disobeying the whip issued by the party, as the case may be. The provisions also cast an obligatory duty upon the court to see that the MLAs who have left their original political party voluntarily are protected or, in other words, saved from being disqualified in terms of the provisions of Paragraphs 3 and 4 of the tenth Schedule. In making such an enquiry, the court would be guided by the well known principles of judicial review in respect of the order passed by the speaker, as held in the case of Kihoto Hollohan, defining the scope of judicial review under Article 226 of the Constitution in respect of an order passed by the Speaker under Paragraph 6 confining it to the questions of jurisdictional errors only viz. infirmities basedon violation of constitutional mandate, malafides and non compliance with rules of natural justice and perversity. A look at the Tenth Schedule would reveal that it has the heading"provisions as to disqualification on ground of defection. infirmities basedon violation of constitutional mandate, malafides and non compliance with rules of natural justice and perversity. A look at the Tenth Schedule would reveal that it has the heading"provisions as to disqualification on ground of defection. " Paragraph 1 defines legislature party in sub-clause (b) and the original political party in sub-clause (c ). Paragraph 2 is the disqualification on ground of defection which says that subject to the provisions of paragraphs 3,4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House if he has voluntarily given up his membership of such political party. There is no dispute that BSP was the original political party of 37 MLAs and they had been elected as member of the House having been set up as candidate for the election and, therefore, in view of the Explanation (a)attached to the aforesaid provision, they will be deemed to belong to political party aforesaid. Since there is no case of applicability of the provisions of paragraph 2 (1) (b), therefore, the same is not being referred to. Since there is no case of applicability of the provisions of paragraph 2 (1) (b), therefore, the same is not being referred to. Paragraph 3 has the sub-heading disqualification on ground of defection not to apply in case of split and reads as under: "disqualification on ground of defection not to apply in case of split.- Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislative party, -- (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground - (i) that he has voluntarily given up his membership of his original party; or (ii) that he has voted or abstained from voting in such house contrary to any direction issued by such part of by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph. "likewise Paragraph 4 says that disqualification on ground of defection not to apply in case of merger and reads as under:"disqualification on ground of defection not to apply in case of merger.- (1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party - (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. (2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. "paragraph 6 confers power upon the Speaker to decide the question of disqualification, as given in paragraph 6 (1 ). Paragraph 8 prescribes the power to make rules by the Speaker for giving effect to the provisions of this schedule under which the Rules known as The Members of Uttar Pradesh legislative Assembly (Disqualification on Grounds of Defection) Rules, 1987 have been framed. ( 19 ) THE rules of natural justice cannot be put in a straitjacket formula nor they can be universally applied in all cases and in all situations but their applicability and the extent would depend upon the facts and circumstances of each individual case and also keeping in mind the nature of proceedings and the source from which they arise. The Supreme Court in the case of brundaban Nayak v. Election Commission of India and others, AIR 1965 sc 1892 observed that it is of utmost importance that the complaints under article 192 (1) must be disposed of as expeditiously as possible. The Supreme Court in the case of brundaban Nayak v. Election Commission of India and others, AIR 1965 sc 1892 observed that it is of utmost importance that the complaints under article 192 (1) must be disposed of as expeditiously as possible. A catena of decisions have been cited to reinforce the aforesaid principle, which stands established beyond doubt and, therefore, there is no need to refer to such cases. However, reference can be made to the case of Kihoto Hollohan (supra) wherein the Supreme Court held that inspite of the finality attached, such decision is subject to the judicial review on the ground of non compliance of principles of natural justice but while applying the principles of natural justice, these principles cannot be put in straitjacket. The Speakers order dated 6. 9. 03 as well as 8. 9. 03 is being challenged on the plea of violation of principles of natural justice, besides being malafide and violative of constitutional mandate. The order for being vitiated for violation of principles of natural justice would require that there has been such violation at some stage of proceedings which has caused some prejudice or possible prejudice, which, if afforded an opportunity might have or would have changed the fate of the order, unless it is a case of affording no opportunity at all, before passing the order. The theory, of the orders being held to be bad by mere show of violation of principles of natural justice in the proceedings cannot be said to be any more surviving in view of the decision rendered in the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others (1993) 4 SCC 727 and State Bank of Patiala and others v. S. K. Sharma, (1996) 3 SCC 364 wherein the Supreme Court held that the approach and test adopted in B. Karunakar case should govern all cases where the complaint is not that there was no hearing, no notice, no opportunity and no hearing, but one of not affording a proper hearing ( i. e. adequate or a full hearing) or violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice. ( 20 ) THE Court further observed: " The principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between " no notice4/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate - take a case where the person is dismissed from service without hearing him altogether ( as in Ridge v. Baldwin ). It would be a case falling under the first category and the order of dismissal would be invalid - or void, if one chooses to use that expression (Calvin v. Carr ). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officers report (Managing director, ECIL v. B. Karunakar) or without affording him a due opportunity of cross-examining a witness (K. L. Tripathi) it would be a case falling in the latter category - violation of a facet of the said rule of natural justice - in which case, the validity of the order has to be tested on the touchstone of prejudice. ( 21 ) IN the case of Ganesh Santa Ram Sirur v. State Bank of India and another, (2005) 1 SCC 13 , the same view has been reaffirmed, with the observation that what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before the court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. In the case of A. K. Kraipak and others v. Union of India and others, (1969) 2 SCC 262 the Supreme Court laid down that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. In the case of A. K. Kraipak and others v. Union of India and others, (1969) 2 SCC 262 the Supreme Court laid down that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. ( 22 ) IN M. C. Mehta v. Union of India, (1999) 6 SCC 237 the Supreme Court observed that there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the constitution of India. For example, where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. In the case of Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 , the Supreme Court after referring to the earlier decisions in k. L. Tripathi v. State Bank of India, AIR 1984 SC 273 and M. C. Mehta v. Union of India (supra) observed:"since then, this court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala and others v. S. K. Sharma (supra ). In that case the principle of prejudice has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of m. P. (1996) 5 SCC 460 ". ( 23 ) THE test, therefore, would be that whether the violation to observe the principle of natural justice is a violation of not following any provision of the rule or the enactment or in the absence of any such provision being provided under the rules, namely, Tenth Schedule itself, any such prejudice had occasioned, it would vitiate the order merely on the said breach of natural justice or it would command the petitioner to establish atleast an element of prejudice caused to him. ( 24 ) IT is the admitted case of both the parties that the disqualification petitions with respect to 13 MLAs including Rajendra Singh Rana, who is said to be the leader of the group were filed on 4. 9. 03. ( 24 ) IT is the admitted case of both the parties that the disqualification petitions with respect to 13 MLAs including Rajendra Singh Rana, who is said to be the leader of the group were filed on 4. 9. 03. The Speaker, did not issue any notice on those petitions and felt satisfied by keeping those applications with him. The notices on these disqualification petition, for the first time were issued on 18. 9. 03 i. e. much after the Speaker had not only entertained but decided the applications of the 37 MLAs, who claimed the protection of paragraphs 3 and 4 of the Tenth Schedule for avoiding disqualification under paragraph 2 (1) (a) on 6. 9. 03 and to be more explicit when the motion of confidence got through in favour of Sri Mulayam Singh Yadav on 8. 9. 03. It was argued during the course of hearing that the petitioner was not even supplied a copy of the two applications dated 6. 9. 03 and that without affording any opportunity of filing a reply or leading evidence, he was merely afforded opportunity of oral hearing, on the spot, in an unholy haste, as the application itself was moved at 5. 45 p. m. and the matter was finally decided by 8o Clock or so in the night. The submission, therefore, is that the Speaker not only acted in uncalled for haste with a view to give advantage in the shape of immediate protection to the 37 defaulting MLAs from being subjected to disqualification which is established by the fact, that all 40 MLAs (37+3) were soon thereafter bestowed the office of Minister, and in a zeal to do so, he not only denied opportunity to file reply and lead evidence to rebut the claim of the respondents but also committed judicial irregularity to the grossest extent when he proceeded to hear the applications under Paragraph 3 and 4 and did not issue even notice upon the pending disqualification petitions, though moved earlier in point of time, what to say of deciding them. The aforesaid order of the Speaker was completely in derogation to the provisions of Tenth Schedule, which violated the constitutional mandate, prescribed therein. The aforesaid order of the Speaker was completely in derogation to the provisions of Tenth Schedule, which violated the constitutional mandate, prescribed therein. ( 25 ) LEARNED Advocate General, Sri Virendra Bhatia, though he did not argue on merits of the orders of the Speaker but was of great assistance in giving information from the records. On the basis of the record, he very fairly stated that the record does not show that copies of the applications dated 6. 9. 03, namely, one moved claiming benefit of Paragraph 3 of the Tenth schedule and the other claiming benefit of Paragraph 4 were given to the petitioner. He also informed the court that the copies of the application moved on 8. 9. 03 were also not given to the petitioner by means of which 3 more mlas belonging to Loktantrik Bahujan Dal were allowed to join the samajwadi Party. ( 26 ) SRI Rakesh Dwivedi being conscious of the aforesaid factual position regarding the non supply of the copies of the application moved by the 37 mlas to the Speaker, submitted that even assuming that the copy of the applications aforesaid were not given to the petitioner, it would not be a case of total denial of opportunity of hearing and at best it can be a case of insufficient or inadequate hearing said to have been afforded and since no prejudice has caused to the petitioner, it hardly matters, whether the copies of the applications were given or not. ( 27 ) THE submission proceeds on the assumption that since the petitioner participated in the proceedings and made his defence, which was available to him and which he thought fit, which could have only been done when he had known the contents of the application and, therefore, it cannot be said that the petitioner was not aware about the contents of the applications and, therefore, could not raise a valid defence. The plea of the petitioner that it was not a valid split, as there were only 13 MLAs at the time of split was duly considered by the Speaker and that a group of 37 MLAs was duly identified in front of the petitioner on his own request and, therefore, nothing beyond could have been said by the petitioner even if any further opportunity had been given to him, either with the supply of the copies or for furnishing evidence and since there may not have been any other conclusion in the aforesaid circumstances to which the Speaker could have arrived, it is a case where no prejudice could be shown by the petitioners and, therefore, the order would not stand vitiated on that count. ( 28 ) THE original political party, sets up a candidate for election and if such a member after being elected to the House, may be individual and may be in accordance with the terms of Paragraph 3 or 4 leave their original political party, it would certainly cause its public image tarnished and such party would be seen with suspicious eye, may be giving an impression that since a large number of MLAs have quit the party, therefore, the party was not true to the policies pronounced by the party or that it was not acting in a bonafide manner for the welfare of the people or in the interest of the State. If such an image of the party is reflected or comes to be reflected bythe action of a group of mlas in the legislature party, the original political party has every right to be heard and afforded reasonable opportunity before the Speaker decides that such a group has not become subject to any disqualification as given under paragraph 2 (1) (a ). Same would be the case when the merger takes place in accordance with Paragraph 4 of the Schedule. ( 29 ) THE entire Tenth Schedule and the scheme therein, has been framed also with a view to safeguard the interest and image of the original political party, who sends the public representatives on its ticket. Any defection by its members not only causes damage to its reputation in public, which adversely may affect chances of its return in next election, but also makes the authenticity of its policy inside the House, gullible and questionable. Any defection by its members not only causes damage to its reputation in public, which adversely may affect chances of its return in next election, but also makes the authenticity of its policy inside the House, gullible and questionable. Functioning of the House, so far the formation of Government is concerned, may not be disrupted by bulk defections, but the creditworthiness of the original political party both inside and outside the House, would necessarily be doubted. Therefore, while interpreting the provisions of the Schedule, the aforesaid underlined principles cannot be given a go-bye. Non-supply of the copy of the applications on which the entire order has been based was a serious flaw violating the principle of natural justice though it has been pleaded by the Respondents that since this plea has not been raised in the writ petition specifically and it was only during the course of arguments that the plea has been raised and the petitioners having been afforded opportunity of hearing, may be of lesser degree, in which the petitioner did participate without raising any grievance for the non supply of copy therefore, the plea has to be decided on the principle of prejudice being caused to the petitioner. ( 30 ) EVEN assuming that non supply of the copies of the applications are not in itself sufficient in view of the fact that no such grievance was raised by the petitioner to nullify the order on the ground of violation of principle of natural justice, the question still remains as to why the Speaker proceeded with the hearing of these applications without supplying a copy of those applications, particularly, when the petitioner had already entered into caveat and also to test the logic of not issuing notice on disqualification petitions on 4. 9. 03 itself and entertaining the applications moved by the dissenting MLAs on 6. 9. 03 and deciding them on that very date without giving even breathing time to the petitioners to submit their reply or to adduce such evidence which they wanted to place in support of their claim that in fact there was no split in the original political party and no meeting was held on 26. 8. 