S. Rathinam @ Manohar vs The Speaker Legislative Assembly of Union Territory of Pondicherry and Others

K.P. Sivasubramaniam, J.—In these three writ petitions, three erstwhile Members of the Legislative Assembly of Pondicherry Union

Territory who were elected in the elections held during April, 1996, seek to question the order of the Speaker of the said Assembly holding them

as disqualified in terms of the X Schedule to the Constitution of India.

According to them, in the State of Tamil Nadu, the Members of the Indian National Congress left that party in the year 1996 and decided to

form a party in the State of Tamil Nadu and pursuant to an application made by the said group, the Election Commission of India by order dated

2.4.1996 granted recognition of Tamil Manila Congress (Moopanar) as a State Political Party in Tamil Nadu u/s 29 (A) of the Representation of

the People Act, 1951 and paragraph Nos. 6 (3) and 7 of the Election Symbols (Reservation & Allotment) Order, 1968 and the symbol of bicycle

was reserved for the party in the State of Tamil Nadu. In Pondicherry area also, there was a similar situation and the President of Tamil Manila

Congress (Moopanar), Pondicherry, filed a separate petition u/s 29(A) of the Representation of the People Act and Symbol Order supported by

affidavit of all the five Members of the Pondicherry Legislature who were elected in the elections held during May, 1996. By order dated

12.9.1996, the Election Commission recognised T.M.C. (Moopanar) as a State Party in Pondicherry. Therefore, according to the writ Petitioners,

T.M.C. (Moopanar) recognised in Tamil Nadu was distinct from the party recognised in Pondicherry. Both parties have nothing to do with each

other and they have their own byelaws. While so, according to the Petitioners, the T.M.C. (M) at Pondicherry, suffered a split during September,

2000 and as result of the said split, three out of five elected M.L. As. constituted a faction in the Assembly namely, the writ Petitioners.

Consequent on the said split, a party meeting was held on 20.9.2000 and several office-bearers attended the meeting. At the said meeting, a

resolution was passed to the effect that T.M.C. (S. Rathinam @ Manohar Group) was constituted under the leadership of S. Rathinam @

Manohar. Consequent upon the split three out of five Members of the Legislature Constituted a group representing the faction which had arisen as

a result of the split in the original party. The said resolution dated 20.9.2000 was duly communicated to the Speaker. Thereafter, Respondents 4

and 5 being the other two Members of the Legislature belonging to the party, filed petitions before the Speaker dated 3.12.2000, purportedly

under Article 191(2) read with Paragraph 2 (1) (a) of the X Schedule to the Constitution of India. The applicants had contended that T.M.C. (M)

was one composite organisation with monolithic organisational set up and that the writ Petitioners having voluntarily given up their membership of

their original party, disqualification under para 2 (1) (a) of the X Schedule of the Constitution of India was attracted. The writ Petitioners were

called upon to submit their explanation and a detailed explanation was submitted on 16.12.2000 with Annexures. A date for hearing was fixed on

24.12.2000 and on the representation on behalf of the writ Petitioners, it was adjourned to 25.12.2000. On that date, Learned Counsel for the

Petitioner had represented to the Speaker that in the case of a petition for disqualification, the burden of proof was on the person alleging

disqualification and as such the Member who alleges disqualification has to establish his case. But notice of hearing has been sent only to the writ

Petitioners. Unless the complainant was heard, the burden could never shift to the writ Petitioners. The mandatory requirements were also not

complied with and hence the complaint of disqualification was liable to be rejected. However, according to the writ Petitioners, the first

Respondent/the Speaker had predetermined the issue even without considering the points raised by them. On the same day, the Petitioners were

served with a copy of the impugned order holding that the writ Petitioners were not qualified. The Petitioners in their affidavit have further stated

several grounds contending that the impugned order was unconstitutional, arbitrary, illegal and vitiated by bias on the part of the Speaker etc.

Annexures filed by the complainants would disclose that they have been furnished copies of documents from the Office of the Speaker and which

are not available outside the Office of the Speaker. Hence, the present writ petitions.

In the affidavit of the first Respondent/the Speaker, it is stated that being in the position of a Tribunal or Quasi Judicial Authority, was filing the

counter for the limited purpose of denying the allegations of mala fides and bias. The order which has been passed by him was in conformity with

the true intent and spirit behind the purpose of the Tenth Schedule and is intra vires of Section 14-A of the Government of Union Territories Act,

1963. The allegation that he belongs to the Ruling party and that he has proceeded to help the Ruling party by seeking to disqualify the Petitioners

are also denied. The first Respondent has also denied that neither himself nor his office had parted with any records or documents as alleged.

Such allegations have been made only on surmises and conjectures mainly because he had been elected on Congress (I) ticket to the Assembly.

He did not help the Respondents who had filed petitions seeking disqualification and directing them to furnish documents. In fact, even though the

writ Petitioners had represented through their letter dated 20.9.2000 for recognition as a separate group, he had acted only long after the

presentation of the petitions filed by the fourth and fifth Respondents on 3.12.2000 seeking disqualification of the writ Petitioners. The said

circumstance alone would belie the allegation of bias and mala fides and if he wanted to do anything with undue haste, he could have very well

taken on 20.9.2000 itself if he had wanted to help anybody. His order is consistent with the law declared by the Supreme Court while interpreting

the Tenth Schedule of the Constitution of India. This Court is primarily concerned with the legal validity of the Order and there are no mala fides

either legally or factually as alleged by the Petitioners. Hence, the order is intra vires of the provisions of the Tenth Schedule of the Constitution of

India.

In the counter filed by the second Respondent, the Secretary of the Legislative Assembly, various allegations contained in the affidavit filed in

support of the writ petitions, have been denied. The Tenth Schedule empowers the Speaker of the House to make Rule for giving effect to the

provisions of the Schedule and in exercise of the power conferred by Paragraph No. 8 of the Tenth Schedule, and in exercise of the powers

conferred u/s 14-A of the Government of the Union Territories Act, 1963, the said provisions were given effect to as regards the Union Territory

of Pondicherry. As a result of the same, duty was cast on the leader of the Legislative Party or the persons authorised by him to communicate to

the Speaker any instances of defections specified in the Tenth Schedule of the Constitution of India. One of the Members had intimated to the

Speaker on 30.10.1996 in Form No. 1 stating that five Members elected to the Assembly belonged to Tamil Manila Congress (Moopanar) party.

On 20.9.2000 two of the Petitioners had informed the Speaker that there was a split in the original Tamil Manila Congress (Moopanar) party and

that they had constituted a group representing the faction as a result of the split. Subsequently, Respondents 4 and 5 gave representations to the

Speaker stating that the Petitioners have voluntarily given up their Membership of their original party and thus they are disqualified under the Tenth

Schedule. Thereafter, enquiry had been duly conducted by the Speaker. The writ Petitioners had been provided with personal hearing as required

under Rule 7 (7) and opportunity was given to them on 25.12.2000. On proper enquiry, the Speaker found against the Petitioners and hence, the

impugned order. The second Respondent also denied allegations that either the first Respondent or the Secretariat had ever parted with documents

or records or they had given any copies to Respondents 4 and 5. The documents filed by the Petitioners and Respondents are in the custody of the

2nd Respondent and he undertakes to submit the same to the Court as per the directions. There was also no basis for the allegation of bias

attributed as against the second Respondent.

In a separate counter, the Chief Secretary/the third Respondent has stated that he was in no way connected with the order of the Speaker of the

Legislative Assembly.

