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Article 191(2) in The Constitution Of India 1949
Kihoto Hollohan vs Zachillhu And Others on 18 February, 1992
Ravi S. Naik vs Union Of India on 9 February, 1994
G. Viswanathan vs The Hon'Ble Speaker Tamil ... on 24 January, 1996
Election Commission Of India & ... vs Dr. Subramanian Swamy & Another on 23 April, 1996

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Bombay High Court
Dr. Wilfred A. De Souza & Others vs Shri Tomazinho Cardozo Hon'Ble ... on 7 September, 1998
Equivalent citations: 1999 (1) BomCR 594
Author: R Batta
Bench: R Batta, J Patil



ORDER
 

R.K. Batta, J. 

1. The petitioners have invoked writ jurisdiction under Article 226 of the Constitution of India on account of common judgment dated 14th August, 1998, passed by the Speaker of Goa Legislative Assembly in Disqualification Petition No. 1/1998 filed by respondent No. 2 and in Disqualification Petition No. 2/1998 filed by respondent No. 3 whereby the petitioners have been disqualified with effect from 27-7-98 from the membership of Legislative Assembly of Goa in terms of Article 191(2) of the Constitution of India, as a result of their disqualification under the Tenth Schedule of the Constitution of India. Both these disqualification petitions were filed on 27-7-98. At the relevant time respondent No. 2 was Chief Minister of Goa and respondent No. 3 was Minister in the Cabinet.

2. In the Disqualification Petition No. 1/98, filed by respondent No. 2 it was stated that the present petitioners had submitted an intimation dated 27-7-98 to the Speaker and in the said intimation petitioners did not aver that there is a split in the original political party viz. Indian National Congress (INC for short) to which they belong and that there was no whisper of any split of any political party. It is further averred that the petitioners had merely stated therein that they had decided to form a separate group in Congress-I Legislature party (CLP for short). In the said petition, it was further stated that as already intimated to the Speaker, vide intimation dated 25-7-98, two members of the House viz. Shri Joaquim Alemao and Shri Arecio De Souza, earlier belonging to United Goans Democratic Party (UGDP) have already been admitted as members of INC Legislature party; that as already intimated to the Speaker under intimation dated 27-7-98. Shri Chandrakant Chodanker, Dr. Carmo Pegado, Smt. Fatima D'Sa, Shri Jagdish Acharya and Shri Deo Mandrekar (petitioners Nos. 6 to 10 in this writ petition) have already been expelled from the Indian National Congress party; that the present strength of INC legislature party is 20 after excluding the five members who have been expelled; and that there cannot be any recognition of two groups in the legislature party which is obvious from the definition of "Legislature Party" in Paragraph 1 of the Tenth Schedule. This Disqualification petition was filed against the petitioners Nos. 1 to 5 in this writ petition. It is further contended in the Disqualification petition that the petitioners Nos. 1 to 5 have, in view of their joint intimation dated 27-7-98, to the Speaker, in no uncertain terms admitted that they have voluntarily given up their membership of the original political party viz. INC as defined in Clause (c) of Paragraph 1 of the Tenth Schedule. Consequently, in view of Paragraph 2 of the Tenth Schedule, petitioners Nos. 1 to 5 are disqualified from being members of the House as they cannot claim to constitute a group consisting of not less than 1/3rd of the members of INC legislature party inasmuch as the petitioners Nos. 1 to 5 formed a group of only five persons and the INC legislature party comprises presently of 20 members in the Legislative Assembly. On these facts and relying upon Paras 2 and 3 of the Tenth Schedule it was urged that the present petitioners Nos. 1 to 5 have incurred disqualification under Article 191(2) read with Tenth Schedule of the Constitution of India. Accordingly, a declaration was sought that the petitioners Nos. 1 to 5 have become subject to disqualification under the Tenth Schedule and they should not be allowed to participate in the Assembly proceedings hereafter and/or vote in the course of such proceedings. Ad interim ex parte relief was sought so as not to allow the petitioners Nos. 1 to 5 to participate in the Assembly proceedings hereafter and/or vote in the said proceedings.