03 or that on that date only 13 members splitted out and a group of 1/3rd was not formed at all and on such split of 13 MLAs, they approached the Governor also on 27. 8. 03 or that on that date only 13 members splitted out and a group of 1/3rd was not formed at all and on such split of 13 MLAs, they approached the Governor also on 27. 8. 03 requesting the Governor to invite the leader of an opposition party to form the government which amounts to an overt act of leaving their original political party voluntarily making themselves subject to disqualification under paragraph 2 (1) (a ). Also the plea that in view of the disqualification of these 13 mlas, subsequent addition of the 24 MLAs in the group would not save either of them from the mischief of para 2 (1) (a ). There is also no explanation on record as to why the notices were issued on disqualification petitions as late as on 18. 9. 03 and that too after recognising the group of the private respondents and after recognising their merger with the Samajwadi Party, and why no effort was made by the Speaker, for deciding the petitions for disqualification moved by the 37 MLAs. ( 31 ) THE Speaker also sidelined the fact that on 2. 9. 03, the opening day of the session, or even before the group of 37 (13+24) was recognised by the speaker on 6. 9. 03, these 13 MLAs were provided seats with the party in power, though rest 24 MLAs sat with the BSP MLAs, which was a strong circumstance, as urged by the petitioner, in support of the plea that on 26. 8. 03, the group of one-third members was not constituted and even before the said group could be formed, 13 MLAs splitted out, and thus rendered themselves to the disqualification under paragraph 2 (1) (a ). ( 32 ) THE applications for disqualification are to be decided expeditiously and without any unreasonable delay, has been repeatedly stated by the courts and, therefore, when the disqualification petitions had reached the Speaker on 4. 9. 03, there appears to be no justification, at least no such justification has been brought to the fore, for not issuing the notices immediately and keeping the matter pending without taking cognizance thereof. 9. 03, there appears to be no justification, at least no such justification has been brought to the fore, for not issuing the notices immediately and keeping the matter pending without taking cognizance thereof. ( 33 ) THE action of the Speaker postponing the issuance of notice, on the disqualification petitions, after receiving them cannot be supported by any rules of procedure may be 1987 Rules or otherwise nor under the provisions of the Tenth Schedule. The procedure adopted by the Speaker cannot be said to be in accordance with the spirit of the constitutional provisions of Tenth schedule, and appears only to be a pretext for postponing their hearing and adjudication. ( 34 ) THE Speaker, who was having the responsibility of seeing that the government functions properly and is not destabilised and who was having full control of the House, ought to have immediately issued notice on the disqualification petitions, and should have proceeded to decide the said petitions, when all the parties were present before him and, particularly when there was also an allegation that not only these 13 MLAs had met the governor on 27. 8. 03 but on 2. 9. 03 they sat with the ruling party (Samajwadi party) whereas 24 other MLAs of the alleged group of 37 did sit with their original political party, namely, BSP, which showed a circumstance that atleast till 2. 9. 03 the group was not formed consisting of 1/3rd members of the legislature party and,therefore, those 13 members had incurred disqualification on 27th August,03 itself, and could not have been added in later splinter group. 9. 03 the group was not formed consisting of 1/3rd members of the legislature party and,therefore, those 13 members had incurred disqualification on 27th August,03 itself, and could not have been added in later splinter group. ( 35 ) AN argument has been raised by the respondents that assuming that the 13 members had soon after the split in the BSP on 26th August,03 met the governor on 27th August,03 for inviting the leader of the Samajwadi Party to be the Chief Minister, it would not be a case of disqualification at all under paragraph 2 (1) (a) , as there being split in the original political party and 1/3rd members of the legislature party having formed the group, representing the faction arising out of the split, may be at a later point of time than the split within a short span of 8/9 days, therefore, no defence was available to the petitioner and there being no bar under Para 3 of the Schedule to form such group within a reasonable period of time, looking to the continuity of the process and the reason for split, the action of the Speaker can be adjudged neither as violative of the principle of natural justice nor violative of any constitutional provisions, which has caused any prejudice to the petitioners. It has further been submitted that no malafides can be attributed to the Speaker for adopting the procedure, which he followed. ( 36 ) THE aforesaid argument raises multiple questions to be determined i. e. whether there was any split in the original political party, though the role of the Speaker in this regard is limited, as he cannot go into the validity of the proceedings of the split and it is sufficient if split is said to have taken place in the original political party but this alone would not be an answer to the argument raised by the petitioner that the split in the original political party is a must and has to be proved by bringing some material on record and that when a claim of split in the original political party is made by the Members of the Legislative Assembly, the Speaker is under obligation to test the said claim. ( 37 ) THE plea also raises an issue for determination that whether the spilt in the original political party, formation of the faction arising as a result of such split and constitution of the group in the legislature party representing such a faction are the happenings which have to take place simultaneously or within a course of time, which though not defined, may be taken to be a reasonable time. It also involves a question as to what would be the date of disqualification of the member, if he has incurred the disqualification. Before proceeding to consider the aforesaid pleas, for the limited purpose of making a review of the procedural irregularity which is being tested on the principle of natural justice and violation of the constitutional provisions, it would be apposite to keep hold of the fact that these questions were and are otherwise to be decided by the Speaker, in case the plea of the petitioners succeeds, as this court would not be substituting its own decision on the facts and happenings in the case but would only confine itself in clarifying the legal position, as it stands under the Tenth Schedule. The plea that a claim of split having taken place in the original political party is all that is required to be stated by the MLAs who have left the party is being made in the light of the observations made by the Supreme court in the case of Ravi S. Naik (supra) and in particular placing reliance upon paras 36 and 37, which read as under: "36. As noticed earlier paragraph 2 of the Tenth Schedule provides for disqualification on the ground of defection if the conditions laid down therein are fulfilled and paragraph 3 of the said schedule avoids such disqualification in case of split. Paragraph 3 proceeds on the assumption that but for the applicability of the said provision the disqualification under paragraph 2 would be attracted. The burden to prove the requirement of paragraph 2 is on the person who claims that a member has incurred the disqualification and the burden to prove the requirements of paragraph 3 is on the member who claims that there has been a split in his original political party and by virtue of said split the disqualification under paragraph 2 is not attracted. In the present case Naik has not disputed that the has given up his membership of his original political party but he has claimed that there has been a split in the said party. The burden, therefore, lay on naik to prove that the alleged split satisfies the requirements of paragraph 3. The said requirements are: (i) The member of a House should make a claim that he and other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original party; and (ii) Such group must consist of not less than one-third of the members of such legislature party. 37. In the present case the first requirement was satisfied because Naik has made such a claim. The only question is whether the second requirement was fulfilled. The total number of members in the legislature party of the MGP (the original political party) was eighteen. In order to fulfil the requirements of paragraph 3 Naiks group should consist of not less than 6 members of the legislature party of the MGP. Naik has claimed that at the time of split on december 24, 1990 his group consisted of eight members whose signatures are contained in the declaration, a copy of which was filed with the reply dated February 13, 1991. ( 38 ) IN Ravi Naiks case on whom the burden lies to prove the ingredients of para 2 and para 3 has been clearly spelt out wherein it has been propounded that the burden to prove the requirement of paragraph 2, namely, for holding a member disqualified lies upon the person who claims that the member has incurred disqualification whereas for avoiding disqualification burden to prove the requirement of paragraph 3 is on the member who claims that there has been a split in the original political party and by virtue of the said split, the disqualification under Paragraph 2 stands avoided. The burden, therefore, was found to be on Naik in the aforesaid case to prove that the alleged split satisfied the requirement of Paragraph 3 and the two requirements have been quoted above. The burden, therefore, was found to be on Naik in the aforesaid case to prove that the alleged split satisfied the requirement of Paragraph 3 and the two requirements have been quoted above. ( 39 ) HAVING said so, in para 38 of the report the Supreme Court did not close the issue of proving the split in the original political party on merely raising a claim, as stated aforesaid, and, therefore, went into the causes which made the Speaker to hold that there was no split. The Speaker had held in that case that the split had not been proved because no intimation of the split had been given to him in accordance with Rules 3 and 4 of the Disqualification rules. This reason was not found to be sufficient, as their Lordships observed that Rule 3 also comes into play after the split and the failure on the part of the leader of the group that has been constituted as a result of the split does not mean that there has been no split. The Court, therefore, further held " As to whether there was a split or not has to be determined by the Speaker on the basis of the material placed before him. " (Emphasis supplied) In the given facts of the case, the Court found that the question which required consideration was whether as a result of the said group being constituted there was a split in the MGP as contemplated by Paragraph 3 of the Tenth Schedule and since the Speaker had refused to count two MLAs, who were earlier disqualified by him, though their order of disqualification was stayed by the high Court in the writ petition filed by the aforesaid MLAs, they were not counted towards the group so as to make 1/3rd members of the legislature party, was found to be an erroneous decision, as in the presence of the stay order against the disqualification order passed by the Speaker, the Speaker could not have excluded them from being included in the said group, as due reverence should have been shown to the orders passed by the court. When burden lies upon the members, who claim protection of paragraph 3 to prove the split in the original political party, constitution of the group representing a faction arising out of a split, it becomes necessary that all the three conditions are brought to the notice of the Speaker with relevant facts and the Speaker is bound to record a finding on split in the original political party. ( 40 ) THE aforesaid question also came up for consideration before the bombay High Court in the case of Dr. Wilfred A. De Souza and others vs. Shri Tomazinho Cardozo Honble Speaker of the Legislative Assembly and others, (1998) Vol. 100 (3) Bom. L. R. 194 and in the case of Ram Bilas sharma v. The Speaker,haryana Vidhan Sabha (FB), 1950-98 SC and f. B. Election cases 46 and also in the case of Mayawati v. Markandeya chand and others, AIR 1998 SC 3340 and all these cases were considered by the Bombay High Court in Narsingrao Gurunath Patil v. Shri Arun gurarathi,speaker and others, 2003 Vol. 105 (3) Bom. L. R. 354 fully keeping in mind the dictum made by the apex Court, in Ravi Naiks case. The Bombay high Court adopted the reasoning given by the Division Bench in the case of dr. Wilfred A. De Souza (supra), wherein the Division Bench had made the following observations:"applying the principles of statutory construction, in our view, mere bare claim would not be sufficient, to prima facie prove split resulting in faction/group and that such groupconsists of not less than one third members of the legislature party. Prima facie proof in support of claim shall have to be adduced before the Speaker. The Speaker has to prima facie satisfy himself that faction/group has arisen as a result of split. It is not at all necessary that it should be a vertical split at all levels or rungs of the political party. It is not for the Speaker to find out the extent or the percentage of the split in the political party. However, when it comes to legislature party, the group claiming representing the faction has to be not less than one third of the members of the legislature party. It is not for the Speaker to find out the extent or the percentage of the split in the political party. However, when it comes to legislature party, the group claiming representing the faction has to be not less than one third of the members of the legislature party. " ( 41 ) THE same view was taken in the case of Ram Bilas (FB) and the punjab and Haryana High Court held that a member claiming benefit of paragraph 3 has to prove prima facie that there has been a split in the original political party and the plea that such proof is not necessary was rejected. On facts, the Bombay High Court found that the split was not proved. In the case of Mayawati v. Markandeya Chand (supra), while making reference to the Constitution Bench, the Chief Justice found that the question regarding the nature and extent of power under Paragraph 3 of the Tenth schedule have not been answered in Kihoto Hollohans case and, therefore, required consideration by the Constitution Bench. However, the two Honble judges, namely, Justice Thomas and Justice Srinivasan gave conflicting judgment. ( 42 ) WE are informed that the reference could not be answered on merits, as the petition was dismissed as having become infructuous. The Bombay High Court in the case of Narsingrao Gurunath Patil (supra) considered the judgment of the two Honble Judges, namely, Justice thomas and Justice Srinivasan and found that although Justice Thomas differed on certain other issues, agreed with the reasoning given by Justice srinivasan in respect of the requirement of Paragraph 3,namely, "the following are the conditions for satisfying the requirements of the para. (i) A split in the original political party; (ii) The faction is represented by a group of M. L. As in the House; and (iii) Such group consists not less than one-third of the members of the Legislature party to which they belong. For the purpose of that para all the three conditions must be fulfilled. It is not sufficient if more than 1/3rd members of a legislature party form a separate group and give to itself a different name without there being a split in the original political party. Thus the faction of split in the original political party and the number of members in the group exceeding 1/3rd of the members of legislature party are the conditions to be proved. Thus the faction of split in the original political party and the number of members in the group exceeding 1/3rd of the members of legislature party are the conditions to be proved. " ( 43 ) IN Gurunaths case, there were two members in Janta Dal (S) Party of which one wrote a letter to the Governor withdrawing the support from the government and claimed that he has formed a separate group in the legislative Assembly by leaving the membership of the original political party (Janta Dal (S) ) and that he was the only member in the new legislature party. A plea was taken by one of the MLAs of the original political party that there has been no split in the original political party and a disqualification petition was also moved. Initially there was no claim by defecting member of any split having taken place in the original political party but later on in reply to the disqualification petition, such a plea was raised. The Bombay High