In the counter of the fourth Respondent which is identical with the counter of the fifth Respondent various allegations raised by the writ

Petitioners have been denied. It was not correct to state that the Election Commission had recognised Tamil Manila Congress (Moopanar) as a

separate party in Pondicherry, distinct and different from that of the T.M.C. in Tamil Nadu. It is not the President of T.M.C. Pondicherry who had

made the application requesting the Election Commission to recognise the party as a State Party in Pondicherry under the Symbol Order. It was

only the President Mr. G.K. Moopanar who has made the application. In all the orders passed by the Election Commission, it is only the address

of the party at Chennai which has been given. The Petitioners were trying to create unnecessary confusion by referring to the background under

which registration came to be effected with reference to the Tamil Nadu State Unit earlier and that Pondicherry Union subsequently. In the counter

affidavit, the Respondent has also given other details in support of his submission that there were no two parties. It is also stated that there was no

separate bye-law for the Pondicherry Unit. It is further stated that there was absolutely no evidence nor proof before the Speaker to claim

protection under Paragraph 3(a) (i) of the Tenth Schedule of the Constitution of India. The contention that the party in the Union Territory of the

Pondicherry had suffered a split was also denied. There was no meeting on 20.9.2000 as claimed by the Petitioners. The details of the place of the

meeting, who presided over the meeting etc. were not disclosed before the first Respondent. The contention that there was a split in the original

party and that by passing a resolution T.M.C. (Rathinam group) was formed, was not correct. No such resolution was enclosed along with the

letter dated 20.9.2000 before the Speaker. Considering that the writ Petitioners had themselves stated that a split had occurred in the party and

that they had formed a separate group in the Assembly, that itself was sufficient to show that Paragraph 2 (1) (a) was attracted. Hence, there was

no burden on the Respondent to show that the Petitioners have defected from the original political party. On the other hand, it was for the

Petitioners who claim protection under Paragraph 3 of the Tenth Schedule to prove that there was a split in the original political party. The

allegation that the Speaker had pre-determined the issue was totally wrong and intended to cast aspersions on the Speaker. It is further stated that

the defection of the writ Petitioners was unethical and the Respondents had substantiated that the Petitioners for no reason had defected from the

original party which had set them up as candidates in the election. There was no split in the original political party. The mere decision of the three

M.L. As. out of five M.L. As. deciding to form a separate faction inside the Assembly, was not sufficient to give them protection under Paragraph

3 of the Tenth Schedule of the Constitution of India. The contention of the Petitioners that documents filed by the Respondents are only Xerox

copies without any endorsement as true copies, was also without any basis. There is also no basis for the contention that the said copies were

furnished by the Office of the Speaker. There was no seal or signature of any one in the Office of the Speaker to show that those documents were

furnished by the Office of the Speaker.

It is also further contended that the enquiry by the first Respondent was proper after having given sufficient opportunity to the Petitioners to

establish their case. The Petitioners were trying to project as though... the Speaker had issued notice asking the Petitioners to appear for hearing

on 25.12.2000 to explain the stand. On the other hand, it could be seen from the typed-set of papers filed by the Petitioners that on 9.12.2000 the

Speaker had issued notice to the Petitioner informing about the receipt of the petition filed by Respondents 4 and 5 and calling upon them to reply

within 10 days. A reply was furnished by the Petitioners on 16.12.2000. They were directed to appear for enquiry on 21.12.2000. On the request

of the Petitioners, the hearing was adjourned to 24.12.2000 and as a result of the another letter by Mr. D. Rajagopal, Advocate, the enquiry was

adjourned to 25.12.2000. It is further stated that the scope of judicial review of the order of the Speaker was limited. The Speaker has not

contravened any of the mandatory provisions of the Constitution and the decision was not vitiated by mala fides. It is further stated that the split in

the original political party as referred to in Paragraph 3 of the Tenth Schedule of the Constitution of India must be a split of a substantial nature or

at least a split of one-third of office-bearers of top to bottom in the party hierarchy. One or two office-bearers leaving the party without following

any of other party men from top to bottom, cannot claim that they have separated from the original political party. Therefore, the Petitioners not

having established any split in the original party, the order passed by the Speaker was perfectly legal and justified.

A reply affidavit has been filed by the writ Petitioner stating that the Speaker continues to be a member of the Indian National Congress and

along with the reply affidavit, he has annexed a list of Members of the Pondicherry Pradesh Congress Commission, disclosing the Speaker as one

of the members of the party.

Mr. T.R. Rajagopalan, learned Additional Advocate-General representing the writ Petitioners dealt with the events which led to the ultimate

passing of the impugned order and raised the following points for consideration:

(i) Immediately after the split the writ Petitioners by their letter dated 20.9.2000 had communicated to the Speaker about the split and their

intention to be recognised as a separate group. But without taking that petition for consideration and disposal, the Speaker had chosen to take up

the petition filed for disqualification which was filed long after, namely, on 3.12.2000. A notice was given to the Petitioners on 9.12.2000 for which

a reply was given on 16.12.2000. Subsequently, the hearing was fixed on 24.12.2000. When inconvenience of the counsel for the Petitioners was

expressed, the hearing was adjourned to the next date, 25.12.2000. The same day, the impugned order had been passed and served on them. The

entire sequence of events would disclose that the Speaker had made up his mind even earlier and was bent upon passing an adverse order.

(ii) Non issue of notice to the complainants (Respondents 4 and 5 ) was violative of principles of natural justice and the initial burden on the

complainant under-Para-graph 2 (1) (a) of Tenth Schedule was never discharged by the complainants. Non-appearance of the complainants

amounted to violation of principles of natural justice.

(iii) A perusal of the various annexure filed along with the complaint would show that they are not genuine true copies of originals and hence, the

Speaker ought to have rejected the complaint and also for the reason that there was no proper verification in the absence of disclosure of the

source of information or how they had got the documents. Hence, the Speaker should have rejected the complaint in limine.

(iv) The very issues framed by the Speaker for consideration would show that the Speaker had misdirected himself, namely, there was no issue

relating to the proof of disqualification.

(v) A perusal of Tenth Schedule of the Constitution of India makes it clear that there should be a split in the party and a consequential split in the

Legislature party in the specified proportion, namely, one-third. Such a split was a sufficient protection against disqualification. But the Speaker

went on a wrong premises as though there should be a vertical split of the organisation of the original party as well as the Legislative Party in the

same proportion.

(vi) The Speaker did not also properly appreciate that the Tamil Nadu Unit and Pondicherry Unit of the party were separate and distinct and there

was absolutely no administrative control over the Pondicherry Unit by the Tamil Nadu Unit or vice versa. Therefore, the Speaker was in grave

error in thinking that there should have been a split in the Pondicherry Unit also.

(vii) The fact of split in the Pondicherry party was admitted in the complaint itself. The complaint filed by the Respondents 4 and 5 is in fact, based

in the letter of the writ Petitioners dated 20.9.2000 requesting recognition of their separate group. As such it cannot be held that there was no split

in the Pondicherry party.

(viii) having regard to the requirements under anti-defection law, the reasons for split in Pondicherry alone has to be considered and the position in

Tamil Nadu was irrelevant.

(ix) The procedure prescribed under Rule 7 (7) of the Members of the Pondicherry Legislative Assembly (Disqualification on ground of defection)

Rules, 1986 has not at all been properly complied with.

(x) There is also non-compliance of Rule 7(3) (b) as no comments had been sought for from the leader of the Legislature Party.

Learned Senior Counsel also took me through the various rulings rendered by the Supreme Court in the context of cases of disqualification

arising under the Tenth Schedule of the Constitution of India to which reference will be made subsequently.

Mr. Mohan Parasaran, Learned Counsel for the Speaker, the first Respondent, contends that the Speaker is only required to deal with the

allegations of bias or mala fides against him. He would point out that the allegations of bias or mala fides were vague and half-hearted and in fact,

the Speaker had been impleaded only in his official capacity and not in individual capacity. What was alleged was only a vague apprehension and

nothing more. Even in the context of certain documents having been allegedly made available to the complainants, the reference is only to the office

of the Speaker and not to the Speaker himself individually or personally. Though the Speaker was not required to defend his case on merits, he

would only point out that there was absolutely no material on the side of the writ Petitioners to sustain their plea of split of the party. In the letter

dated 20.9.2000 the writ Petitioners had mentioned about a resolution which was never produced before the Speaker. Therefore, what was

established before the Speaker was only a split in the Legislature Party and not the original party. Therefore, there was no perversity in the decision

of the Speaker. There was also no basis for the complaint arising out of his continued membership with the party through which he was elected.

Learned Counsel points out that the Supreme Court in Mayawati Vs. Markandeya Chand and Others, had made it clear that the Speaker was not

required to resign his membership of the political party after his election to the office of the Speaker.

Mr. R. Krishnamoorthy, Learned Senior Counsel representing the Secretary, Legislative Assembly, the second Respondent contended that he

would restrict his submission only in the context of the allegation of bias. The second Respondent has not been impleaded in his personal capacity,

but only by the Office. The allegation of bias was vague and not based on any specific averment. The allegation that someone in the office of the

Legislative Secretary or Office of the Speaker should have handed over the documents to the complainants to enable them to file the alleged

copies, is again not directed against any specific individual, but only against the office in general. Such allegations cannot at all be countenanced.

Learned Senior Counsel had also produced relevant files as well as a copy of the Lok Sabha Debates in respect of 52nd Amendment to the Tenth

Schedule of the Constitution of India.

Mr. G. Masilamani, Learned Senior Counsel, representing the fourth Respondent, very elaborately dealt with the issue as to whether T.M.C.