3. In Disqualification Petition No. 2/1998, which was filed against all the petitioners, it was urged that ten members of the House who have submitted intimation dated 27-7-98 to the Speaker have in the said intimation, not even averred that there is a split in their original political party viz. INC to which they belong: that there is no whisper of any split of any political party much less their original political party viz. INC; that only what has been stated is that they have decided to form a separate group in the Congress-I Legislature Party and that in the same Legislature Party there cannot be recognition of two groups which is obvious from the definition of "Legislature Party" in Para 1 of the Tenth Schedule. It is further averred in the said Disqualification petition that all the petitioners have, in their joint intimation dated 27-7-98 in no uncertain terms admitted that they have voluntarily given up their membership of the original political party viz. INC as defined in Clause (c) of Paragraph 1 of the Tenth Schedule and consequently in view of Paragraph 2 of the Tenth Schedule all the petitioners are disqualified from being members of the House since they cannot claim to belong to any faction as a result of the split inasmuch as there is no averment of any split of political party. Relying upon Paragraphs 2 and 3 of the Tenth Schedule, identical declaration was sought as well as ad interim ex-parte relief.

4. The stand taken by the petitioners in the said Disqualification petitions is that the petitioners are a group who have split from the original political party namely INC; that letter dated 27-7-98 to the Speaker has not been properly construed as the only conclusion which can be drawn therefrom is that there has been a split in the original party on account of which the petitioners had sought separate sitting arrangement in the Legislative Assembly as members of Goa Rajiv Congress group (GRC for short). It is further averred that the petitioners had met on 24th July, 1998 at the residence of the first petitioner where the petitioners had resolved and decided to split from the original INC party and formed a new party known as GRC party. It is further stated that petitioners have by letter dated 27-7-98 intimated to the Governor of Goa that the petitioners originally belonging to Congress-I party have split from the original INC party and formed a group known as GRC party. In the said letter, a claim was put up by petitioner No. 1 to form a Government with the support of the members of the Legislative Assembly belonging to MGP, BJP and one independent and that the Chief Minister namely respondent No. 2 should be called to resign from office. Along with the reply, the petitioners filed their affidavits stating that in a meeting held on 24-7-98 at 7.15 p.m. at the residence of the first respondent they had decided to split from INC original party and the said split was conveyed to the Speaker vide letter dated 27-7-98. It is also stated in the said affidavits that Speaker was asked to make separate sitting arrangements for them. It is further averred in the said reply that the claim made in the intimation dated 25-7-98 in para 8 in the Disqualification Petition No. 1/98 that the petitioners Nos. 6 to 10 had been expelled from INC party is false and mala fide and a fabricated claim. It was also pointed out that the petitioners Nos. 6 to 10 never received any show cause notice for their expulsion for any anti-party activity and, on the contrary, the said petitioners Nos. 6 to 10 throughout defended the interest of Congress-I party in the House till 24th July, 1998. According to the petitioners, the false claim of expulsion of petitioners Nos. 6 to 10 was engineered and manipulated. Besides denying the factual averments, certain preliminary objections were also raised by the petitioners, but it is not necessary to record the same as no arguments have been advanced before us on the basis of the said objections. Nevertheless it is necessary to point out that the petitioners had taken the plea of bias and mala fides as against the Speaker against whom a no confidence motion had been moved by two members of the MGP and one member of BJP.

5. The parties relied upon documentary evidence before the Speaker and no oral evidence was led. The Speaker framed a number of issues, out of which the following issues are relevant and material for decision since the other issues pertain to technical objections raised by the petitioners :--

(a) Whether the petitioners (respondents Nos. 2 and 3 in the petition before us) prove that the respondent (petitioners before us) have become subject to disqualification on the ground of defection as contained in para 2 of the Tenth Schedule of the Constitution of India.

(f) Whether respondents prove that the adjudicating authority has a bias and should not hear the petitions.