court despite the fact that out of the two members, one member of the legislature party had splitted out which certainly was more than 1/3rd strength of the legislature party, refused to hold that the member was not disqualified under the terms of paragraph 3 after holding that no proof was furnished by the member, namely, Gangadhar Thakkarwad showing the split in the original political party, namely, calling of the meeting, agenda of the meeting, proceedings of the meeting, resolution of the split and any report of the split in janta Dal (S) in print media and T. V. Channels. The plea that there was no need to have a split in the original political party and there could be split in the legislature party without it, was also not accepted. ( 44 ) IN defence, it is being argued that the Speaker was not to go beyond the dictum of the apex court in the Ravi Naiks case in regard to the proof which is required for taking shelter under Paragraph 3 and that the judgments of the High Courts of Punjab and Haryana and Bombay High Court were of no assistance, who have evolved a vague theory of prima facie proof which phrase does not find place nor flows from the provision of the Para itself. The submission was to the extent that in case the split in the original political party was to be proved by giving some evidence, then it was to be simply proved and there was no occasion for the courts to dilute it by saying prima facie proof. Also it was urged that the opinion expressed by the two Judges of the supreme Court in the case of Mayawati v. Markandeya Chand are obviously not binding, as they have not culminated into judgment or final order of the apex court and at the same time they are also not persuasive nor can be of any guidance in deciding the issue. ( 45 ) BOMBAY High Court and the Punjab and Haryana High Court in the above referred cases taking note of the provision of Para 3, and after taking into account the dictum of the apex court in the Ravi Naiks case and also the unconflicting views expressed by Justice Thomas and Justice Srinivasan in mayawatis case have reached the conclusion that bare lodging of claim by a member would not be sufficient to hold the split in original political party, and he has to prima facie prove the split in the original political party. The reason for saying that there should be prima facie proof in support of the claim does not stand excluded even in Ravi Naiks case where the Supreme Court after laying down the requirements of Para 3, proceeded to hold that whether there was a split or not was to be determined by the Speaker on the basis of the material placed before him. In case their Lordships were of the view that on lodging the claim it was not required at all to place any material in support of the split in the original political party, probably the aforesaid subsequent observation would not have come. ( 46 ) THE view expressed in Mayawatis case may not be a binding precedent but the dismissal of the petition as having become infructuous is only an indication of the fact that at the given point of time no relief could have been granted to the parties. The view, therefore, expressed in the aforesaid order can be of valuable assistance for interpreting the meaning, scope and import of paragraph 3 on first principles. The view, therefore, expressed in the aforesaid order can be of valuable assistance for interpreting the meaning, scope and import of paragraph 3 on first principles. ( 47 ) THE apex court in the case of Ravi Naik has categorically held that the burden to prove that the member, who has left the original political party voluntarily, cannot be subjected to disqualification or would successfully avoid disqualification lies upon the member who claims the benefit of paragraph 3. After pronouncing the said theory of burden of proof upon the respective persons who either allege disqualification of a particular member or members or who intend to avoid disqualification under paragraph 3, the apex court apparently not only laid down the requirement but also placed the burden of such a proof on the person who claims its benefit, and at the same time also observed that whether there was split or not was to be determined by the Speaker on the basis of the material placed before him. ( 48 ) A conjoint reading of the principles laid down by the apex court establishes beyond doubt that the Speaker has to determine the question of split in the original political party and for that matter the material which is brought on record has to be seen. Bare putting a claim does not in its absoluteness absolve the obligation of the Speaker to enter into the question of split. It having been said that the burden of proof lies upon a person who claims the benefit of paragraph 3, it can well be derived that proof is required to be given by such member, which would discharge his burden to prove the split in the original political party, which, of course, cannot be said to be proved by merely lodging a claim. When the Supreme Court says that the burden lies upon the member to prove the requirement of paragraph 3 it inherently takes into consideration all three steps specifically incorporated therein, which are necessary for avoiding disqualification. It would be a matter of facts in each case as to what would be the nature or degree of proof which would be sufficient for the Speaker to uphold the claim of split. Paragraph 3 which is more in the nature of defence to a petition for disqualification or to an action which otherwise disqualifies the member, has been cautiously and specifically worded. Paragraph 3 which is more in the nature of defence to a petition for disqualification or to an action which otherwise disqualifies the member, has been cautiously and specifically worded. When a statute and in particular where a constitutional provision is to be interpreted, each and every word used or which finds place in the enactment has to be given its meaning for which the Parliament has used it and it cannot be made redundant nor it can be ignored. If the words are clear, the plain and simple meaning which are attributed to such words and phraseology used have to be attributed but if there is any ambiguity and if it can be cleared by making harmonious construction or interpretation, the same would be done. Every effort has to be made that no words are left without meaning and there does not arise any conflict so as to negate the meaning of one or the other word (s) unless the words used or the language implied are in direct conflict which cannot be reconciled or the interpretation given to one or the other word would lead to absurdity, the courts would have little jurisdiction to give a different meaning to the enactment or to the constitutional provisions. If the intention of the parliament is sound and clear, the meaning that further the scope and is helpful in achieving the purpose and object of the Act has to be assigned. For finding out the real intention, meaning and purpose of a provision, the intention of the legislature is very significant. ( 49 ) IN the case of State of Himachal Pradesh and another v. Kailash chandra Mahajan and others, AIR 1992 SC 1277 , the apex court observed that the purpose or object of an enactment relates to the mischief to which the enactment is directed and its remedy, legislative intention relates to the legal meaning of the enactment. ( 50 ) THE intention of the legislature thus assimilates two aspects: In one aspect it carries the concept of meaning, i. e. what the words mean and in another aspect it conveys the concept of purpose and object or the reason of spirit pervading through the statute. The process of construction, therefore, combines both literal and purposive approaches. ( 50 ) THE intention of the legislature thus assimilates two aspects: In one aspect it carries the concept of meaning, i. e. what the words mean and in another aspect it conveys the concept of purpose and object or the reason of spirit pervading through the statute. The process of construction, therefore, combines both literal and purposive approaches. In other words, the legislative intention i. e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. (G. P. Singh, Principles of Statutory interpretation, Sixth Edn. 1996 ). . . ( 51 ) IN the Constitution Bench judgement of the Supreme Court in the case of R. M. D. Chamarbaugwalla and another v. Union of India and another, air 1957 SC 628 , the Supreme Court, laying down the principle of interpretation observed as under: "now, when a question arises as to the interpretation to be put on an enactment, what the Court has to do is to ascertain "the intent of them that make it", and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in this regard of all other materials. "the literal construction then", says maxwell on Interpretation of Statutes, 10th Edn. p. 19, "has, in general, but prima facie preference. To arrive at the real meaning it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider, according to Lord Coke: (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy parliament has appointed; and (4) The reason of the remedy. " ( 52 ) THESE principles are well settled and have been applied by the Courts interpreting a statutory or a constitutional provision. " ( 52 ) THESE principles are well settled and have been applied by the Courts interpreting a statutory or a constitutional provision. Care has also to be taken while interpreting a provision that if the meaning and intention of the Parliament is clear and unambiguous, due effect should be given to the enactment without making an attempt to fill in the lacuna even if the Court in its own wisdom finds that the constitutional provisions, otherwise could have been more effective and reasonable and not being guided by the hardship, it may create, keeping in mind the well known principles of interpretation, as regards statutes and particularly the constitutional provisions. Without burdening the judgement with any further case law, the action of the Speaker in conducting the proceeding under Tenth schedule and the order passed by him has to be judicially scrutinised. Since the term split has not been defined in the Tenth Schedule nor elsewhere in the Constitution, learned counsel for the respondents raised an argument that looking to the various meanings attributed to the word in the dictionary, it would be reasonable to conclude that there is no particular form, manner or procedure which should be adopted for causing split. He brought into service the meaning of the word split as given in various dictionaries, namely, to separate or separated into faction (Collins Concise Dictionary ). Submission, therefore, is that in the absence of any specific and particular format or ritual to be followed, the split can be inferred by conduct or otherwise irrespective of the fact, whether an agenda has been issued, or a meeting has been called etc. , as observed in the case of Gurunath Patil. True, the nature and extent of proof which is required to prove split in the original political party may differ in a given case but there has to be a proof either by documentary evidence or by the conduct, may be in the reports of the newspaper, electronic media or in the like manner. True, the nature and extent of proof which is required to prove split in the original political party may differ in a given case but there has to be a proof either by documentary evidence or by the conduct, may be in the reports of the newspaper, electronic media or in the like manner. The word split cannot have a different meaning as against its ordinary meaning which means breaking away and, therefore, a break up in the original political party is not only a must but has also to be proved by bringing necessary material on the basis of which split is being said to have caused, before the Speaker and moreso, when the original political party specifically refutes and repudiates the factum of split taking place in the original political party, it necessarily requires such a proof, e. g. in this case, split is said to have been caused in a meeting of the party in which office bearers of the party also participated. ( 53 ) IMMEDIATELY the question arises that if a group of 1/3rd or more members of the legislature party forms a group and leave their original political party, nothing more is required to be proved for laying a claim under paragraph 3 and in such an event the split in the original political party would automatically stand proved, as the members of the legislature party who en bloc leave the original political party would establish, namely, the split in the original political party and a faction which has arisen as a result of the aforesaid split and also the group in the legislature party representing that faction and, therefore, the necessity to prove the split in the original political party by giving any evidence even of prima facie character would not be necessary. The aforesaid facts thus themselves satisfy all the three ingredients. The aforesaid plea has to be tested in the light of the conditions given in paragraph 3 of the Tenth Schedule. The aforesaid facts thus themselves satisfy all the three ingredients. The aforesaid plea has to be tested in the light of the conditions given in paragraph 3 of the Tenth Schedule. ( 54 ) HAD it been the intention of the aforesaid provision that whenever a group of 1/3rd or more members of the legislature party is formed and they amongst themselves decide to leave their original political party or support some rival party or separate their place of sitting in the House, would be full compliance or in any case, sufficient requirement of paragraph 3, there was no necessity to put in paragraph 3 (1), the words split in the original political party. The Parliament being conscious that 1/3rd members of the legislature party or more combined together if leave their original political party, that would save them from disqualification under paragraph 2 (1) (a), the provisions would have been framed in a manner which do not require the necessity of having split in the original political party, if the MLAs are one-third or more of their total strength. For example, it would have been stated that in case 1/3rd or more members of the legislature party form a group by leaving their original political party or if they leave the original political party, then such a defection or floor crossing would save them from disqualification under paragraph 2. Split in the original political party would not have been required to be established or shown if by mere consented decision/action of group of members of the legislature party, may be 1/3rd or more, they acquire a right to choose their own forum or their stand, namely, their ideology, ignoring the wishes and the mandate of their original political party. The members who are elected on a ticket of original political party are supposed to abide by the principles and policies, which their original political party professes and propagates. After being elected as a member of the legislature party, they do not stand cut off from their original political party nor they get any right either to flout or to ignore the manifesto and the programmes and policy decisions or the decisions of the original political party in policy matters concerning the state or the nation of their own free will. So long they remain in the original political party, they are bound to follow its mandate. So long they remain in the original political party, they are bound to follow its mandate. ( 55 ) IT is in this light, one has to test the requirement of paragraph 3 wherein the formation of group or constitution of the group of 1/3rd or more members of the legislature party as the group which represents a faction which has arisen out of split in their original political party, means that unless a split in the original political party takes place, the members of the legislative assembly irrespective of their numbers are not free to change their loyalty and to cross the floor. The elected Members (MLAs) have to push forward the ideology and the stand of their original political party, both inside and outside the House. A Member of legislative assembly is not supposed to take a conflicting or different stand in mattes which come for consideration in the house, either in derogation or in contrast to the stand of his original political party. ( 56 ) IN fact the choice of candidate by the political party, is indicated by the ticket given for contesting the election for sending such public representative, who not only believes in its political philosophy, but shall also plead and pursue the same in the House. This is also in consonance with the principle of public morality in politics for the protection of which the Tenth Schedule has been enacted. The concomitant of the requirement of having a split in the original political party for avoiding disqualification is that unless a split is there, the members elected on the ticket of the said original political party are bound by the wishes of their original political party and the original political party in turn has a right to instruct and guide them in the manner in which they have to be inside the House. Any deviation