(Moopanar) in Tamil Nadu and Pondicherry was a single homogenous pany or a different party and sought to challenge the claim of the writ

Petitioners that both were different entities. In this context he has referred to the registration of the party at Tamil Nadu and at Pondicherry, and in

both cases the Head Office has been shown as the Office at Chennai. He further submits that registration was one time affair u/s 29 (A) of the Act

and also dealt with distinction between National Party and the State Party and that candidates had been set up only by the State Party recognised

in Tamil Nadu. I do not propose to extract his submissions in this context in detail since to my mind, the said issue is really a futile one as I would

explain subsequently. Learned Senior Counsel contended that as far as claiming protection under Paragraph 3 of the Tenth Schedule was

concerned, the burden was on the person claiming such protection. namely, the Petitioners in these writ petitions. Since, the fact that they had

come out of the party was admitted by them, the initial onus on the Respondent had automatically shifted to the writ Petitioners. As regards the

proof of split, Learned Senior Counsel contended that absolutely no material had been placed by the writ Petitioners before the Speaker. Even the

only claim of a resolution having been passed, the said resolution had not seen the light of the day. Not even oral evidence had been let in by the

writ Petitioners. Learned Senior Counsel further contended that a split should be meaningful and not farcical. A reading of Paragraph 4 of the

Tenth Schedule of the Constitution of India envisages two limbs. Firstly, it has to be satisfied, that there was a split in the original party and

secondly, split in the Legislature Party. The writ Petitioners had miserably failed in establishing any split in the original party. The letter dated

20.9.2000 of the writ Petitioners does not evidence any split in the original party and the signatories are only the members of the Legislature. He

would also submit that the expression ""vertical split"" was used only by the writ Petitioners and the Speaker had applied the said expression only in

dealing with the contentions of the Petitioners. Learned Senior Counsel had also taken me through several passages in the judgment of the

Supreme Court in Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, and Mayawati Vs. Markandeya Chand and Others, which

will be dealt with subsequently.

Mr. B.S. Gnanadesikan, Learned Counsel for the fifth Respondent pointed out that it was the specific case of the writ Petitioners not only

before the Speaker, but before this Court also that T.M.C. at Tamil Nadu and T.M.C. at Pondicherry were separate parties. He would further

contend that assuming that both are different parties, it is only T.M.C. in Tamil Nadu which had set up the writ Petitioners as candidates and as

such, they could be considered only to be the members of the Tamil Nadu Party. There was no pleading to the effect that there was any split in the

Tamil Nadu party. Learned Counsel also submits that a reading of Paragraph 3 of the Tenth Schedule to the Constitution of India, clearly brings

out that firstly, there should be a split in the original party and the expression ""representing"" also emphasises that the group inside the Assembly

should represent a faction outside the House. In the present case, the writ Petitioners were not representing any group or faction outside the

House. In this context, Learned Counsel also refers to Paragraph 2 (b) dealing with disqualification resulting from a member voting or abstaining

from voting contrary to any ""direction issued by the political party."" Reference is made to the said expression by Learned Counsel to bring home

his point that there shall be a faction outside the House to which the defected member of Legislature should owe his allegiance. The said expression

would also imply the discipline which the member should owe to the directions of the party. A member cannot claim any right to behave as he

chooses, thus conflicting with the views of the party. As far as the genuineness of the documents are concerned, the truth or genuineness of the

documents were not challenged by the writ Petitioners in their counter before the Speaker and therefore, they are not entitled to raise the said issue

before this Court for the first time. Learned Counsel also referred to the documents in particular and contended that the documents filed by them

were genuine and that in fact while they had enclosed their membership cards, the writ Petitioners did not do so.

Learned Counsel further contended that there was also no evidence even as regards the alleged split in the Pondicherry party. Reference was

also made to the judgment of the Supreme Court in Mayawati''s case in support of the contention that there should be very strong pleadings and

evidence to prove the alleged split in the political party.

In his reply, Mr. T.R. Rajagopalan, Learned Senior Counsel, reiterated that both the State units are separate and admittedly neither the

members nor the office-bearers of one unit had any control over the other unit, and members of one unit had no voting rights in the other unit on

any issue or election to the organisation. Learned Senior Counsel also contended that the observation in Mayawati Vs. Markandeya Chand and

Others, were not helpful in any manner and even otherwise of the three learned Judges, two Judges had expressed differing and dissenting views

and the third Judge, Chief Justice of India had expressed that the issues raised in that case have to be referred to a larger Bench. Therefore, there

were no binding ratio in the said judgment. Learned Senior Counsel also further contended that as regards the split in Pondicherry unit was

concerned, it was an admitted position by the Respondents themselves and in fact many of the Newspaper reports filed as annexures and relied on

by the Respondents 4 and 5 themselves clearly establish the fact of split in Pondicherry party. Respondents 4 and 5 are estopped from going back

on the evidence filed by themselves in the context of the split which took place in the Pondicherry party itself. More over, the manner of enquiry,

conducted by the Speaker was in such a hurried and one-sided manner that there was no adequate time for the writ Petitioners to summon

witnesses for any oral evidence or to produce further documentary evidence. This is apart from the fact that the Speaker did not even insist on the

appearance of the claimants to substantiate their claims. The hearing was conducted in a very hurried manner and the orders were served on the

writ Petitioners on the same night at about 12.30. On the issue of the annexures and Newspaper reports filed by Respondents 4 and 5, both Mr.

G. Masilamani, Learned Senior Counsel and Mr. B.S. Gnanadesikan, Learned Counsel contended that the Newspaper reports were not

admissible in evidence and that is the reason why the Speaker himself did not refer to them. They did not evidence any split and they were filed

only to bring out not only the acts of indiscipline indulged by the writ Petitioners, but also the varying and conflicting perception of the Press in the

context of the resignation of the writ Petitioners from the party. Such Newspaper reports cannot be taken as evidence of any split.

On a consideration of the various contentions raised before me, it would be convenient to formulate the points for consideration as follows:

(a) Whether the political party of T.M.C. (M) is a single unit organisation or whether the Pondicherry T.M.C. is a separate and distinct party from

Tamil Nadu T.M.C.

(b) Assuming that both the Slate units are one and the same, should there be a split in the organisation and Legislative party in Tamil Nadu also.

(c) Whether the documents filed by the complainants as Annexure to their petition are true copies of their originals and whether verification by the

Respondents were correct.

(d) Whether the Speaker is guilty of bias or mala fides.

(e) Whether there should be a vertical one-third split in the original party as well as in the Legislature party.

(f) Whether there is legally sufficient and convincing evidence of split in the original party as required under ;he Tenth Schedule.

(g) Whether the procedure of hearing adopted by the Speaker in not requiring the presence of the complainants (Respondents 4 and 5) during the

enquiry is correct and whether the Petitioners are prejudiced in --manner in the manner in which the c had been conducted.

Before taking up the for consideration, it would be desirable to extract Paragraph 2 (1) (a) (other sub paragraphs are omitted) and Paragraph

3 of the Tenth Schedule of the Constitution of India:

Disqualification on ground of defection -(1) 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.

(a) if he has voluntarily given up his membership of such political party; or 3. 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 legislature

party.

(a) he shall not be disqualified under subparagraph (1) of paragraph 2 on the ground.

(i) that he has voluntarily given up his membership of his original political party; or

(ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or 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 belong for the purpose of sub-paragraph (1) of

paragraph 2 and to be his original political party for the purposes of this paragraph.

Points A and B:

As far as the is-sue as to whether the Tamil Nadu Unit and Pondicherry Unit of T.M.C. (Moopanar) is one and the same party or different parties

as contended by the writ Petitioners, I am inclined to hold that both sides had chosen to adopt extreme, irrelevant and immaterial stand which has

no effective bearing on the issue to be decided in this proceeding. In my opinion, in the context of the provisions under the Tenth Schedule, such a

controversy is irrelevant. The ultimate test is to find out whether there is a split in the original party and the Legislature party or not. It is fairly

agreed to by Learned Counsel for the Respondent that even a split in the District Unit of a state party, would be a split in the original party.

Therefore, assuming for the sake of discussion, that T.M.C.(Moopanar) is a single party as pleaded by Respondents 5 and 6, even then a split in

the Pondicherry Unit would be sufficient to establish the split in the original party. Likewise assuming in favour of the writ Petitioners, namely, that

the Pondicherry Unit is a separate and independent party by itself, then also if the split in the Pondicherry Unit is established, that would be

sufficient to hold that there is split in the original party. It is not known as to why both parties took such an extreme stand which takes them

nowhere. The Speaker also had allowed himself to be diverted by a pointless controversy and consequently rendering findings on the said

irrelevant issues.