(g) Whether respondents prove that there is a split in the original political party not attracting disqualification under the Tenth Schedule as provided in para 3 of the Tenth Schedule of the Constitution of India. In the impugned judgment, the Speaker held that under the Tenth Schedule and the provisions of the Constitution, no other person could act as adjudicating authority and that the doctrine of necessity had to be necessarily invoked. According to the Speaker, the apprehension of the petitioners of bias was totally untenable and unfounded. Regarding issue (a) the Speaker came to the conclusion that petitioners Nos. 6 to 10 have voluntarily given up membership of their political party by joining GRC party thereby attracting disqualification under para 2(1)(a) of the Tenth Schedule of the Constitution. The order of expulsion of petitioners Nos. 6 to 10 was accepted by the Speaker, on the ground that he had received the said expulsion order on 27-7-98, but he disbelieved resolution dated 24-7-98 of the petitioners and according to him the said resolution had been prepared only to counter the case of the petitioners in the disqualification petitions. He also came to the conclusion that on the date of defection i.e. on 27-7-98, if the expelled members are not taken into account in the total strength of the Legislative Assembly, the other defectors namely petitioners Nos. 1 to 5 being five out of twenty, have clearly incurred disqualification. The Speaker also came to the conclusion that there was no averment of split in the Primary Committee, Subordinate Congress Committee/Block Committee, District Congress Committee. Pradesh Congress Committee and All India Congress Committee; that no other person except the petitioners attended the meeting held on 24-7-98 at the residence of the petitioner No. 1; there is no proof of split in the party outside, nor of wider split. According to him, the sine qua non to escape the consequences of disqualification is the existence of split and in the absence of split in the original political party even if the number of defectors consists of a group of not less than 1/3rd members, the requirement of para 3 of the Tenth Schedule is not satisfied. Though in para 74 of the judgment the Speaker held that prima facie the contention of Advocate for the petitioners in disqualification petitions that there should be vertical split throughout the entire party may not be tenable, yet in para 81 he held that though 1/3 split in the organization/ original political party is not required, but split should be at all rungs. Finally he concluded that the present petitioners had failed to discharge the burden to prove that there is split in the original political party to avail the benefit of para 3 of the Tenth Schedule and consequently disqualifications followed. He referred to and relied on various judgments quoted before him including the judgments of the Apex Court in Kihoto Hollohan v. Zachillhu and others, 1992 Supp. (2) S.C.C. 651; Ravi S. Naik v. Union of India and others, 1994 Supp. (2) S.C.C. 641; G. Viswanathan v. Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras and another, and Election Commission of India and another v. Dr. Subramaniam Swamy and another, .

6. Before proceeding ahead we shall at this stage record in brief the events which took place before the filing of the disqualification petitions and thereafter insofar as they have bearing for the purpose of decision on the petitions before us. After the General Assembly elections held in 1994, the party position of various political parties was as under :

(a) INC - 18 seats.

(b) MOP - 12 seats.

(c) BJP - 4 seats.

(d) UGDP-3 seats.

(e) Independent - 3 seats.