from such command would make them incur disqualification. Thus the numerical count or the number of members of the legislature party, who unite together to leave the party and intend to cross the floor would incur disqualification unless and until they prove/show that this group formation has been done on split being taken place in the original political party in which a faction has come into being and they are representing that faction in the group of not less than 1/3rd MLAs. . . ( 57 ) THE original political party is also supposed to know the activities of their members in the legislature party and they are not supposed to be taken by surprise that on one fine morning without any intention being disclosed and without there being slightest whisper, they will be losing a group of their mlas because of an intrigue, which would undoubtedly cause turbulence in their political circles and would lower down the image of their original political party, or may be a cause for the fall of their Government if they are in power. It is for this reason that when there is dissension, a split has to take place in the original political party so that the group so formed may seek protection under paragraph 3. The original political party cannot be kept totally aloof from the activities of its members of the legislature party and their actions and activities inside the House. This is in fact for putting a curb upon the elected members from being swayed by different allurement or may be fear or greed, for joining the other party or for crossing the floor by making a group, which is totally in line with the object and purpose of the Tenth schedule. ( 58 ) THIS is also evident by the meaning and intention enshrined in paragraph 3 of the Schedule. Split in the original political party is the first and foremost condition for saving the group of one-third members of the legislature party while representing a faction which has arisen as a result of such split. This can be explained in other words by looking to the provisions with another angle. The provision safeguards and avoids disqualification only if there is a group of one-third MLAs representing the faction arising out of the split. In case a split in the original political party takes place and as a result of which a faction arises, but the group of MLAs are less than the required strength of one-third, they would not be saved nor the provision makes any provision for their defence. It is only when the number reaches one-third that such a group stands protected. It is only when the number reaches one-third that such a group stands protected. This means that if there was no rationale or co-relation with requirement of split in the original political party with the group of one-third MLAs or more, then the condition of split in the party would have been excluded from being applicable to such a group. But the provision says otherwise. This reassures the view that there has to be split in the original political party for avoiding disqualification under paragraph 3 even by a group of one-third MLAs or more. Paragraph 3 of the Tenth Schedule, which is a constitutional provision, has to be read in a manner which gives full meaning and effect to the language used, to achieve the purpose for which it has been enacted. The language used and the words put are plain and simple, which have to be given their normal meaning and cannot be given any restrictive or extended interpretation. Mere crossing of floor by any number of MLAs, may be 1/3rd or more, would not save them from disqualification under paragraph 2 unless all ingredients of paragraph 3 viz. split in the original political party, resulting into the rise of a faction and constitution of a group of not less than 1/3rd MLAs, in the legislative party, representing that faction, are established or shown to have happened. ( 59 ) THE question that whether paragraph 3 and paragraph 4 of the Tenth schedule are the provisions which only relate to a defence which can be taken by the members, who are charged of disqualification or they themselves are the provisions sufficient to claim a declaration/order from the Speaker by the defecting MLAs by making request that their group be recognised or in other words they do not stand disqualified, is another very important facet, in debate. ( 60 ) LOTS of argument and circumstances have been placed from both the sides in support of their pleas in this regard. ( 60 ) LOTS of argument and circumstances have been placed from both the sides in support of their pleas in this regard. The petitioners claim is that paragraph 3 as well as paragraph 4 are only defence available to a member, who has incurred disqualification under paragraph 2 (1) (a) or (1) (b), whereas the respondents strenuously urged that whether there is a disqualification petition or not or a challenge is made raising a question of disqualification of such member (s) or not, he or such other members have got unquestionable right of approaching the Speaker for having a declaration that they do not stand disqualified by their action and that their group be recognised in the house. ( 61 ) IT has also been argued by the respondents that paragraphs 3 and 4 are independent provisions, which would come into play the moment events mentioned therein take place whereas paragraph 2 which deals with the disqualification of members is subject to the provisions of paragraphs 3,4 and 5 of the Tenth Schedule. It is, therefore, being pressed that paragraph 2 which relates to disqualification of members is subservient to the provisions of paragraphs 3 and 4 which are of dominant nature and, therefore, if the provision of dominant nature, which is independent in its character, stands fulfilled, the question of subservient provision being looked into or enquired into would be of no consequence and of no avail, once the ingredients of paragraph 3 or 4, as the case may be stand satisfied. For emphasising that paragraph 2 is subservient to paragraphs 3 and 4 as the former is subject to the provisions of latter, reliance has been placed on the case of Printers (Mysore) Ltd. Vs. M. A. Rasheed and others (2004) 4 scc 460 . ( 62 ) IN the case of Printers (Mysore) Ltd. (supra), the question was raised regarding the interpretation of section 38 wherein the expression subject to the rules was considered and it was held to mean according to the rules, if any. The following cases, which were noticed in the said judgment, have also been placed before us. Reliance has been placed upon paras 19,20 and 21 wherein the case of Ashoka Leyland v. State of Tamil Nadu (2004) 3 SCC 1 has been noticed. The case of P. S. Santhappan (Dead) by Lrs. Vs. The following cases, which were noticed in the said judgment, have also been placed before us. Reliance has been placed upon paras 19,20 and 21 wherein the case of Ashoka Leyland v. State of Tamil Nadu (2004) 3 SCC 1 has been noticed. The case of P. S. Santhappan (Dead) by Lrs. Vs. Andhra bank Ltd. and others, 2004 (11) SCC 672 , was also relied for the aforesaid proposition of law. ( 63 ) THERE cannot be any other way of defining the meaning and import of the phrase subject to the provisions as propounded by the apex court that in which circumstance and for what purpose the phrase has been used in a particular enactment, may have a bearing on its construction. It would be a complete misreading of the provisions of paras 2,3, and 4 if it is interpreted, that if a petition is filed under para 3 or 4, the provisions of para 2 altogether stand excluded from consideration, they being subservient to the dominant provisions of paras 3 and 4. Such an interpretation would militate against the scheme of the Tenth Schedule and would in its entirety negate the role and effect of paragraph 2 (disqualification provision) by making it redundant and of no use, which would bring the two provisions viz. of paragraph 2 on one side and paragraphs 3 and 4 on the other side in direct conflict making the either provision otiose and unreasonable. ( 64 ) THE plain and simple meaning which stands attributed to the aforesaid provision is that paras 3 and 4, would do away the disqualification or in other words, they will avoid the disqualification, which otherwise the member would incur under paragraph 2. ( 64 ) THE plain and simple meaning which stands attributed to the aforesaid provision is that paras 3 and 4, would do away the disqualification or in other words, they will avoid the disqualification, which otherwise the member would incur under paragraph 2. It requires no argument that either it is a matter of disqualification petition moved by any person before the Speaker in which a defence of paragraph 3 or 4 can be taken or even assuming that in the absence of any disqualification petition, the break away group itself moves a petition claiming protection of paragraph 3 or 4 or in third contingency, which may arise because of the conduct of the group of MLAs inside the House which may subject them to disqualification, the Speaker of his own i. e. suo motu can take cognizance of such an event and proceed to decide as to whether such group would stand disqualified in view of paragraph 2 or it stands protected because of the provisions of paragraphs 3 or 4, as the case may be. The Speaker also on information being received under Rule 3 of the 1987 Rules about the formation of a new legislature party (group) can himself require the group or its leader to show and establish that they are not disqualified under paragraph 2, for which also ingredients of paragraph 3 had to be proved. In either of the aforesaid contingencies or events, it is inherent that the Speaker while considering the safeguards under paragraph 3 or 4, which would save the member from being disqualified would require a finding necessarily on the issue of disqualification. What the Speaker in substance would hold is that these members or such members do not stand disqualified because of paragraph 3 or 4. subject to the provisions of paragraphs 3, 4 and 5 a phrase used in paragraph 2 (1) would mean that had the members not being entitled or not being successful in establishing their right of formation of a group or merger in the manner prescribed under the aforesaid provisions themselves, they would have stood disqualified. subject to the provisions of paragraphs 3, 4 and 5 a phrase used in paragraph 2 (1) would mean that had the members not being entitled or not being successful in establishing their right of formation of a group or merger in the manner prescribed under the aforesaid provisions themselves, they would have stood disqualified. ( 65 ) IN this scheme of the aforesaid paragraphs, the question of disqualification of a member and his defence that disqualification would not apply for the reason given above would go side by side and it is a different matter that if the Speaker comes to the conclusion that the conditions having been fulfilled, as given in paragraphs 3 or 4, he may pronounce that the disqualification does not attach to them, and dismiss the disqualification petitions. ( 66 ) IT further flows from the scheme of the Tenth Schedule that the speaker exercises power only under paragraph 6 (1) or so to say, can exercise his powers under the aforesaid paragraph. Paragraph 6 (1) postulates of only one situation that if any question arises as to whether a member of the House is subject to disqualification, the question shall be referred for the decision of the Chairman, or, as the case may, the Speaker of the House and his decision would be final. The occasion to decide the aforesaid question may arise in any one or the other way, in the circumstances narrated in the foregoing paras. It, therefore, can be interpreted that the question before the Speaker can arise for determination as to whether a member of the House has become subject to disqualification under the Tenth Schedule. While dealing with this question, the Speaker shall see that but for the provisions of paragraphs 3 and 4, a member would have to be declared disqualified but if he is entitled to the protection of the aforesaid paragraphs, he be not treated disqualified. If no disqualification can be attached to a member otherwise, he would not stand disqualified under paragraph 2 (1) (a) whether such a member moves any petition under paragraph 3 or 4 or gets a declaration to that effect by the speaker, or not, as in the absence of any disqualification being incurred under paragraph 2, the question of consideration of disqualification or its avoidance under the Tenth Schedule would never arise. In fact, as per the provisions aforesaid, the legal position would be that while determining the disqualification or a defence under paragraphs 3 and 4, as the case may be, both the provisions have to be kept in mind and enquired into by the Speaker. Of course, since the provisions of paragraph 2 are subject to the provisions of paragraphs 3 and 4,in case of establishing the conditions of paragraphs 3 and 4, the fact of disqualification if otherwise it was a disqualification under paragraph 2 would have no place to stand and it would be ousted from being attached to such a member. ( 67 ) IN support of the aforesaid argument, it has been vehemently urged that as soon as atleast 1/3rd members of the legislature party leave their original political party as a result of split and represent the faction which has arisen out of that split, their position becomes fluid in the House and unless their group is recognised by the Speaker, they would not be in a position to participate in the House proceedings and they would also not be in a position to intimate the Speaker as to who would be their leader in the House and all consequential actions which otherwise are to be taken by the leader. It is for the smooth functioning of the House in which the newly formed group may have its own seating arrangement and its own leader, the necessity of recognition being granted to such group is inherent in the House proceedings for which the Speaker is the only competent authority and, therefore, paragraphs 3 and 4 do bestow power upon the Speaker to recognise the splinter group even without considering the plea of their disqualification, either raised or not ( 68 ) IT has further been urged that while dealing with the petition under paragraphs 3 and 4 of the Tenth Schedule, the Speaker is not exercising its powers under paragraph 6 (1) but by virtue of his authority to recognise such a group, he has power to proceed under these two provisions independently of any other provision under the Tenth Schedule. Recourse was also taken to the 1987 Rules in this regard, which would be dealt with after a short while. Recourse was also taken to the 1987 Rules in this regard, which would be dealt with after a short while. It is no gainsaying that the Speaker has the responsibility of smooth functioning of the House and consequently he has full powers to do under the legal framework whatever is desired for such running of the House. This also casts responsibility upon the Speaker to see that the government is not destabilised and defections are not protected in case the defectors have incurred any disqualification and also whether such disqualification stands avoided. ( 69 ) THESE are the broad features of the Speakers functioning, relevant for the purposes of the case and, therefore, the court cannot be oblivious of the aforesaid requirement. In regard to the power of the Speaker to act, proceed and take a decision under any of the provisions of the Tenth Schedule or for the purpose of Tenth Schedule, paragraph 6 (1) is the only provision which confers power upon the Speaker, to act under Tenth Schedule. Sri Rakesh Dwivedi, learned counsel for the respondents, has not been able to indicate any other provision except paragraph 6 (1) under the Tenth schedule under which the Speaker can either take cognizance of any complaint of disqualification or of a claim made under paragraph 3 or 4. It would be too speculative and beyond the legislative intent of the Tenth schedule to accept the plea that paragraph 3 and 4 both inherently and of their own give independent powers to the Speaker to make a declaration in favour of the MLAs, who have left their original political party voluntarily recognising their group or merger, apart from the power conferred under paragraph 6 (1 ). ( 70 ) PARAGRAPHS 3 and 4, both are the provisions, which say that disqualification on ground of defection not to apply in the cases of split and merger respectively. What the Speaker can do under the aforesaid provisions is that he can hold that MLAs do not stand disqualified. The aforesaid two clauses, nowhere either speak of the recognition being granted to the group or to the merger by the Speaker by giving declaration to that effect nor it has been stated that an application under paragraph 3 or 4 would be moved before the Speaker, nor such a provision exists even under 1987 Rules. The aforesaid two clauses, nowhere either speak of the recognition being granted to the group or to the merger by the Speaker by giving declaration to that effect nor it has been stated that an application under paragraph 3 or 4 would be moved before the Speaker, nor such a provision exists even under 1987 