Respondents 5 and 6 in their representation dated 3.12.2000 seeking disqualification of the writ Petitioners chose to contend that the party is a

composite organisation (Paragraph 8) and that it was not just enough that one-third of the Members of the Legislative Assembly of one of the

States alone defect from the party and that the strength of the M.L. As. In both the States should be put together (Paragraph 12). This contention

appears to have resulted in a panic reaction in the minds of the writ Petitioners who in order to outsmart the Respondents had chosen to take the

stand that the party in the Pondicherry is a separate and independent party. This has resulted in the futile exercise by both sides by letting in

evidence relating to the orders of Election Commission as regards the registration of the party, orders passed under the Symbol Order, Enrolment

of membership, Party bye-laws etc., which in my opinion are totally unwarranted. Both Mr. Masilamani, Learned Senior Counsel for fourth

Respondent and B.S. Gnanadesikan, Learned Counsel for fifth Respondent would strongly urge that the writ petitions have to be dealt with only on

the basis of the pleadings of the writ Petitioners before the Speaker which had been repeated before this Court also and that the writ Petitioners

have to stand or fall on their own pleadings.

I am unable to agree with the said contention. If one party to the lis says that two plus two is "" Three"" and the opposite party says ""Five"", the

Court is not prevented from saying that the answer is "" Four"". The duty of a Court or any judicial authority is to render justice and not to be

diverted by erroneous pleadings by the parties. The pleadings under consideration are not merely factual, but involve interpretation of the

Constitutional provisions. When a statute requires to be interpreted on self-evident facts on record, then in the words of Sir Wade, "" the urge to

intervene was more than judicial flesh and blood could resist.

A Division Bench of the Calcutta High Court held in A.l.R. 1927 Cal 49, as follows:

The learned Judge is perfectly entitled as a judge of fact to give due'' weight to the evidence adduced by the parties to draw his own inference

which may be inconsistent with the case of either party for it is the duty of the Judge to sift the truth and not to be pinned to the evidence of a party

to the case in order not to defeat the ends of justice.

In Thirumalai Iyengar v. Subbaraju 1962 (I) M.L.J. 193, a learned single Judge held as follows:

The parties took up extreme positions, the Plaintiff pleading that he had advanced cash of Rs. 5,500/- to the Defendant and the Defendant denying

the very execution of the suit promissory note. The duty of the Court is to give effect to the inference to be drawn from the evidence on record.

The Court is not prevented from recording a finding which may not be consistent with the pleadings of either party in a suit.

Having observed so, the learned Judge referred to the observations of the Division Bench of the Calcutta High Court as extracted above and

proceeded to hold as follows:

I respectfully agree with this observation. The contentions of the parties largely depend upon the exigencies of the respective cases put forward by

them and they do not hesitate to distort facts and events to obtain a verdict from the Court in their favour. The pleadings constitutes the framework

of the action and they cannot be disregarded or varied from by the parties themselves. But the findings of the Court on the issue arising in the case

is one that emerges from the evidence on record and it may so happen that the finding may not be in strict accord with the case of either party.

There is no law which can prevent the Court from recording such a finding without being fettered or oppressed by the pleadings in the case. Indeed

it is the duty of the Court to re- cord only such findings which follow on the proper appreciation of and a legitimate inference from the evidence on

record.

The above mentioned observations of the learned single Judge were quoted with approval by a Division Bench of this Court in T.S.

Sadagopan (deceased) and Others Vs. T.N.K. Ramanujam and Others, . If the above is the position, even in the field of Private law. afortiori, it is

more relevant and imperative in the filed of Public Law which deals with disqualification of elected members of the Legislature and interpretation of

the provisions of the Constitution. The Speaker while discharging his functions under the Tenth Schedule of the Constitution of India performs a

judicial function of a Tribunal, as pointed out by a Constitutional Bench of the Supreme Court in Kihota Hollohan v. Zachinu 1993 S.C. 412.

Therefore, he is not bound by erroneous pleadings of the parties and he has to render his decision on the basis of the Constitutional and other

Statutory provisions and on the facts substantiated before him. In fact, he has rightly held that the contention of Respondents 4 and 5 that number

of members required for calculating one-third of the members of the Legislature party, both Tamil Nadu and Pondicherry should be added

together, was irrelevant. This conclusion was correctly arrived at on the basis of the provisions in the Tenth Schedule. Likewise, the Speakers

should have also considered the issue of split in the original party in the proper light of the facts and law instead of being mislead by erroneous

pleadings by both sides.

The contention that for calculating one-third of the strength, the number of members in the Legislative Assembly of Tamil Nadu also should be

taken into account, cannot also be sustained. On a perusal of the definition of the Legislature party as well as Paragraph 3 of the Tenth Schedule

clearly envisages only the Legislature party in relation to a member of the House to which he belongs to. The position prevailing in any other House

of Legislature can have no relevance to decide any of the issues arising under the Tenth Schedule of the Constitution of India.

The further contention which was raised on behalf of Respondents 4 and 5 is that the writ Petitioners when they contested the elections they

were actually nominated only by the Tamil Nadu unit of T.M.C.(M). At that time, the Pondicherry Unit was not registered with the Election

Commission and therefore, in the event of T.M.C. Pondicherry Unit being considered as distinct and separate, the writ Petitioners can be stated to

be only members of the Tamil Nadu party and not the Pondicherry party. I am afraid arguments cannot be advanced in desperation and ignoring

realities. In a race to outsmart each other, parties cannot indulge in unrealistic contentions. We need not go into the issue in this case as to whether

the Tamil Nadu and Pondicherry units are distinct and separate. But there cannot any doubt that once Pondicherry unit had been registered with

the Election Commission, then the members belonging to the Pondicherry area and party unit can only be members of Pondicherry unit and not that

of the Tamil Nadu area. Therefore, I am unable to sustain the said contention.

Therefore, on Points ''A'' and ''B'' I am inclined to hold that the issue as to whether T.M.C. (Moopanar) at Tamil Nadu and Pondicherry are

one and the same party or not, is not relevant and is immaterial to decide the lis in the present case.

POINT C - This issue relates to the allegation of the writ Petitioner as regards the alleged non-compliance of the provisions of the Pondicherry

Legislative Assembly (Disqualification on ground of defection) Rules, 1986. In this context, the allegation finds a place in the statement filed by

them before the Speaker in Paragraph No. 10. The only allegation that Rule 6(7) of the Rules, requires that in Annexure to the petition shall also be

signed by the Petitioners and verified in the manner as in the petition. But the Annexures served on the writ Petitioners did not contain the signature

of the Petitioners. The word used in the Rule 2 ''shall'' signifies the mandatory nature of the requirement. Hence, the noncompliance of the same

would render the petition liable to be dismissed. On this issue, the Speaker in the impugned order, has stated that the original petition was available

in his office with annexures and a perusal of the same shows that the annexures as well as the petition have been duly verified as required under the

Rules.

It is also pertinent to note that the Supreme Court in many of its recent decisions rendered under the Representation of People Act, 1951,

where under strict compliance of such technical and procedural requirements have always been held to be mandatory, had construed the issue of

verification of documents very liberally and held that such defects are always curable and an Election Petition cannot be dismissed merely on the

said ground.

In fact, in the Context of the Tenth Schedule, the Supreme Court had pointed out in Ravi S. Naik and Sanjay Bandekar Vs. Union of India

and others, that these Rules are procedural in nature and any violation of the same would amount to only an irregularity and cannot be a subject

matter for judicial review. It was further held that the Rules cannot be elevated to the status of the provisions of the Constitution. Therefore, I am

unable to attach much importance to the objection raised by the writ Petitioners on this issue.

Mr. Rajagopalan also took me very extensively through some of the annexures filed by Respondents 4 and 5, such as members'' enrolment

forms and other documents and contended that many of those documents were fabricated and were not genuine, true copies of their originals. He

would also refer to the signatures of the various parties to those documents as being manipulated or forged. Reference was also made to the

absence of the address of Pondicherry office of the party in the enrolment forms and would contend that the annexures filed by the Respondent

were manipulated and forged. It is true that the said allegations are very serious in nature, if proved. But a perusal of the statement of the writ

Petitioners disclose that such an objection had not been taken before the Speaker. The Speaker''s order also does not disclose any argument

having been advanced before him on the genuineness of the annexures filed before him or as being manipulated or forged. It is true that Mr.

Rajagopalan contends that in view of the narrow time schedule given to them, they were not able to produce oral or documentary evidence before

the Speaker. But whatever be the reason, at this stage, the writ Petitioners cannot be allowed to raise the said issue before this Court for the first

time. Mr. B S Gnanadesikan, also referred to the various features in the disputed annexures and contends that they are true copies of the originals

and the names in the forms in the signatures portion were filled up by the Respondents only to show who the signatory was and there was no

question of any forgery. He would also contend that the enrolment forms were consistent with the Membership cards whereas the writ Petitioners

had not produced any Membership cards. But as I had already pointed out, this Court cannot entertain the said objection which had not been

raised before the Speaker. The nature of allegations require oral evidence which should have been adduced before the Speaker. Therefore, I am

inclined to hold this issue against the writ Petitioners.