Petitioners Nos. 6, 9, 10 and respondent No. 3 were elected members of MGP. but in January, 1995 they joined INC, as a result of which the strength of INC increased to 22 members in the House of 40 members. The other petitioners, respondent No. 2 and respondent No. 4 were elected at the inception as candidates put up by the INC. Respondent No. 1 was also elected on INC ticket and was chosen as Speaker of the Assembly. In 1997 Antonio Gaonker elected on UFDP ticket joined INC increasing its strength to 23. During the budget session which started on 29-6-98, two MLAs of MGP and one MLA of BJP on 13-7-98 gave notice of motion of removal of Speaker. As per Assembly Bulletin Part- II dated 24-7-98 issued by the Legislative Assembly of Goa the said notice was scheduled to come on 29-7-98 at 2.30 p.m. to seek the leave of the House to move the same. According to the petitioners, after the close of Assembly session on 24-7-98 they met at the residence of the first petitioner and resolved to split from the original political party and form a separate group by name GRC party under the leadership of the first petitioner. The resolution of split was not published as the alignment with the other political parties had not been finalised. On 27-7-98 at 9.00 a.m. first petitioner accompanied by 22 other MLAs went to Raj Bhavan and submitted letter dated 27th July, 1998 to the Governor informing him of the split in the Congress-I Party and formation of separate party called Goa Rajiv Congress party and called upon the Governor to ask the respondent No. 2 Chief Minister to take confidence vote on the floor of the House. Along with this letter, separate letters of 23 MLAs were also placed before the Governor. Simultaneously, the petitioners Nos. 1, 2, 3, 6 and 7 also submitted letters of resignation from the Cabinet headed by respondent No. 2. According to the petitioners, the Governor advised them to move a motion of no confidence against the then Government of respondent No. 2 as the House was already in session. The petitioners informed the Speaker at 12.30 p.m. on 27th July, 1998 of formation of a separate group and sought allotment of separate seats for them and they were allotted separate seats in the House by respondent No. 1 from 27-7-98. At about 12.00 noon on 27-7-98 respondent No. 2 accompanied by Shri Luizinho Faleiro Minister/MLA met the Governor and requested that five Ministers namely petitioners Nos. 1, 2, 3, 6 and 7 be dropped from the Cabinet as they no longer enjoyed his confidence.

7. The petitioners' case further is that on 27-7-98 Treasury Benches disrupted the proceedings and at about 3.10 p.m. the Speaker adjourned the House till the next day, as a result of which the petitioners had no opportunity to defeat the Government led by respondent No. 2 on 27-7-98 itself. Accordingly, at about 4.00 p.m. first petitioner with 23 MLAs went to Raj Bhavan and protested of deliberately stalling of proceedings by the Treasury Benches and the role of the Speaker to adjourn the House to avoid defeat of the Government led by respondent No. 2 on the Floor of the House. Thereafter the Speaker called on the Governor at about 5.00 p.m. on 27-7-98 and respondent No. 2 called on the Governor again at 7.00 p.m. on 27-7-98. According to the petitioners it is at this time that the alleged expulsion as per purported Order dated 24-7-98 of petitioners Nos. 6 to 10 surfaced for the first time which document was clearly ante dated and fabricated. This expulsion included two Cabinet Ministers and Deputy Speaker which could not have been kept secret if it was true.

8 In the evening of 27-7-98 respondent No. 2 filed Disqualification Petition No. 1/98 and respondent No. 3 filed Disqualification Petition No. 2/98 before the Speaker. These petitions were fixed for consideration of grant of interim relief on 28th July, 1998. At about 12.30 p.m. on 28-7-98 the Speaker passed ex-parte ad interim order restraining the petitioners from participating in the proceedings of the Goa Legislative Assembly from 28th July, 1998 and directed the petitioners to show cause on 29-7-98 at 10.00 a.m. as to why ad interim ex-parte order passed should not be confirmed pending final hearing and decision of the petitions. In pursuance of the directions of the Governor of Goa under Article 175(2) of the Constitution, respondent No. 2 sought Vote of Confidence at about 3.30 p.m. on 28-7-98. On this motion 16 MLAs voted in favour and 23 against, but in view of the interim order passed by the Speaker in Disqualification petitions, votes of the petitioners were not counted and the motion was held to have been carried by 16-13. The report in respect of the same was sent by the Speaker.

9. On 29-7-98 the Governor of Goa prorogued the House under Article 174 of the Constitution with effect from the close of session on 29-7-98. The Ministry headed by respondent No. 2 was dismissed under Article 164(1) of the Constitution by the Governor and the Governor invited the first petitioner to form the Government. The first petitioner was sworn in on 29-7-98 and was asked to prove his majority by 19-8-98.

10. The petitioners filed Writ Petitions No. 296/98 and 297/98 challenging the interim order passed by the Speaker on 28-7-98. Those petitions were heard and finally disposed of on 3rd August, 1998. The interim order of the Speaker dated 28-7-98 was set aside. In the said judgment it was held that looking into the entire set of facts the respondent No. 1 had acted in great haste and the said order was against all canons and principles of natural justice and it appeared that the said order was passed with the view to prevent the coming events which had cast their shadow before.