Rules. The Rules of 1987 may be directory in nature and may not give cause of judicial intervention in an order passed by the Speaker in breach of the said rules, not being constitutional enactment or mandate but for the limited purpose to find out the real scope of the powers of the Speaker under paragraphs 2,3 and 4 of the Tenth Schedule, reference can also be made to the provisions of Rule 9 of the 1987 Rules, which lays down as to what orders can be passed by the Speaker on considering the applications for disqualification. Rule 9 lays down as under:"9. (1) At the conclusion of the consideration of the petition, the speaker, or, as the case may be; the member elected under the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule shall by order in writing:- (a) dismiss the petition, or (b) declare that the member in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule, and cause copies of the order to be delivered or forwarded to the petitioner the member in relation to whom the petition has been made and to the leader of the legislative party, if any, concerned. (2) Every decision declaring a member to have become subject to disqualification under the Tenth Schedule shall be reported to the house forthwith if the House is in session and if the House is not in session, immediately after the House re-assembles. (3) Every decision referred to in sub-rule (1) shall be published in the Bulletin and notified in the Official Gazette and copies of such decision shall be forwarded by the Secretary to the Election commission of India and the State Government. " ( 71 ) THIS is in consonance with the provisions of the Tenth Schedule, which are provisions as to disqualification on grounds of defection. " ( 71 ) THIS is in consonance with the provisions of the Tenth Schedule, which are provisions as to disqualification on grounds of defection. In essence what is to be seen in the Tenth Schedule is as to whether a member has incurred any disqualification on grounds mentioned under paragraph 2 and if the act of a member makes him subject to disqualification, he can still avoid disqualification by taking recourse to the provisions of paragraph 3 or 4 or both of them, as the case may be. The scheme of Tenth Schedule does not in specific terms or even impliedly envisage for seeking any declaration by those who have crossed the floor but, of course, in a petition for disqualification moved by any person a plea can be raised by them, taking recourse to the aforesaid provisions. In case such a plea is taken, it presupposes that but for the said plea (s), the member stands disqualified under either of the provisions of paragraph 2. Paragraph 2, namely, disqualification of a member and paragraphs 3 and 4 cannot be wholly separated from each other as unless there is disqualification, there cannot be any question of avoiding the disqualification. The disqualification would not come in the way of the member, if he establishes his claim either under paragraph 3 or paragraph 4. The Rules do not provide any mechanism or procedure for moving a declaratory petition, seeking recognition of the group under either paragraph 3 or paragraph 4. ( 72 ) TENTH Schedule basically is a constitutional provision laying down the disqualification which an MLA would incur either by leaving his original political party voluntarily or by going against the whip by casting the vote or by abstaining from casting the vote. The purpose of the provision is to create a deterrent for the MLAs from being disloyal to their party for some instant or ulterior gains and not to pollute the democratic polity. While providing for disqualification, it also gives defence or protective umbrella to a group of mlas if they can avoid their disqualification by following the conditions enumerated in paragraphs 3 or 4 of the Schedule. While providing for disqualification, it also gives defence or protective umbrella to a group of mlas if they can avoid their disqualification by following the conditions enumerated in paragraphs 3 or 4 of the Schedule. The object and purpose of the Tenth Schedule is to curb the menace of defection and put a check upon unprincipled and unhealthy alliances, which has nothing much to do with the constitutional philosophy of formation of the Government except that in a case of honest dissension which is reflected by the number of MLAs, who defect, the role of such MLAs in the formation of the Government may be of relevance but if they incur disqualification, they cannot stand protected because they bonafide intended to protect or form the Government by giving their assistance in formation so as to avoid mid-term poll or imposition of the president rule. ( 73 ) THE theory of fluid state of the splinter group in the House unless recognised by the Speaker does not appear to be in conformity with the practice and procedure in the House with respect to the seating arrangement being made by the Speaker in respect of a political party, namely, the new group or in the matter of choosing their leader in the House, as defined in Rule 2 sub clause (f ). ( 74 ) THE plea has to be considered keeping in mind the two aspects, namely, whether the claim of forming a group because of the split in the original political party is being disputed by any person including the original political party and if not, their status in the House. In a case where a group is said to have been formed because of the split in the original political party representing the faction arising out of such split and no person takes exception to this claim, mere intimation of the said fact and the name of the leader of the group to the Speaker under Rule 3 may be sufficient compliance and requirement for the purpose, even though the Speaker for satisfying himself may require the group or its leader to establish the split and the necessary requirement for the formation of the group and thereby to show cause against their disqualification arising under paragraph 2. However, in case, the split in the original political party, the formation of the faction and constitution of the group, particularly of the required strength, are disputed by any person including the original political party or a disqualification petition is moved against the members of such group, the speaker would have to determine the aforesaid question in accordance with the Scheme of the Tenth Schedule. But mere participation in the proceedings of the House by forming a group on the ground of alleged split and choosing their leader would not in any way protect such member (s), if they have incurred any disqualification under paragraph 2 (1) (a) or (1) (b ). Rule 3 of the 1987 Rules has been pressed into service to buttress the aforesaid submission that the leader of the each legislature party has to submit within 30 days from the date of first meeting of the House certain particulars to the Speaker, as given in sub-clauses (a) (b) (c) and (d), wherein sub-clause (d) provides for furnishing of a copy of the constitution and the rules (by whatever name called) of such legislature party and of the political party to which to which its members are affiliated. This period of thirty days starts in case where the legislature party is formed after the first meeting of the House from the date of its formation, which period can be extended by the Speaker on sufficient cause, and in the absence of such recognition, this requirement of rules would not be fulfilled. Rules of 1987 are not the constitutional mandate nor they can be raised to the pedestal of constitutional provisions, as declared by the apex court, when they are breached in the matter of consideration of disqualification or its defence, which questions are to be considered in the light of the constitutional provisions, namely, the Tenth Schedule. It has been found in Ravi Naiks case that the breach of the Rules or not following the Rules of 1987, namely, intimating the split to the Speaker within a given time or like matters would not be conclusive to hold that either the split has not taken place or the same would be bad for want of information being given to the Speaker within a given time. Thus for all proceedings and purpose, in the House a newly formed legislature party, which has been formed after the date of first sitting of the House, has a right to choose its own leader of the party and to inform the said fact to the Speaker who would discharge functions of the leader of the party in the House. Under these Rules, there is no provision so as to require the Speaker to give any recognition to such newly formed legislature party but such legislature party, from the date it comes into existence, has an independent identity against its original political party and all other parties unless it merges with any other political party. ( 75 ) THEREFORE, so far as the status of the newly formed legislature party is concerned, in regard to the choosing of the leader and its participation in the house, there cannot be any doubt about its existence but it would not mean that if they have incurred disqualification under paragraph 2, that would stand wiped out. If an MLA shows extraordinary courage and takes risk of incurring disqualification, he cannot be stopped from doing so but he cannot save himself from the consequences of such utterly unwise bravery. An MLA honestly feeling suffocated in his original political party, may resign without any expectation of getting any office by joining any other party but those who leave the party voluntarily under the pretence of strengthening the government to be formed by a rival party but are desirous of enjoying the privileges and honour of the Ministerial berths and other high offices have to wait and see that they proceed with their goal in a calculated manner as per scheme of the Tenth Schedule so as to avoid disqualification. ( 76 ) THE provisions of the Tenth Schedule or the Rules of 1987 nor any other provision of the Constitution has been read before us to reinforce the submission that unless the recognition is given to the splinter group, their position would be fluid and would not be allowed to participate in the proceedings of the House. ( 76 ) THE provisions of the Tenth Schedule or the Rules of 1987 nor any other provision of the Constitution has been read before us to reinforce the submission that unless the recognition is given to the splinter group, their position would be fluid and would not be allowed to participate in the proceedings of the House. It is a different issue that unless such a group assures the political party to which it intends to lend support that they would not be declared disqualified, the party in whose favour they leave their original party, may not reward them by giving prestigious offices or posts and for that matter an immediate declaration to that effect be needed. But this eagerness to show that disqualification stands wiped of in terms of paragraph 3 or 4, as the case may be, has to be taken as a propelling force for getting the disqualification petitions decided, if moved, instead of seeking a recognition of their group under the provisions of Tenth Schedule. However, in the absence of any such recognition being given by the Speaker to the newly formed group, its members would not be divested of their right to choose their leader. ( 77 ) THE incurring of disqualification under any of the provisions of paragraph 2 and avoiding the said disqualification by taking recourse to paragraph 3 or 4, as the case may be, are such issues which would not stand diluted or wiped of, by the subsequent action of the members of the group, but their fate would depend upon the decision of the disqualification petitions. In the case of Rameshwar Prasad and others Vs. Union of India and another, (2006) 2 SCC 1 , the plea that there was a possibility of incurring disqualification under the Tenth Schedule if the MLAs belonging to LJP Party had supported the claim of Nitish Kumar to the form the Government was not accepted by the apex court saying that it was wholly extraneous to take into consideration that some of the members would incur the disqualification if they supported a particular party against the professed stand of the political party to which they belonged. The intricate question as to whether the case would fall within the permissible category of merger or not, could not be taken into consideration. The intricate question as to whether the case would fall within the permissible category of merger or not, could not be taken into consideration. Assuming that it did not fall in the permissible area of merger and the MLAs would run the risk of disqualification, it is for the mlas or the appropriate functionary to decide and not for the Governor to assume disqualification and thereby prevent the staking of the claim by recommending dissolution. ( 78 ) THE disqualification petition thus would decide the fate of the MLAs. Further an MLA incurs disqualification if he votes against the mandate of original political party or abstains from voting, but if a member intends to do so, he has every right to do so. The Speaker cannot stop him to cast his vote nor his vote would be invalid, but the effect of such disobedience would be disqualification of the member subject to the same being condoned by his political party. ( 79 ) IT is therefore, obvious that a member may incur disqualification under paragraph 2 (1) (a) or (b) by his conduct or action but his action cannot be stopped. It is a different matter that he would stand disqualified from the date when he committed any one of the acts otherwise prohibited under the Tenth schedule. ( 80 ) THE orders passed by the Speaker impugned in the writ petition and the manner in which the Speaker proceeded in passing the aforesaid orders and the procedure adopted are thus liable to be decided on the aforesaid principle emanating from the Tenth Schedule itself. The next question which has been argued with full zeal from both the sides is that whether disqualification as given paragraph 2 (1) (a) is self inflicting or, in other words, automatic on the date of the event itself or on the date of happening of the event or unless the matter is decided and the Speaker declares him disqualified, he would not be treated as disqualified nor the disqualification would be deemed to have occurred nor he will become subject to disqualification. ( 81 ) THE apex court in the case of Mahachand Prasad Singh (Dr) v. Chairman, Bihar Legislative Council and others, (2004) 8 SCC 747 had an occasion to consider that the petitioner, who was elected as a member of the bihar Legislative Council (MLC) from Tirhut Graduate Constituency as a candidate of Indian National Congress, when contested the election of 14th lok Sabha in March, 04 from Maharajganj constituency as independent candidate has incurred disqualification under paragraph 2 (1) (a) of the schedule, on a petition being moved by a member of the Bihar Legislative council to the Chairman attributing the said disqualification to the said member. The Supreme Court after looking to the historical background in which Tenth Schedule was added to the Constitution including the dictum of the Kihoto Hollohans case considered the relevant provisions of the Tenth schedule of the Constitution including paragraphs 1,2 and 6. ( 82 ) THE Supreme Court observed that paragraph 2 of the Tenth Schedule lays down the contingencies under which a member of the House belonging to any political party shall be disqualified for being a member of the House and they are enumerated in sub-paras (1) (2) and (3 ). Sub-para (2) deals with a situation where a member of the House elected as an independent candidate joins any political party after such election and sub-para (3) deals with a situation where a nominated member of the House joins any political party after the expiry of six months from the date on which he takes a seat. Sub-para (1) deals with a situation where a member of the House belonging to any political party voluntarily gives up his membership of such political party. It also deals with a with a situation where he votes or abstains from voting in the house, contrary to any direction issued by the political party to which he belongs, without obtaining prior permission of such political party and such voting or abstention has not been condoned by such political party within fifteen days from the said voting or abstention. ( 83 ) THE apex Court further held as under: -"the scrutiny of the provisions of sub-para (2) would show that a member of a House belonging to any political party becomes disqualified for being a member of the House if he does some positive act which may be either voluntarily giving up his membership of the political party to which he belongs or voting or abstention from voting contrary to any direction issued by the political party to which he belongs and in the case of an independent or nominated member, on his joining a political party. "the Court further observed that on a plain language of Paragraph 2, the disqualification comes into force or becomes effective on the happening of the event. Paragraph 4 is in the nature of an exception to Paragraph 2 and provides for certain contingencies when the rule of disqualification will