Point ''E'' - On behalf of Respondents 4 and 5 a claim has been raised in their complaint before the Speaker that there should be a vertical

one-third split in the party as well among the members of the party, among the office-bearers of various organs of the party and that handful of

persons claiming to belong to the original party alone cannot defect and that too only in one State. Though the Speaker did not accept the

contention that there should be one-third split in the Legislature of other State also as regards the split in the original party, he has found in favour of

Respondents 4 and 5 on other issues. The Speaker had held that the writ Petitioners had not showm ''that the split was vertical from top to bottom

of the party functionaries in the original political party.'' He had, therefore, concluded that there was no valid split''.

33.I am afraid that here again the Speaker fell into an error in being guided by the extreme pleadings and he ought to have considered the

provisions of the Tenth Schedule in the light of the view expressed by the Supreme Court. In the Tenth Schedule, there is no use of the expression

'' vertical split'' anywhere. The complainants/Respondents 4 and 5 chose to use the said expression repeatedly and so also the writ Petitioners also

followed suit by taking the stand that there was no vertical split.

On this issue whether on the facts and circumstances of the present case, a split has been established or not would be dealt with under Point

''F''. As far as point E'' is concerned, the analysis is general in nature in trying to ascertain the legislative intent and scope of the Tenth Schedule and

as interpreted by the Supreme Court. This discussion necessarily requires an insight into the Objects and Reasons of the Statute and any

observation which I make in the said context is only an attempt to analyse the objects of the Legislation and will have nothing to do with the

political motives or ethical values of one group or the other being parties to the writ petition. This Court is not concerned with the political bona

fides or the commissions and omissions of each group or the motives and conduct of the writ Petitioners leading to this episode.

Paragraph 2(1) (a) and 3 of the Tenth Schedule had already been extracted above. The expression ""original political party"" has been defined

under Paragraph 1(c) as follows:

original political party"" in relation to a member of a house, means the political party to which he belongs for the purpose of sub-paragraph(1) of

paragraph 2;

Therefore, what is required is a split in the original party. The word has not been defined or elucidated anywhere under the Tenth Schedule. Both

Learned Counsel representing Respondents 4 and 5 stressed that the split should be purposeful and meaningful and not a mere farce of split and

that the object of the Tenth Schedule was to eliminate the evil of horse-trading. Therefore, the split should be a vertical split and hence, the speaker

was right in his conclusions.

Though the attempt to pass this Legislation succeeded only in the year 1985, the Parliament had expressed its concern over the evils of

defection as early as 1967 when the Parliament adopted a non-official resolution to constitute a High Level Committee which culminated in the

Chavan Committee Report and Anti-Defection Bills of 1973 and 1978. The original attempt was only to curtail defection and that the defector

should be rendered ineligible for certain offices of profit. In other words, the immediate reward of power or office of profit was sought to be

curtailed. But this was found inadequate and it was felt that it would be appropriate to amend the Constitution with a view to disqualify a defector

from his continued Membership of the Legislature - vide the statement of Objects and Reasons appended to the Bill which was introduced on

16.5.1973. Long thereafter, the Legislation in the present shape was formulated only in the year 1985, after also taking into account the situation

arising out of split, merger, or voting in the House contrary to the direction of the party or abstaining from voting and being expelled from the party.

Though the introduction of the Tenth Schedule was voted unanimously by all the members present, sharp views were expressed for and against

specific provisions such as disqualifying a member for having been expelled from a political party, exception being made in favour of the split and

merger and the power to disqualify being vested with the sole authority of the Speaker etc. After discussion, the Government acceded to the

demand of dropping the controversial provision from the Bill relating to disqualification of member on his expulsion from his political party for his

conduct outside the House. Merger and split are accepted to be exceptions to the Rule of disqualification on a plain reading of Paragraphs 3 and

In the context of voting against the directions of the party or abstaining from voting, the political party is empowered to condone such

misconduct on the part of a member as incorporated in Paragraph 2(1) (b) of the Tenth Schedule.

The reason why I am referring to these aspects is only to highlight that the Parliament had recognised varying shades of conduct on the part of

legislative member vis-a-vis the consequent effect of disqualification. The exception of split and merger came to be recognised in deference to the

opinion that the Anti-Defection laws should not be used oppressively violating freedom of conscience and expression. The Parliament had to strike

a balance between an intentional defector and horse-trading only for the sake of power and money on the one hand and a honest dissent by a

group of at lest one-third of members on the other hand. They have a right to express themselves freely against an autocratic or corrupt leadership.

The Constitution Bench of the Supreme Court recognised this position in Kilhota ''s case and observed that the provisions could possibly ""hurt

even honest dissenters and conscious objectors."" The Court proceeded further to observe as follows that the Legislature had envisaged the need to

provide for such floor-crossing on the basis of honest dissent.

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.

Therefore, the Parliament and the highest Court of the land had recognised the need to provide for ""honest dissent"" and the scale to measure

the honest dissent was a split in the party followed by a faction in the Legislative party of at least to the extent of one-third of the total strength.

Weather the dissent which led to the split was honest or dishonest is not for the Court to consider. It is a matter for the conscience and opinion of

the dissenter and his group. Consequently, while assessing the split in the party a pragmatic approach has to be adopted. The Court has to only see

whether there has been a dissension in the original party outside the House resulting in faction of one-third of the members of the inside the House.

The arithmetical minimum of one-third is only in the context of the Legislature party and not the Party outside. The Parliament also had carefully not

used the expression ""one-third or ""vertical split anywhere in the Tenth Schedule in the context of the split in the original party. Even in the context of

merger as provided under paragraph 4, the requirement of two-third of the members opting for merger, is restricted only to the Legislative Party

and not the original party. In fact, it is significant to note that under paragraph 4, there is no scope of ascertaining or bothering as to how many

members of the original political party had decided to merge. On the other hand even when a merger really takes place outside the original party, it

is immaterial for the purpose of the Tenth-Schedule to find out how many members in the original party were really in favour of the merger or

against it. The only test is how many members of the Legislative party have agreed to such merger. Even if the original party had en-masse decided

in favour of the merger, the speaker cannot recognise it unless two-third of the members of the Legislative party endorsed it. Likewise, in the case

of split also, irrespective of a vertical and overwhelming split of the party outside, unless a minimum of one-third members are prepared to form a

group the Speaker cannot be concerned with the so called split. Therefore, there is no purpose in giving too much importance to the expressions in

paragraph 3 ""split in the original party"". The Parliament could not be assumed to have adopted different yardstick for the ""split"" on the one hand

and the ""merger"" on the other. The dominant intention of the Parliament in enacting paragraphs 3 and 4 is only to see how many members of the

Legislature are prepared to endorse the split or the merger, failing which they should suffer disqualification. Any attempt by the Court to read

between the lines or to introduce a non-existent expression like ""vertical split"" into the constitutional provisions would amount to judicial Legislation

which is not permissible. But that is what the speaker has done in the present case, which cannot be sustained. The Constitution Bench in a

prophetic manner visualised the defects which are bound to arise in trying to define the word ""split"" and observed as follows:

There are some submissions as to the exact import of a ""split""- whether it is to be understood an instantaneous, one time event or whether a ""split

can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of the political party in the legislature

broke- away from it on particular day and a few more members joined splinter group of a couple of days later would the latter also be a part of the

split"" group. This question of construction cannot be in vacuo. In the present cases, we have dealt principally with constitutional issues. The

meaning to be given to ""split"" must necessarily be examined in a case in which the question arises in the context of its particular facts. No

hypothetical prediction can or need be made. We accordingly, lead this question open to be decided in an appropriate case.

Therefore, I am inclined to hold that the speaker''s observation in paragraph 15 of his order that there should a vertical split from top to bottom

in the party functionaries in the original party cannot be sustained. After stating the observation of the Supreme Court that the split must necessarily

be examined in the context of particular facts of the case, nevertheless added his own words stating that the split should be a vertical split in the

original party. The expression ''vertical split'' is generally used in the context of rival contentions before the Election Commission in cases arising out

of the Election Symbols (Reservation and Allotment) Order, 1968. When a political party divides into splinter groups, each group vying with each

other to retain the same name, flag and election symbol for obvious reasons, the Commission is vested with the discretion and jurisdiction under

Paragraph 15 of the order to decide that one of the rival factions is entitled to be treated as the recognised party and such decision will be binding

on all. It is only in the said context, the attempt on the part of rival groups would be to show that there has been a vertical split in the party and the

majority of the members of the various organs of the party including Members of Parliament and State Legislature, General Council, Executive

Committee of the party, District and Taluk level as well as gross-root level members are with them. Such requirements do not arise for

consideration under Tenth Schedule for deciding whether there is a split in the original party or not. What is required is the pleading and proof that

there has been a split in the original party outside the House, which had resulted in the division of the Legislature party. The ''honest dissent'' could

have arisen at the State level or District level or even at the Taluk level. The only possible test is to see whether the dissent had resulted in a faction

among the M.L.A.s and had the support of the requisite number. In fact, that is how T.M.C (M) itself was established as a splinter group of Indian

National Congress, an all India party and later recognised and registered by the Election Commission u/s 29-A of the Representation of the People

Act, 1951 as could be seen from the Order of the Election Commissioner referred to by both sides, dated 2.4.1996 and 7.4.1996.