not apply in the case of merger of political parties. The Supreme Court also observed as under:"paragraph 6 says that where any question arises as to whether a member of the House has become subject to disqualification under the schedule, the same shall be referred for the decision of the Chairman or, as the case may be, the Speaker of the House and his decision shall be final. Therefore, the final authority to take a decision on the question of disqualification of a member of the House vests with the chairman or the Speaker of the House. It is to be noted that the Tenth schedule does not confer any discretion on the Chairman or Speaker of the House. Their role is only in the domain of ascertaining the relevant facts. Once the facts gathered or placed show that a member of the House has done any such act which comes within the purview of sub-paragraph (1), (2) or (3) of Paragraph 2 of the Tenth Schedule, the disqualification will apply and the Chairman or the Speaker of the house will have to make a decision to that effect". ( 84 ) THE point of time from which the disqualification would be effective or would come into play is the date on which the event takes place. ( 84 ) THE point of time from which the disqualification would be effective or would come into play is the date on which the event takes place. This means that if a member of the legislature party leaves his original political party voluntarily on a particular date then he would incur disqualification from that very date and if such a question is referred to the Speaker for determination, he would have no discretion but to ascertain the relevant facts and pronounce that the member had become disqualified. However, in case the Speaker finds that the member is entitled for protection of paragraphs 3 or 4, he would pronounce as such. ( 85 ) SRI Rakesh Dwivedi has made an attempt to distinguish the aforesaid case on the ground that firstly it was not a case under paragraph 3 of the Tenth schedule and was a case under paragraph 4 in which, nature and degree of enquiry to be made by the Speaker differs. Further since the date from which a member becomes disqualified was not directly in issue, therefore, observations made by the apex court are neither determination of an issue arising between the parties nor even an obiter, as no reasons have been given for such an observation. ( 86 ) THE Supreme Court was considering the question of disqualification in paragraph 2 of the Tenth Schedule and, of course, a case under paragraph 4 of the Schedule also. The date of incurring disqualification or member becoming subject to disqualification cannot be said to be not in issue at all and in particular when the Court was examining the Scheme of Tenth Schedule including paragraph 2. The scope and the nature of enquiry in a case where ingredients of para 3 are put into service as against the case where ingredients of paragraph 4 are placed, may require different degrees of enquiry but the nature of enquiry would not at all be relevant for the purpose of determining the date of disqualification of a member. The disqualification in either case where paragraph 3 or 4, are sought to be attracted still has to be judged under the provisions of paragraph 2, which is the only provision for disqualification. The disqualification in either case where paragraph 3 or 4, are sought to be attracted still has to be judged under the provisions of paragraph 2, which is the only provision for disqualification. In case his defence falls, it would be the date of happening of the event and not any subsequent date and the phrase used in para 2 (1) (a) that the member shall be disqualified is only an answer to the question which is raised before the Speaker under paragraph 6 (1) in which he exercises his jurisdiction as a tribunal but he would not be having any discretion to change the date of disqualification to any other date than the date of the happening of the event nor one can say that it is the date on which the Speaker passes the order of disqualification to be the date of incurring disqualification. In essence the order passed by the Speaker is no more than a formal order of the disqualification of the member of the House to which he had become subject to on the date he left his original political party voluntarily. This will also be a appropriate harmonious construction of the ambit of paragraph 2 and paragraph 6 (1 ). Any other meaning would negate the plain and clear language and intention of paragraph 2. ( 87 ) THE alternative plea of the respondents is that Ravi Naiks case dealt with a situation where not only the disqualification orders passed in respect of the two MLAs were stayed in the writ petition filed by them but also the fact that when their petitions stood dismissed finally by the High Court, the supreme Court while upholding their disqualification in the appeal of Ravi naik did not record a finding that because of the dismissal of the writ petitions, the disqualification, attached to the aforesaid two MLAs would date back to the happening of the event and,therefore, they could not have been counted for the purpose of knowing the strength of the group. The argument is based on mere assumption, as a reading of the judgment in Ravi Naiks case, it makes abundantly clear that the question as to from what date the disqualification would become operative was neither an issue nor was at all considered by the Court. The argument is based on mere assumption, as a reading of the judgment in Ravi Naiks case, it makes abundantly clear that the question as to from what date the disqualification would become operative was neither an issue nor was at all considered by the Court. ( 88 ) DRAWING inference from the facts of a case on which no finding has been recorded nor even any observation has been made may not be a safe methodology, while interpreting the statutory enactments and more so, the constitutional provisions. Ravi Naik was a case where on the date of the passing of the order by the Speaker, the disqualification order of the two mlas was in abeyance by virtue of the interim order of stay passed in the writ petition filed by them and, therefore, while judging the validity of the aforesaid order, the Supreme Court unequivocally observed that the interim order passed by the High Court ought to have been given due respect. A judgment of the apex court would be a binding precedent in respect of the findings recorded, decision given and the observation made, even if they are obiter but if neither there is any obiter nor there is any observation nor the issue was considered and decided, if a question arises which did not fall within the consideration of the apex court, it has to be considered in the light of the statute or the constitutional provisions under which the matter is to be considered. "nevertheless it is a real distinction which will best be appreciated by remembering that, when interpreting a statute, the sole function of the court is to apply to the words of the statute to a given situation. Once a decision has been reached on that situation, the doctrine of precedent requires us to apply the statute in the same way in any similar situation; but not in a different situation. Whenever a new situation emerges, not covered by the previous decisions, the courts must be governed by the statute and not by the words of the judges. Each case must be brought back to the test of the statutory words. Whenever a new situation emerges, not covered by the previous decisions, the courts must be governed by the statute and not by the words of the judges. Each case must be brought back to the test of the statutory words. If a point should be reached where the words of the judges lead to a different result from the words of the statute, then the statute must prevail: because the judges have no right to supplant the words of the statute and would not wish to do so. " (See Paisner and others v. Goodrich, 1955 (2) All England reports 330) ( 89 ) THE point of time from which the disqualification would incur under the conditions enumerated in paragraph 2 (1) (a) has been specifically considered and decided for the first time in the case of Mahachand Prasad singh (supra ). In the absence any such question having arisen in Ravi Naiks case nor having been decided, it cannot be presumed that it is intrinsically ingrained in the said judgment, since the apex court considered the appeal of ravi Naik at a time when the writ petition filed by the two MLAs stood dismissed. ( 90 ) IN the light of the aforesaid factual and legal position, the plea of the petitioner that mere counting of heads on 6th September,03 of the group in question was neither legal nor justified nor was backed by any provision of law nor was the only constitutional requirement to be looked into. This will also require the consideration of the two alternative pleas raised by Sri Rakesh dwivedi regarding the time of split in the original political party and the formation of the group of the members of legislature party representing the faction arising out of such split. This will also require the consideration of the two alternative pleas raised by Sri Rakesh dwivedi regarding the time of split in the original political party and the formation of the group of the members of legislature party representing the faction arising out of such split. Sri Dwivedi has taken a stand that a split in the original political party took place on 26th August,03 and that on that very date the group was formed consisting of 37 MLAs and even if it is found that the group of requisite strength could not be formed on one single day i. e. 26th August,03 but the same was formed within a reasonable time, namely, 8 or 9 days but before the claim was made before the Speaker, the approach of 13 MLAs to the governor requesting for inviting the leader of another political party in opposition, Sri Mulayam Singh Yadav, to form the government would not be a case of disqualification. ( 91 ) THERE is a specific case of the petitioner that on 26th August,03, no meeting was held of the original political party wherein any split had taken place. For this, apart from the averments made in disqualification petitions filed on 4. 9. 03, reliance has also been placed upon the averments made in the caveat petition filed on 5. 9. 03 and also on the rejoinder filed against the written statement filed by the respondents to the disqualification petition coupled with the plea that on the aforesaid date only 13 MLAs can be said to have splitted out to form a group, who by virtue of their conduct incurred disqualification and as such they could not have been included in the alleged other splinter group of 24 MLAs, constituted later in point of time. It has also been urged by the petitioner that in the application dated 6. 9. 03, a copy of which is reproduced in the order of the Speaker dated 6. 9. 03 it was nowhere said that the group of 37 MLAs have been formed on 26th August,03 but as a matter of fact it says that let there be a split and faction be formed. 9. 03, a copy of which is reproduced in the order of the Speaker dated 6. 9. 03 it was nowhere said that the group of 37 MLAs have been formed on 26th August,03 but as a matter of fact it says that let there be a split and faction be formed. ( 92 ) THE submission, therefore, is that from the own applications of the respondents it was sufficiently clear that in fact no split in the original political party had taken place on 26th August,03 and at best it can be taken to be a decision for split at some later point of time, and even if it is taken as correct that the split had taken place on that date, then only 13 MLAs parted ways, who immediately on the next day went to the Governor. That being so, the disqualification petitions ought to have been decided at the earliest and in any case alongwith the petitions moved by the private respondents. By not doing so, the Speaker committed not only the gross procedural irregularity but he acted absolutely in violation of the principle of natural justice and against the scheme of the Tenth Schedule resulting into irreparable prejudice to the cause of the petitioner, who was representing the original political party. The admitted fact of 13 MLAs sitting with ruling party on 2. 9. 03, while rest 24 of the alleged same group sat with the BSP MLAs and on objection being raised by the Deputy Leader Sri Jagdish Rai, no indication being given by the group including Rajendra Singh Rana, their leader, about the split in the original political party or the formation of the group of one-third members till then, thus, according to the petitioner, establishes that the entire story set up by the 37 MLAs was a total farce, and concocted, with no basis, for which even no prima facie proof was furnished before the Speaker, nor could be placed before this Court, despite specific pleas being taken throughout by the petitioner, which establishes beyond doubt that the Speaker wilfully shut his eyes while testing the claim of split and formation of group, which vitiates the orders. ( 93 ) HAVING regard to the case of either side and keeping in mind the provisions of Tenth Schedule and having found that paragraphs 3 and 4 of the tenth Schedule cannot be taken to be separate and independent to paragraph 2 and the power of the Speaker to decide such a question arises only out of the provisions of paragraph 6 (1) and that in case a member of the legislature party, namely, MLA becomes subject to disqualification that disqualification would date back to the date of event, the manner in which the Speaker had proceeded with and the entire decision making process adopted would be a fully relevant consideration for deciding the controversy involved. ( 94 ) THE Speaker has not given any finding in regard to the split in the original political party and contented himself merely by saying that a split is a matter which takes place outside the House and it is not necessary for him to record a finding to that effect. While doing so, relying upon the case of Ravi naik, he has stated that since a claim has been made regarding split in the original political party and there are 37 MLAs present in person duly identified, therefore, no finding is required to be recorded regarding split. This finding is sought to be supported by Sri Rakesh Dwivedi by urging that the group of 37 MLAs which reflected 1/3rd members or more of the legislature party and they being the members of the original political party also was sufficient to infer split in the original political party. The distinction between the original political party and the legislature party and their relevance in the matter of split has already been discussed separately in the earlier part and, therefore, this plea cannot be accepted. Even otherwise, the Speaker has not recorded any such finding which is being pressed by Sri Dwivedi and only it is an inference which is being sought to be drawn on facts. The court is not supposed to substitute its own finding or to defend an order by taking into account the probable finding which though not recorded but could have been recorded. The orders are to be scrutinised in the light of the reasoning given therein and cannot be made valid by improving them either by filing affidavits or otherwise. The court is not supposed to substitute its own finding or to defend an order by taking into account the probable finding which though not recorded but could have been recorded. The orders are to be scrutinised in the light of the reasoning given therein and cannot be made valid by improving them either by filing affidavits or otherwise. (See Commissioner of Police, bombay v. Gordhandas Bhanji, AIR 1952 SC 16 and Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 627 ). ( 95 ) IN regard to the factual aspect whether the group of requisite number was formed on 26th itself or it was formed in passage of time, as argued by Sri dwivedi, the date of disqualification, which a member may incur is of relative significance. The plea of the petitioner is that the requisite group of 37 MLAs was not formed on 26th August, 03 and that there was only a small splinter group of 13 MLAs, who had met the Governor on 27th August, 03 requesting him for inviting the leader of an opposition party for being sworn in as Chief minister. Whether such a conduct of 13 MLAs make them disqualified was to be considered and decided by the Speaker. The plea of the petitioner which he has specifically raised in his disqualification petitions as well as in the caveat petition and also at the time of hearing, howsoever inadequate the hearing was, could not have been ignored by the Speaker simply on the head count of the MLAs on the date they moved application under paragraph 3 and 4. In case the aforesaid plea raised in the disqualification petitions had been considered and if the Speaker had come to the conclusion that these members had incurred disqualification or have become subject to disqualification, the said disqualification would have related back to the date of event i. e. 27th august, 03 and thereafter they could not have been included in the group of 24 MLAs, who subsequently formed a group to make them 37, and these 24 mlas also would have stood disqualified, from the date they left the party. ( 96 ) IT is no more res integra that for leaving the original political party voluntarily, a member of the legislative party has not to formally resign from the party but his voluntary renunciation of the party can be inferred by any overt act including meeting with the Governor for requesting him to invite the leader of opposition to form the Government and to make him the Chief minister (See Ravi Naik, Narsinghrao Gurunath Patil and Mahachandra prasad Singh)In the case of Mahachandra Prasad Singh (supra), the Court noticed the observations made in paragraph 11 of the Ravi Naiks case, wherein the scope and amplitude of paragraph 2 (1) (a) was explained as under: "the said paragraph provides for disqualification of a member of a house belonging to a political party if he has voluntarily given up his membership are not synonymous with resignation and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. " the Bench quoted paragraph 11 of the Report in which it was observed that even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. ( 97 ) IN G. Vishwanathan vs Honble Speaker T. N. Legislative Assembly, (1996) 2 SCC 353 , the apex court was considering the disqualification of leaving the original political party voluntarily of a member who is given the label of "unattached member". The court found that the label of "unattached member" does not save the member from disqualification under Tenth schedule and in arriving to such conclusion it found that the deeming fiction must be given full effect which was intended to curb the evil of defection. The court found that the label of "unattached member" does not save the member from disqualification under Tenth schedule and in arriving to such conclusion it found that the deeming fiction must be given full effect which was intended to curb the evil of defection. The 13 MLAs in this case, in which Sri Rajendra Singh Rana himself was present, had met the Governor on 27th August,03 and though it has been argued by the learned counsel for the respondents that after split in the original political party and forming of the faction and constitution of the group, if only 13 out of 37 MLAs had gone to meet the Governor wherein they did not disclose about any such happening having taken place on 26th August,03 and in particular formation of the group of 37 MLAs, it would not in itself be conclusive to hold that the entire group was not formed on one and the same day simply because there was no whisper about these facts in the letter to the governor, as it was not the function of the Governor to see as to whether the mlas who have come forward have formed any group of 37 MLAs or not for which reliance has also been placed upon the case of Bihar Assembly dissolution case in re: Rameshwar Prasad (supra ). ( 98 ) THE question as to whether by forming a group by leaving their original political party, the MLAs would incur disqualification would be a separate issue which would not come in the way of the MLAs if they proposed to do so. In case by doing so i. e. by forming a group they incur disqualification under paragraph 2 they would run the risk of being disqualified from the date they leave their original political party voluntarily. Here it may be worth-while to mention the role of Speaker when a disqualification petition comes before him and in a race against urgency and importance because of the fact that splinter group has been formed to extend its support to the leader of another political party other than their original political party from which they had contested the election, the matter has to be decided expeditiously and promptly and without any delay and if possible before the leader so appointed as Chief Minister is required to show his strength on the floor of the House. This expediency would give discretion to the Speaker and play in the joints, in following the Rules of Procedure which provide certain period of time for filing objection and proceeding in the matter and thus to decide the question of disqualification at the earliest but not without affording opportunity to the parties concerned, and also not without considering the case of both the parties nor by totally ignoring the claim of one of the parties, as in the instant case, where the constant cry of the original political party, which was represented by Sri Swami Prasad Maurya, could not move the Speaker for hearing the disqualification petitions. ( 99 ) THE proceedings before the Speaker, are not proceedings like the law courts, and, therefore, should be concluded expeditiously, by following the principles of natural justice. In response, it has also been submitted by the learned counsel for the petitioner that the MLAs were fully aware about the provisions of the Tenth schedule and in case factually and actually any meeting had taken place in which the office bearers, the members and the MLAs participated and resolved for a split in the original political party and formed a faction and constituted the group, the said fact could not have been missed from being mentioned in the letter to the Governor as every person of ordinary prudence would have brought them to the fore, to avoid even any futile attempt of holding them disqualified. The question as to whether any such meeting was held on 26th August,03 and whether a group of only 13 MLAs splitted out on that date and the reason for not disclosing this fact to the Governor are all such questions, which ought to have been considered by the Speaker. In the absence of any decision being given by the Speaker, it is not for the Court to record any finding on such issues. It is, however, aptly clear that in case the plea of the petitioner was accepted by the Speaker after consideration, the fate of other 24 MLAs would have been otherwise. In the absence of any decision being given by the Speaker, it is not for the Court to record any finding on such issues. It is, however, aptly clear that in case the plea of the petitioner was accepted by the Speaker after consideration, the fate of other 24 MLAs would have been otherwise. ( 100 ) THE argument of the respondents that assuming that the entire group was not formed on 26th August, 03 but it was formed slowly and gradually within a space of time which was neither unreasonably long nor was there any break in continuity of the events, the formation of such group by snowballing would not attract disqualification, as given in Tenth Schedule, ignores the factual and legal position that Tenth Schedule itself has come into existence for prohibiting and putting an end to the piecemeal defections. In Kihoto hollohan while considering the validity of the Tenth Schedule, the apex court rejected the argument that if floor-crossing by one Member is an evil, then a collective perpetration of it by one-third of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences. The court considered the aforesaid argument and observed as under:"the underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed. Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. At the same time legislature envisaged the need to provide for such "floor-crossing" on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bona fides. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between defection and split. " . ( 101 ) THE plea that whether the split has to be instantaneous, one time event or within a pace of time was left open from being decided in Kihotos case with the observation that the meaning to be given to split must necessarily be examined in a case in which the question arises and in the context of its particular terms. ( 102 ) THERE can be split and a faction may arise out of that split at a given point of time but the group representing the aforesaid faction in the legislature party may arise instantaneously as one time event or in a reasonable interval or within a pace of time. If the group is formed instantaneously of the requisite strength of the MLAs, that would obviously stand protected under paragraph 3 of the Schedule and would avoid disqualification under paragraph 2; In a case where the aforesaid group is formed within a period of time at some intervals, but does not open itself as a group during formation of the group or constitution of the group, and no member of the legislature party (MLA) thus leaves the original political party by any overt act either expressly or otherwise, till the formation of group of requisite number, such members would not incur disqualification, but in case any member does so, he would incur disqualification. It is a different matter that after the faction is formed on the split of the original political party, the members of the Legislative assembly, give a thought to it and take some time in reaching to a decision that they should now represent a faction arising out of the split instead of the original political party and for that matter if they reach the requisite number gradually and they leave the original political party only when they reach the required number; in such a situation apparently there would be no attachment of disqualification to the members of such group but in a case where on split being alleged in the original political party and faction having been formed, a group of MLAs (legislature party) who are less than the requisite strength of 1/3rd by their conduct, act or otherwise leave the original political party voluntarily, they would become subject to disqualification under paragraph 2 and would no more be available for completing the group of requisite number of MLAs, subsequently at a later point of time. Since the disqualification will date back to the happening, it was very crucial in the instant case, to find out as to whether 13 MLAs incurred disqualification on 27th August, 2003 and, therefore, they were no more available for the rest of the group of 24 MLAs in their own group. Since the disqualification will date back to the happening, it was very crucial in the instant case, to find out as to whether 13 MLAs incurred disqualification on 27th August, 2003 and, therefore, they were no more available for the rest of the group of 24 MLAs in their own group. In case any other interpretation is given to paragraph 3 of the Tenth schedule and snowballing and piecemeal defection is allowed or is taken to be protected under paragraph 3, it would lead to the situation which was prevailing in the pre Tenth Schedule era. Applying the mischief rule, the causes of the addition of Tenth Schedule to the Constitution, the mischief which it intended to undo and the remedy provided has to be considered. It cannot be lost sight of, that this individual or defection in small groups was the main cause of anxiety for a healthy democratic system where there were multiple political parties. Interpreting a provision of the Constitution, which may defeat its very purpose, would not be in consonance to the principle of interpretation. Accordingly, it was incumbent upon the Speaker to record findings on the aforesaid issues either way after giving reasonable opportunity to the parties and not to postpone the hearing of the disqualification petitions and to decide the applications allegedly moved under paragraph 3 and 4 of the schedule independent of the petitions of the disqualification. ( 103 ) THE plea of the petitioner that the group was not formed on 26th august, 03 apart from 13 MLAs, who met the Governor also is being sought to be supported by the circumstances that on 2. 9. 03 these 13 MLAs sat on the opposition benches whereas rest 24 who are said to be part of the same group sat on the treasury benches. It is being argued that the seating arrangement in the House is done by the Speaker for the political parties and may be any reason which may be given by the respondents, it is difficult to accept that the members of the opposition would sit on the Treasury Benches. It is being argued that the seating arrangement in the House is done by the Speaker for the political parties and may be any reason which may be given by the respondents, it is difficult to accept that the members of the opposition would sit on the Treasury Benches. The submission of the petitioner is that in case on 26th August,03, a group of 37 had been formed then these 24 MLAs would have also sat with the ruling party and that the explanation given by the respondents that since it was a day of condolence, therefore, this seating arrangement was made would not be of any assistance in the controversy involved, is an argument which would have been considered by the Speaker. The Speaker is an expert of the House procedure and, therefore, could have shown under any Rule or otherwise in practice, that on the day of condolence, such a change in seating arrangement can happen, and the members of Treasury Benches would invite and reconcile with the opposition members, at least for the purposes of sitting in the House. The affidavits filed by the three MLAs, namely, Sri Ram Maurya, Sri dhoo Ram and Sri Ramesh Chand Bind, who were said to be the persons present in the meeting of 26th August,03 wherein the split has taken place and faction is formed refuting the said happening and the letters of the two MLAs mr. and Mrs. Lari, given to the Governor, namely, husband and wife saying that they were kept under threat and coercion, were the issues which would have been subjected to scrutiny by the Speaker in case the petitioner was afforded an opportunity and the disqualification petitions were considered or the question of disqualification was decided. ( 104 ) THE plea that all such evidence has been brought on record after two years of the passing of the order by the Speaker and, therefore, they are not credit worthy is being answered by the petitioner by saying that there arose no occasion for the petitioner to take all the specific pleas, as on day one when the respondents moved their application for recognition of the group and their merger, the same were decided within a short span of three hours without there being any opportunity to the petitioner to bring all these facts on record or to file the evidence. ( 105 ) THE proceedings do indicate that the petitioners were not afforded any opportunity to take any such plea or any plea or to adduce evidence, as on 6th september,03 when two applications moved by the respondents were decided, the disqualification petitions were lying unnoticed by the Speaker, though moved earlier on 4. 9. 03 on which even notices were not issued and the hearing of these petitions were deferred. The notices were, however, issued on 18. 9. 03 but again on 14. 11. 03, the hearing was postponed because of the pendency of the present writ petition. It was only after a span of about two years when the respondents themselves moved an application for expediting the hearing of the disqualification petitions pending before the Speaker and they filed written statement, only then the opportunity occurred to the petitioner to file rejoinder and take all such pleas. Thereafter again on preliminary objection being raised, the petitions for disqualification were dismissed after observing that in view of the recognition given to the group, it was necessary to decide the disqualification petitions, after taking evidence, though at the same time the Speaker held that the respondents have not incurred any disqualification. This order was passed on 7. 9. 05, which is also the subject matter of challenge in the present writ petition. ( 106 ) THE sequence of events aforesaid do establish beyond doubt that the petitioners were not having any opportunity to plead the facts, as have come on record of this petition as well as in the disqualification petition and the rejoinder to the written statement and at the first opportunity such pleas were taken. It is not the concern at the moment, as to under what circumstances and for what reason the hearing of the disqualification petitions were delayed even after the notices were issued on 18. 9. 