Therefore, having regard to the discussion and conclusions on this issue, I am inclined to set aside the finding of the Speaker that it should be

shown ""that the split was vertical from top to bottom of the party functionaries in the original party."" The said finding is contrary to the

Constitutional mandate and amounts to erroneous interpretation and inconsistent with the provisions of the Tenth Schedule.

Point ''F'': While dealing with this issue at the outset, I may mention that both sides had referred to observations in the decision of the Supreme

Court in Mayawati Vs. Markandeya Chand and Others, in support of their mutual contentions. On a perusal of the said judgment it is seen that on

several issues, Their Lordships K.T. Thomas J. and Srinivasan J. in their separate judgments had expressed opposite views on the issues which

arose for consideration. The Third Judge His Lordship, the Chief Justice, after referring to the different views, did not render any finding beyond

stating that in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, , the Constitution Bench was silent on certain aspects and concluded as follows:

These determinations of importance, in my view, are necessary to be made before the matter can be examined as to the perversity or otherwise of

the Speaker''s decision, obligating him at a point of time to record categorically when the split took place thereby pinning ''the time of such split'' I

opine therefore, that the matter be referred to the Constitution Bench for decision.

Therefore, from the judgment as reported in All India Reporter, it is seen that the decision had been referred to a Constitution Bench by His

Lordship the Chief Justice, without rendering his opinion on the conflicting views. Therefore, I am disabled from referring to any portions of the

said judgment.

Point ''F'' deals with the burden of proof and whether the burden has been properly discharged or not. It is settled proposition that as far as the

burden of proving the defection as arising Paragraph 2(1) (a) is concerned, is on the person who complains that the opposite party had defected

and thus incurred disqualification, namely, in this case, the burden would be on Respondents 4 and 5. The burden of proving that the opposite

party is entitled to the exemption under Paragraph 3 or 4 namely, that the defection was caused by the split or merger, the burden is on such

opposite party and in this case, the writ Petitioners. For the enquiry before the Speaker, no notice had been sent to the complainants/Respondents

4 and 5 and they were also not present nor represented before the Speaker. The Speaker had found that the fact that the writ Petitioners had

voluntarily given up their membership in the political party, was an admitted one considering that by their letter dated 20.9.2000 they had openly

proclaimed to be a separate group. Apparently borrowing from some of the observations contained in the judgment of the Supreme Court in Ravi

S. Naik and Sanjay Bandekar Vs. Union of India and others, the Speaker held that the expression ''voluntarily giving up his membership'' was not

synonymous with resignation and the words have wider connotation and that even in the absence, formal resignation from membership an inference

can be drawn from the conduct of a member that he has voluntarily given up his membership. Therefore, on an assumption that the writ Petitioners

have admitted about their voluntarily giving up their membership, the Speaker had proceeded further to consider whether the split had been

established or not. In the entire order, Paragraph 15 is the only portion where he had dealt with the said issue and it is better to extract the said

paragraph in full for proper appreciation.

Now coming to the issue of ''split'', it may be seen that the ''split'' in para 3 of Tenth Schedule of Constitution of India refers to the ''original political

party'' only. There is no concept in para 3 or elsewhere in Tenth Schedule, for split in the legislature party as such. The split is a complex

phenomenon. The Supreme Court held that the meaning to be given to ''split'' must necessarily be examined in each case in the context of its

particular facts. The true test for determining a ''split'' is to see whether it has occurred in the original political party as contra-distinguished from the

legislature party. Also, the ''split'' must be vertical in the ''original political party''. The Respondents have not shown that a split has occurred in the

original political party outside the legislature which put up candidates to fight election to the House of the legislature and that the split was vertical

from top to bottom of the party functionaries in the original political party. Therefore, there is no valid split in the original political party. The split in

the original political party should precede the split in the Legislature Party. As there is no valid ''split'' in the original political party which is a

condition precedent for recognition of a split in the legislature party, the contention of the Petitioners about the number of members required for

calculating 1/3 of the members in the legislature party in Tamil Nadu and Pondicherry put together has no relevance and therefore, I do not go into

it.

It is unfortunate that the Speaker had not done justice to the issue on hand. He has not seriously devoted discussion of the mutual contentions,

admitted pleadings by both parties and also the evidence which was available before him. As the Supreme Court had pointed out while dealing

with a petition under the Tenth Schedule, the Speaker was performing judicial functions and his position is one of a judicial Tribunal. His verdict is

subject to judicial review and there should be a proper and reasoned order dealing with the rival contentions. The only reason given by him for

holding that there was no split in the original party, is his assumption that the split should be vertical from top to bottom of all the party functionaries

and that the same had not been established by the writ Petitioners. I have already held that the said assumption is erroneous and opposed to the

Constitutional mandate. If the said reasoning is deleted there is no other reason in the order to sustain the finding. As regards whether the writ

Petitioners have properly pleaded and discharged their burden of establishing the split, there could, be no dispute over the fact that both in their

letter dated 20.9.2000 for recognition as a separate group and reply dated 16.12.2000 to the present notice, there is a clear pleading to the said

effect. In their letter dated 20.9.2000 they have stated that in the meeting held on the same day earlier, it was decided that T.M.C. (Rathinam alias

Manohar) group be constituted and a resolution to that effect was passed and that consequent on the split three members of the Legislature had

joined the said group. In the reply dated 16.12.2000 they have contended in paragraph No. 8 that during October, 2000 the parties suffered a

vertical split and in such split three out of five members of the Legislature had constituted a faction. Therefore, the writ Petitioners had properly

pleaded their claim of split and formation of a faction among the members of the legislation.

As regards evidence and proof of split, writ Petitioners rely on the following materials:

(i) The declaration sent by the three M.L.A.s.

(ii) According to the writ Petitioners, Respondents 4 and 5 had never disputed the split at Pondicherry and the meeting held on 20.9.2000 and the

fact of split at Pondicherry was admitted by Respondents 4 and 5 themselves.

(iii) The very Newspaper reports filed and relied upon by the Respondents themselves amply demonstrate the split in the party and there has been

no denial by the Respondents about the truth of the fact reported in the Newspapers.

Per contra, both Learned Counsel representing Respondents 4 and 5 contend as follows:

(1) there is no admission of split by them.

(2) There is absolutely, no evidence oral or documentary on the side of the writ Petitioners. They have positively stated about the passing of a

resolution and the resolution has not been produced and hence adverse inference has to be drawn.

(3) Newspaper reports were filed only to highlight the indiscipline exhibited by the writ Petitioners and their group and there is no admission by the

Respondents about the truth or the veracity of the reports. They are not admissible in evidence and cannot be treated as proof of the Contents of

the reports.

I have considered the arguments of both sides and also perused the pleadings and evidence by both sides. It may be clearly stated that there is

no specific admission as such by Respondents to the effect that there was a split in the Pondicherry Unit of the party. But the surprising feature of

the stand of the Respondents is that as against the positive assertion by the writ Petitioners that there was a split in the meeting held on 20.9.2000,

there is absolutely no denial of the said claim. The very basis of the Respondents having filed the present petition for disqualification is the letter of

the writ Petitioners dated 22.9.2000, which has been marked as Annexure-12, seeking recognition as a separate group, in which the writ

Petitioners have stated about the split on 20.9.2000. Surprisingly in the (Respondents 4 and 5) petition, there is no specific denial of the claim,

which is a crucial feature. Up to the end of paragraph no 9, Respondents had dealt with their organisational set up and how both the Tamil Nadu

and Pondicherry units were monolithic and a single party. In paragraph No. 10 there is a statement that the writ Petitioners have defected and to

prove the same, reference is made to Annexure 12, the letter dated 20.9.2000 and annexure 13 and 14, the Newspaper Reports. In paragraph

No. 10, the allegation of the split is denied. In paragraph Nos. 12 to 14, the Respondents emphasis the need of vertical split of the entire party

including that of the Tamil Nadu Unit and Tamil Nadu Legislature party and that the defection of certain M.L.A.s in the Pondicherry unit alone was

not sufficient. Instead of denying the meeting said to have held on 20.9.2000 or at least stating that there was no split on the organisational side of

the Pondicherry unit, the Respondents had only chosen to harp upon the need for the split of the party at Tamil Nadu also as well as the Tamil

Nadu Legislature party. Such a submission is in a way an indirect conceding and not disputing the split in Pondicherry. Reference was made to the

counter affidavit filed by Respondents 4 and 5 before this Court denying the meeting and disputing the split in Pondicherry. 1 am afraid the

Respondents cannot be allowed to improve their case before this Court which they have not specifically pleaded before the Speaker. Therefore,

the failure to specifically deny the meeting on 20.9.2000. and the split within Pondicherry Unit stares against the case of Respondents 4 and 5.

On the contrary, the Respondents had chosen to rely on the Newspaper reports which they have themselves filed as Annexures, which have

very elaborately reported the meeting on 20.9.2000 as well as the split in the Pondicherry unit. This is what the Respondents specifically state in

paragraph No. 10 of their petition before the speaker. ""The evidence of their said acts are filed herewith as Annexure 12,13 and 14. Having

chosen to positively rely on such a reports, now the Respondents cannot be allowed to reprobate. It is true and it is settled proposition of law that

Newspaper reports would only raise a presumption of publication u/s 81 of the Evidence Act, but there is no proof of the contents unless the

author of the report is examined as a witness. But a party who relies on the report cannot be allowed to back-track unless he has denied the

veracity of the report promptly and immediately after his publication. On the other hand, Respondents had chosen to file and rely on the said

reports which had relieved the burden of the writ Petitioners, to prove the contents of the report. It should be appreciated that when a Plaintiff

produces the evidence which he thinks would support him, but in effect it proves the case of the Defendant, the Defendant is lulled into thinking that

he is relieved of the responsibility to adduce any further evidence. It would therefore,, be unfair on the part of the Plaintiff to reprobate and to raise

a contention and that there was no proof of the contents and that he filed the Newspaper reports only to be ignored.

There is no reason why in a case of this type where adjudication relates to political parties and public interest is involved, reliance cannot be

placed on Newspaper reports. There is also no reason why it cannot be used against the very party who had filed the Newspaper as evidence in

the proceedings. The only exception is where the affected party has promptly denied the contents of the report. In fact in Ravi S. Naik and Sanjay

Bandekar Vs. Union of India and others, arising under the Tenth Schedule itself, in paragraph No. 27 the Supreme Court had relied on the

Newspaper report and the photographs published in the Newpaper disclosing the member meeting the Governor. The Supreme Court upheld the

order of the High Court in having relied on the Newspaper evidence observing as follows:

The High Court has rightly pointed out that the Speaker in referring to the Photographs was drawing an inference about a fact which had not been

denied by the Appellants themselves, viz., that they had met the Governor along with Dr. Wilfred D'' Souza and Dr. Bar Bosa on December 10th

1990 in the company of Congress (I) ML As etc., the talk between the Speaker and the Governor also refers to the same fact. In view of the

absence of a denial by the Appellants of the averment that they had met the Governor on December 10 1990 accompanied by Dr. Barbosa and

Dr. Wilfred D'' Souza and Congress ML As the controversy was confined to the question whether from the said conduct of the Appellants an

inference could be drawn that they had voluntarily given up the membership of the MGP. The reference to the Newspaper reports and to the talk

which Speaker had with the Governor, in the impugned order of disqualification does not, in these circumstances, introduced an infirmity which

would vitiate the said order as being passed in violation of the principles of natural justice.

In the present case, the position of the writ Petitioner is better considering that the evidence had been produced by the Respondents

themselves thereby relieved of proving the contents. The writ Petitioners are not questioning the veracity of the said evidence and not required to

prove the contents.

It is also interesting to observe that the very same Speaker, the first Respondent herein had on an earlier occasion by his order dated

8.9.2000.(Annexure 17) while disqualifying another member by name M. Manjini, chose to rely on a Newspaper report which contains an

interview of M. Manjini. It was accepted on the ground that Manjini had not denied it. But for the reasons best known by the Speaker, in the

present case, he had chosen to turn a blind eyes to several Newspaper reports evidencing the split in no uncertain terms and the Speaker had not

even whispered about them, especially considering that the complainants themselves had filed them as their evidence. Therefore, there is absolutely

no bar to look into the Newspaper reports and they clearly supports the case of the writ Petitioners of the split in the party. Annexure 14 is a

report of the Dinamani dated 21.9.2000 reporting that on the previous day the T.M.C had split and the dissenting three M.L. As have also met the

Secretary of the Assembly. Another report says that on the same day, one Mr. Kannan has resigned his post as the President of the Pondicherry

unit of the Party. In his interview he has stated that even four days earlier he had sent to the High Command the letters of resignation of the office-

bearers of Women wing, Youth wing and Student wing. There are similar Newspaper reports by Indian express. ""Malai Malar"" ""Daily Thanthi

etc., It is pertinent to note that there is no denial of the veracity of the news from the organisational side of the party. If Kannan''s resignation as the

president of the party and his claim of the office-bearers of the Women wing, Youth wing and Student wing resigning from their respective posts,

go un-contradicted, it would be futile to contend that there is no split in the party. All these events had taken place on 20th and 21st September

2000 and the writ Petitioners had informed about the factum of a new faction on 20.9.2000. It is not necessary to refer to each and every

Newspaper filed by Respondents 4 and 5 which go very long way to clearly establish that there was a split in the cross-section of the party.

Paragraph No. 15 of the Order of the Speaker which is the only paragraph dealing with the issue which has been extracted above, is blissfully

silent about all the said factors. In fact, the Speaker had not chosen to concentrate on the said issue at all and had foreclosed the entire issue by a

single sentence to the effect that the writ Petitioners had not shown that a split had occurred in the original party vertically from top to bottom of the

party functionaries and therefore, there was no valid split. The said finding is also based on erroneous assumption that there should have been a

split in the Tamil Nadu unit of the party also. The least that could be said about the Speaker''s order is that it is vitiated by perversity. The

contention of the Learned Counsel for the Respondents that the alleged resolution had not seen the light of the day, pales into insignificance in the

face of the overwhelming evidence available on record produced by the Respondents themselves. It is settled law that burden of proof is not

something which could be encompassed in a strait-jacket formula. The burden of proof depending upon the pleadings and the available evidence

keeps shifting from one to other and if adequate evidence is available on record, the court cannot turn a blind eye to it, on the ground that it has not

been filed by the person on whom the burden lies.

Therefore, I am inclined to hold that the split in the original party and the resultant formation of faction of a members of Legislature of the party

has been established beyond doubt and hence the finding of the Speaker in this context, is vitiated by perversity.

Points ""D"" and ""G"" - both these points arising for consideration may be clubbed together considering that they are interconnected with the

allegation of bi3S mala fides by the writ Petitioners against the Speaker.

According to the writ Petitioners, the Speaker''s attitude was one of pre-deter-mined approach from the beginning to disqualify them. He

continued to be a party man and he did not resign from the party to which he belongs even after he had become the Speaker and he continued to

be member of the party which was inconsistent with the traditions of the office of the Speaker. It is further contented that in spite of requesting time

to enable the Petitioners to produce all the relevant documentary evidence. Sufficient time was not granted which had greatly prejudiced them. The

procedure adopted by the Speaker in not requiring the complainants/ Respondents to appear for the enquiry had resulted in violation of the

principles of natural justice and the writ Petitioners have been deprived of a fair procedure which would have enabled them to assess the actual

scope of the complaint and the evidence against them. The hearing was conducted in a huzzled manner and on the same night, the order copy was

served on them which betrays the anxiety on the part of the speaker to disqualify them.

Mr. Mohan Parasaran, Learned Counsel for the Speaker while denying the said allegations contended that there was no bar for the Speaker

continuing as a member of a political party as held by the Supreme Court. The allegation of bias and mala fides cannot be sustained by surmises

and assumption. The very fact that the Speaker was not hasty in taking any action against the writ Petitioners even after their letter dated

20.9.2000 and that he took steps for enquiries only after the complaint had been received from the Respondent, thus leaving no other alternative

for him, would disclose that he had neither any anxiety to disqualify them, nor had he acted in haste. Though he was not interested in defending his

order on merits, the counsels says that he would only point out that no evidence at all was produced on the side of the writ Petitioners to establish

split in the party. The regulation which was said to have been passed by their supporters was never produced before the enquiry. There was also

no question of violation of principles of natural justice considering that the writ Petitioners were given due time for filing their counter and to appear

for the enquiry. In fact, request for adjournment was also granted. Since the factum of voluntarily giving up the party membership was established

by their own contact in forwarding the letter dated 20.9.2000 there was no necessity to call for the Petitioners for the enquiry. Therefore,

according to the Learned Counsel for the Speaker he had conducted the proceedings in a fair manner and had rendered a proper judgment on the

basis of the materials before him.

57.I have considered the submissions of both sides. The fact that the Speaker continued to be a member of the Party which had set him up as a

candidate, is not a bar for his continuance of his office as Speaker. Nor is it possible to draw any adverse inference. There is no statutory provision

or any ruling of the Supreme Court which has been brought to my notice holding that the Speaker was disentitled to continue as a member of the

party.