03 but this delay in no case can be treated as an obstacle for the petitioners to raise the pleas, which they intend to raise and were otherwise available to them. ( 107 ) THE Speaker on receiving the disqualification petition is not expected to keep that petition pending, that too without passing any orders or without issuing any notice and wait for the defaulting members, who have incurred disqualification to manoeuvre support of other members for defeating the petition of disqualification. ( 107 ) THE Speaker on receiving the disqualification petition is not expected to keep that petition pending, that too without passing any orders or without issuing any notice and wait for the defaulting members, who have incurred disqualification to manoeuvre support of other members for defeating the petition of disqualification. As observed earlier, it would be entirely a different case where no disqualification petition has been moved or the members of the legislature party till then though constituted a group but of the lesser number of persons within the required group but none of them leave the party by their conduct or otherwise, and all leave the original political party only when the requisite group is formed but where before constitution of such group stray members or members less than 1/3rd leave their original political party by their conduct or action, the question that they had incurred any disqualification or not cannot be left without being considered, as they cannot be subsequently added in the other splinter group, so as to make the entire group of one-third strength. The Speaker could not have proceeded with the applications said to have been filed under paragraph 3 and 4, that too without giving any copies to the petitioners, though they were present and vigilant and that too without affording opportunity and more so without considering their petitions for disqualification and without requiring the respondents to submit their reply and put forward their claim against the disqualification petitions, though the two applications might have been decided together. ( 108 ) SNOWBALLING or piecemeal defection within a given pace of time with the continuity of process and the need of the hour at the discretion of the speaker in the matter of formation of group of 1/3rd members of the legislature party if introduced in the provision of Tenth Schedule, particularly in paragraph 3, it would make the action of the Speaker more subjective not depending upon the objective test laid down in the Schedule, as it would be his own discretion or wisdom to analyse the continuity of process, reasonable time which may be allowed to be lapsed in formation of group of requisite strength irrespective of the disqualification petition being filed by the aggrieved person (s) and thus giving every opportunity and occasion to the defecting members to procure more members for brushing aside the disqualification arising under paragraph 2. This is neither the legislative intent nor the scheme of the Tenth Schedule. ( 109 ) THE decision making process which was adopted by the Speaker makes the decision bad. It is yet undisclosed as to what prompted the Speaker for not issuing notice on disqualification petitions on 4. 9. 03, and deciding the applications said to have been moved under paragraphs 3 and 4 independent of the disqualification petitions by absolutely ignoring the same, within a span of three hours in the evening without affording reasonable opportunity to the petitioner even to contest the said applications and then issuing notice on disqualification petitions on 18. 9. 03. The orders say that the Speaker was of the view that the proceedings on disqualification petitions are quasi judicial proceedings, which would take time and, therefore, hearing was deferred whereas proceedings under paragraphs 3 and 4 are not of the same nature. Even assuming that the Speaker took the proceedings of recognition under paragraphs 3 and 4 as purely administrative, the argument of Sri dwivedi that nothing beyond than a claim of split and requisite number of heads were to be counted for giving recognition under paragraph 3, does not get support, even if it is taken to be the proceedings of administrative nature. In the case of Tata Cellular v Union of India (1994) 6 SCC 651 , the apex court, dealing with the scope of judicial review in administrative matters, observed as under:"71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. and further that: "judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself". ( 110 ) A re-look on the entire happenings from the day one as they took place before the Speaker right form 4th September, 2003 upto 8th September, 2003, it stands proved beyond doubt that the Speaker adopted the process of taking a decision which was unknown in the scheme of the Tenth Schedule or the rules framed for the purpose. This argument has been considered only with a view to examine the correctness or the perversity of the orders impugned, which has filtered into them, because of such a process being adopted by the speaker, which can be termed as not bonafide. The nature of proceedings under paragraph 6 (1) of the Tenth Schedule have already been found to be quasi-judicial and the Speaker acts as Tribunal and, therefore, where the proceedings are said to be taken under paragraphs 2, paragraph 3 or paragraph 4, they are nonetheless proceedings under the Tenth Schedule and decide a lis between the parties, who put forward their own claim with the responsibility of proving the same. In a case where there a lis between the parties, and the burden of proof also lies on one or the other, looking to their claim, which has to be decided by a Tribunal after affording opportunity of hearing including opportunity of leading evidence, such a proceeding cannot be taken into the realm of purely administrative proceedings. Proceedings may be under paragraphs 2, 3 or 4, all have to be decided by the Speaker, only under his jurisdiction and power of paragraph 6 (1 ). ( 111 ) IN their defence to the snowballing or trickling down of the MLAs one by one or in small groups for constituting the requisite group, it has been greatly stressed that it is the time when the defecting MLAs put their claim before the Speaker, they have to show the requisite number of MLAs in the group and not at any point of time before the claim is laid. The argument proceeds on the assumption that the language used in paragraph 3, which says where a member of the House makes a claim defines the period or point of time by which the group should be available, as required. Reference has also been made to para 36 of the Ravi Naiks case. Paragraph 3 does not say anywhere nor provides time for constitution of the group of the members of the legislature party nor it says that any such group should have been formed at a particular instance or in a given period of time nor it says that the group should be finally constituted on the date when a member puts forward his claim. Ravi Naiks case is also silent on the issue and does not lay down any such time period nor does it specify any time for constitution of the group. Paragraph 3 only says that where a member of a House makes a claim that he and any other members of his legislature party constitute the group, as prescribed therein, which would only mean that such a member does not stand disqualified because of the formation of the group but it cannot be inferred from the phraseology used in the said paragraph that it is the time of making the claim before the Speaker, which is determinative of the point of time by which the group of 1/3rd MLAs should have been formed. It is not that group can be formed till the claim is made by the member before the Speaker, but formation of group of requisite number would depend upon their conduct of not leaving their original political party voluntarily before the constitution of such group despite a faction having arisen as a result of the split in their original political party. This point has been dealt with in detail in the foregoing paragraphs also. Paragraph 3 does not lay down the period or point of time during which the group should have been constituted or has to be constituted. As already discussed, formation of the group is an independent action, which has to be considered in the light of the facts of each case keeping in mind the broad propositions laid down hereinabove. ( 112 ) AS it has already been observed that the Speaker assumes power only under paragraph 6 of the Tenth Schedule, in all proceedings under the Tenth schedule including the proceedings of disqualification of a member which are so interwoven with the provisions of paragraph 3 and 4 that, the Speaker could not have postponed the hearing of the disqualification petitions even in the presence of the applications allegedly moved under paragraph 3 and 4. It has been vehemently urged that since the public was not willing for a mid-term poll at such a short interval after the general elections nor they were willing for the President rule and since the Governor invited Sri mulayam Singh Yadav to form the government and sworn his as Chief minister on 30. 8. It has been vehemently urged that since the public was not willing for a mid-term poll at such a short interval after the general elections nor they were willing for the President rule and since the Governor invited Sri mulayam Singh Yadav to form the government and sworn his as Chief minister on 30. 8. 03 giving him 14 days time to show his majority in the house, therefore, it was necessary in the circumstances and in the interest of the State to recognise the breakaway group immediately so that they could have voted in the motion of confidence is as much a superficial argument as it could be. ( 113 ) THE plea that motion of confidence was to be placed before the House on 8th September, 03, therefore, there was urgency for deciding the application under paragraph 3 and 4 on 6th September, 03 in fact was an urgency for deciding the disqualification petition, so that any disqualified member should not have been allowed to vote on the day of motion. The petitioner could have either been given 24 hours time, as nothing was to happen on 7th september,03 in regard to the motion of confidence, and the disqualification petitions, could have been decided the next day, but in any case the hearing on disqualification petitions, could not have been postponed, only for having a smooth sailing of the motion of confidence. It is the responsibility of the Speaker to see that any disqualified member is not allowed to remain in the House, so as to spoil and pollute its atmosphere. ( 114 ) SRI Rakesh Dwivedi himself argued and admitted that there are innumerable instances where the splinter group have been formed in various states including Uttar Pradesh but such splinter groups have never intended to merge or merged with any other political party. The aforesaid plea based on the experience cannot be faulted with and it supports the view regarding the participation of the breakaway group in the House proceedings. The only thing which is required to be done is that such breakaway group is to elect its own leader of the party and intimate the name of the leader to the Speaker, who would provide space in the House to sit in the House, subject to his own satisfaction, if no challenge to the formation of group is made. The only thing which is required to be done is that such breakaway group is to elect its own leader of the party and intimate the name of the leader to the Speaker, who would provide space in the House to sit in the House, subject to his own satisfaction, if no challenge to the formation of group is made. ( 115 ) IN the Bihar Assembly Dissolution Case {rameshwar Prasad and others v. Union of India and others (supra)}, the Supreme Court has clarified that the members incurring disqualification can form the government even at the risk of being disqualified and the Governor cannot refuse the formation of such government merely because according to his own wisdom that would mean disqualification under the Tenth Schedule. The Tenth Schedule would have its own effect and consequences despite the members unite with each other or participate in the House proceedings and take part in the formation of the Government. ( 116 ) THE disqualification petitions thus would decide the fate of these members as to whether they had incurred any disqualification and if so, the same would date back to the date of happening, which would as a necessary corollary shall decide the fate of remaining 24 MLAs. It would also be significant to scrutinise the contents of the two applications filed by 37 MLAs, which has been treated to be an application under paragraph 3 and 4 respectively whereas in the first application they have only prayed that their group be recognised and they be given place for sitting in the House. There is no prayer for not treating them disqualified nor any such negative prayer could have been made. ( 117 ) IN regard to the order passed by the Speaker on 6. 9. 03 and 8. 9. 03 recognising the merger of Loktantrik Bahujan Dal into the Samajwadi Party, though it is sufficient to record that once the split having not been found to be proved and the order passed in the petitions under paragraph 3 of the Tenth schedule having been found not to be sustainable, it is no more necessary to delve upon the intricacies of the order dated 6. 9. 9. 03 as the same would also go for the reason that unless the group establishes that its members are not disqualified under paragraph 2 (1) (a) and have successfully avoided the disqualification in terms of paragraph 3, there would be no political party duly formed which can merge with any other political party. To explain, in case the group in question who was representing Loktantrik Bahujan Dal has not been found to be protected, under paragraph 3, there is no question of the aforesaid political party coming into existence nor this can be treated as the original political party of this group under paragraph 3 sub-clause (b) and consequently it cannot be merged also in terms of paragraph 4. The position emerges out of the case of the respondents, that on the recognition of their group by the Speaker, they moved the application for recognising merger. One more significant aspect of the matter is that the respondents claim that there were 43 MLAs in all who had formed the group, but on 4th september, 2003, they could produce only 37 and on that very date after the orders were passed recognising their group, Loktantrik Bahujan Dal, merged in the Samajwadi Party. This means that Loktantrik Bahujan Dal who was being represented by the group of 37 MLAs lost its independent identity on that very date when it merged with the Samajwadi Party. Three more MLAs, who appeared on 8. 9. 03, could not have been protected by merging in samajwadi Party, treating them the members of Loktantrik Bahujan Dal, as on that date, such Dal was not in existence. Therefore, the merger of these 3 mlas could not have been done. Rest three MLAs did not appear which also created a doubt, as per the argument of the counsel for the petitioner about the meeting when the group was formed. ( 118 ) IN view of the aforesaid conspectus of the factual and legal position, as emerged from the pleadings and circumstances of the case, read with the scheme of Tenth Schedule, it is manifestly clear that the Speaker while considering the applications of the respondents not only violated the principles of natural justice, but also acted against the constitutional mandate and committed manifest irregularity and procedural illegality causing miscarriage of justice. The two orders dated 6. 9. 03 and one order passed on 8. 9. The two orders dated 6. 9. 03 and one order passed on 8. 9. 03, all suffer from vice of perversity, they having been passed totally ignoring the provisions and the scheme of the Tenth Schedule and that too in violation of principles of natural justice, without affording any opportunity are liable to be quashed, and are hereby quashed. The non-consideration of the disqualification petitions despite repeated requests by the petitioner, makes only a case of flagrant violation of the constitutional provisions and is utterly unconscionable. ( 119 ) THE orders passed by the Speaker on 7. 9. 05 rejecting the disqualification petitions, after holding that there was no such necessity to hear them on merits, in view of the recognition of the group being given on 6. 9. 03, and its merger with the Samajwadi Party and then proceeding to record a finding that they were not disqualified again without affording any opportunity to the petitioner, while considering the preliminary objection makes the said order absolutely bad in law. Besides that the Speaker could not have on the one hand, refused to consider the petitions of disqualification on merit and on the other hand could have recorded findings of avoidance of disqualification in the said order, the disqualification petitions could not have been said to have become infructuous or meaning less in view of the legal position that disqualification petitions, if decided, and the claim of disqualification is upheld, the same would relate back to the date when these members left their original political party either by their express conduct or otherwise and such decision would certainly be conclusive to find as to whether the rest 24 MLAs of the group also stood disqualified or not. Thus, in any case, the disqualification petition could not have been rendered infructuous without recording a finding and without giving decision on merits. Consequently, the order dated 7. 9. 05 also deserves to be quashed, and is hereby quashed. Thus, in any case, the disqualification petition could not have been rendered infructuous without recording a finding and without giving decision on merits. Consequently, the order dated 7. 9. 05 also deserves to be quashed, and is hereby quashed. ( 120 ) THE matter regarding the consideration of these petitions, namely, 13 disqualification petitions moved by the petitioner and application moved by the respondents are thus required to be reconsidered by the Speaker in accordance with law keeping in mind the legal position explained above, as this Court would not substitute its own findings nor would be in a position to do the same and for that reason, I do agree with the directive that Brother bhalla, J. has issued after quashing the orders impugned. .