Though I am unable to sustain the contention that there was violation on principles of natural justice in the strict sense of the term in having

conducted the enquiry in the absence of the complainants/Respondent, the procedure thus adopted by the Speaker is rather unusual and not

consistent with sound principles of a judicial proceeding. There is no violation of the principles of natural justice in the narrow sense considering

that a hearing has been given to the writ Petitioners, but the hearing should be fair and consistent with the basic principles of fair hearing namely, the

accused or the Respondent to the complaint should know in full as to what is the scope of the allegations, the evidence and the materials against

him. Disqualifying an elected member after holding him guilty of a misconduct of defection is a serious violation of public policy and amounts to

inflicting a grave stigma against the person resulting in damaging his personal and political career. Therefore such a proceedings have to be

conducted in a manner to inspire confidence in his mind. Fair hearing includes right to know the allegations and evidence against him. Sir Wade in

his classical book on Administrative Law (VIII Edition at page 506) has expressed as follows under Chapter:

The right to fair hearing "" and under the sub-heading"" The right to know the opposing case.

A proper hearing must always include a fair opportunity to those who are parties in the controversy for correcting or contradicting anything

prejudicial, to their view.

The learned author proceeded further to quote Lord Denning''s observation in Kanda v. Government of Malaya 1962 A.C. 322 as follows:

If the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made

against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair

opportunity to correct or contradict them.

Therefore, the strange procedure which had been adopted by the Speaker in the present case, definitely amounts to a lack of fair hearing. The

Speaker before issuing notice-had certainly heard complainants and it was only on being satisfied on their submissions making out a prima facie

case, he had issued notice to the writ Petitioners. Therefore the writ Petitioners are entitled to know and identify the materials and reasons pleaded

against them. It is also seen that in the affidavit in support of the writ petition, The Petitioner has positively stated that he pleaded before the

Speaker to hear Respondents 4 and 5 at the first instance. The said preliminary objection was rejected in limine. This allegation has not been

denied by the Speaker in his counter.

Another inevitable question which arises for consideration is as to how the Speaker felt so sure that there would not been any occasion or need

to call upon the complainants to reply or explain issues or doubts which may be raised by the writ Petitioners in the course of the enquiry. The

Speaker should have bone in mind that the initial burden to prove the defection was on the complainants / Respondents. The burden of proof is a

factor which would shift depending on the evidence to be produced in the course of enquiry. Learned Counsel representing Respondents 4 and 5

and the Speaker contended that the letter dated 20.9.2000 conclusively established that the writ Petitioners had voluntarily given up their party

allegiance and there was no further material or evidence was required on the side of the complainants and therefore, there was no error in the

procedure adopted by the Speaker. If so I ask myself the following questions:

(i) Does it mean that the Speaker was convinced about the culpability of the writ Petitioners on the basis of the representations made before him by

the complainants behind the back of the writ Petitioners.

(ii) If so why then a hearing should have been given to the writ Petitioners?

(iii) How did the Speaker feel so sure that the writ Petitioners will not be able to produce any evidence and there will be no occasion to call upon

the complainants to clarify or submit their reply ?

That is the reason why one of the elementary principles of fair hearing by any judicial authority is hearing in the presence of both parties if one of

the parties do not respond to the notice that would be a different matter and the Enquiry Authority would be entitled to proceed ex parte. But in

the present case, for reasons best known to the Speaker, he did not issue notice to the complainants and for reasons known to the complainants,

they also did not appear for the enquiry. The resultant position is an unsatisfactory hearing to the writ Petitioners and a genuine apprehension in

their mind that a Speaker had made up his mind and that the hearing was only to complete procedural formality. The enquiry is followed by an

order served on them, the same midnight. Justice must not only be done but also should appear to be done.

As already pointed out, the Constitution Bench in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, held that the functions of the Speaker is

that of a judicial Tribunal. His decision would be subjected to judicial review only on very narrow and strict grounds and not the usual grounds

available to a Petitioner under Article 226 of the Constitution of India. The minority view of the Bench objected to entrusting such powers to the

Speaker whose existence was depending on the majority in the House and also that it was opposed to Constitutional Scheme of disqualifying the

elected members only through independent bodies like the Election Commission and the Election Tribunal (High Courts) constituted under the

Representation of the People Act and a subsequent appeal to the Supreme Court but the majority of the Bench upheld the validity of the Tenth

Schedule and the power of the Speaker as a result of their Lordships'' solemn hopes of the high traditions and the unique nature of the office of the

Speaker and that the powers to be exercised by them were judicial in nature. Therefore the least which is to be expected is that there should be

fair hearing which I am afraid is lacking in the present case.

I am also inclined to take note of yet another circumstance. As early as 20.9.2000 the writ Petitioners had given a letter for recognition of their

group. That is kept pending for no reason for two and half months. Again on 3.12.2000, a reminder is given to the Speaker. On the same day, the

petition to disqualify them comes into an existence and received by the Speaker on 4.12.2000. Therefore, things move fast and notice is given to

the writ Petitioners on 9.12.2000. On 16.12.2000 a reply is filed with a request to give them reasonable opportunity to file documents and for

hearing. On 19.12.2000, Speaker calls upon them to appear before him on 21.12. 2000. By a letter dated 20.12.2000, the writ Petitioner''s

request for 15 days time stating that they have to be prepared to meet several Constitutional and legal issues and to obtain legal advice and that his

lawyer had required 15 days time. But by letter dated 21.12.2000, the Speaker turns down their request for 15 days and grants only 3 days time

and to be heard on 24.12.2000. But on the representation of the writ Petitioners that their counsel from Madras would be able to come only on

25th, the hearing is adjourned from 24 to 25 and on 25th itself orders were pronounced after hearing. Though I cannot say that the Speaker failed

to give minimum required period considering the serious consequences of allowing a petition of the said nature and considering the situation in

which the Petitioners were placed to obtain assistance of a senior lawyer from Madras and to gather evidence on such legal advice, when request

was made for 15 days time an adjournment could have been granted at least for one week instead of 3 days. The allegation that they had no time

to gather evidence could have been avoided. I do not say that this circumstance would alone vitiate the enquiry. But it is definitely a feature which

had contributed to the feeling in the minds of the Petitioners that the Speaker was pre-determined to disqualify them.

Having regard to the aforementioned analysis though I have persuaded myself to hold that the allegation against the Speaker of bias has not

been strictly established, I am inclined to hold that the procedure adopted by him has certainly resulted in prejudice to the writ Petitioners and the

nature of hearing cannot be stated to be fair. I have already held that the conclusions reached by the Speaker that there should be a vertical split in

the organisation of the party in Tamil Nadu and Pondicherry is not legally sustainable in terms of the provisions of the Tenth Schedule. Therefore

there is violation of the Constitutional mandate. The finding that there was no evidence of split in the original party is also vitiated by perversity.

With the result while holding that the decision of the Speaker is nullity, I would fortify myself by quoting the following passages of the House of

Lords in Anisminic v. Foreign Comp. Comm. 1969 (2) A.C 147 ""Lord Reid: It has sometimes been said that it is only where a tribunal Acts

without jurisdiction that its decisions is a nullity. But in such cases, the word ""Jurisdiction"" has been used in a very wide sense and I have come to

the conclusion that it is better not to use the term except in the narrow and the original sense of the tribunal being entitled to enter on the inquiry in

quescion. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the

course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision

which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice it may in perfect

good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some

question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may

have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be

exhaustive,

Lord Pearce:�"" Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions

precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to

make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself

the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its

jurisdiction it would turn its inquiry into some thing not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these

things would cause its purported decisions to be a nullity.

Therefore on an overall consideration of the aforementioned discussion, I am inclined to hold that the decision of the Speaker is liable to be set

aside for the following reasons:

(i) The finding that there should have been a vertical one-third split in the organisation of the party as a whole both in Tamil Nadu and Pondicherry

is contrary to the Constitutional mandate and thus the Speaker had misdirected, himself.

(ii) Sufficient evidence was available before the Speaker disclosing split in the original party and his finding to the contrary is therefore, vitiated by

perversity.

(iii) The procedure adopted by the Speaker in not conducting the enquiries in the presence of the complainants/Respondent amounts to lack of fair

hearing.

In the result all the writ petitions are allowed. No. costs. Consequently, connected W.M. Ps are closed as unnecessary.

Learned Senior Counsel for the Respondents 4 and 5 prays for interim suspension of the orders of this Court to enable them to file an appeal.

There will a restricted interim order of suspension only to the extent that the writ Petitioners will not be entitled to attend this session of the

Legislature or to take part in the proceedings for a period of one week.