11. On 3rd August, 1998 Form I and III were filed on behalf of GRC Legislature party before the Speaker; on 4th August, 1998 respondent No. 2 filed Writ Petition No. 305/98 challenging the order of dismissal of respondent No. 2 passed by the Governor of Goa. On 14-8-98 at 4.30 p.m. the Speaker passed the impugned order disqualifying the petitioners which is subject matter of the petitions before us. The grievance of the petitioners is that they were not furnished any copy of the order passed by the Speaker on 14-8-98 and the same was furnished to them only after 2.30 p.m. on 17-8-98. This, according to the petitioners, was deliberately done by the Speaker so as to forestall their remedy to approach this Court. On 14-8-98 Disqualification Petition No. 3/98 was filed by respondent No. 4 before the Speaker and notice was issued by the Speaker to show cause returnable for interim order on 17-8-98. On 18-8-98 Writ petition No. 305/98 filed by respondent No. 2 was dismissed.

12. The Speaker has denied any design, bias or mala fides on his part in the return filed by him and has invoked doctrine of necessity. Respondents Nos. 2 and 3 in their return have taken some preliminary objections, but the same were not pressed during the course of arguments and, as such, it is not necessary to record the same. The said respondents denied any mala fides on the part of the Speaker. Their case is that the petitioners did not meet at the residence of the first respondent nor any resolution was passed. According to them, the said resolution was ante dated with a view to avoid the effect of expulsion. They have denied that any split took place in the political party on 24th July, 1998 or thereafter. According to them, if there was split on 24th July, 1998, there was no justification for five Ministers to wait until 27th July, 1998 to submit their resignation letters to the Governor. It is further stated that there is no satisfactory contemporary evidence to show that there was any split in the original political party. Respondent No. 4 has taken the stand that there is misjoinder of parties and/or cause of action and since no cause of action is shown against respondent No. 4, the petition is liable to be dismissed in limine.

13. We have heard learned Counsel for the parties at length. Learned Senior Counsel Shri A, Dessai argued on behalf of the petitioners, learned Senior Counsel Shri Kapil Sibal argued on behalf of respondent No. 2, learned Senior Counsel Shri K. Parasaran argued on behalf of respondent No. 3, learned Senior Counsel Shri V.B. Nadkarni argued on behalf of respondent No. 1 and learned Advocate Shri A.N.S. Nadkarni argued on behalf of respondent No. 4.

13A. Learned Senior Counsel Shri V.B. Nadkarni has urged before us that the order passed by the Speaker may be examined in accordance with the law laid down by the Hon'ble Supreme Court in Kihoto Hollohan v. Zachillhu and others (supra). According to him no case of bias or mala fide has been made out and that the Speaker had no option but to decide the matter on account of doctrine of necessity. It was pointed out by him that para 13 of the affidavit-in-reply filed by respondent No. 1 has not been denied in rejoinder filed by the petitioners.

14. Learned Advocate Shri A.N.S. Nadkarni submitted that the only allegations against respondent No. 4 are found in para 4 of the petition and that it is a clear case of misjoinder of parties and causes of action.

According to him, the matter cannot proceed unless respondent No. 4 is deleted and that qui timet action is not permissible in view of the law laid down by the Apex Court in Kihoto Hollohan v. Zachillhu (supra). He further urged that the Speaker has jurisdiction to entertain the Disqualification petition filed by respondent No. 4 though after the disqualification of the petitioners, the said petition may not survive.

15. The learned Counsel for the petitioners, learned Counsel for respondent No. 2 and learned Counsel for respondent No. 3 have advanced arguments before us on three aspects, namely :--

(I) Scope and extent of judicial review;

(II) Interpretation of Paragraph 3 of the Tenth Schedule and its applicability; and (III) Whether any interference is called for in the impugned order in the light of parameters of judicial review laid down by the Apex Court in Kioto Hollohan's case (supra).

We shall take up these aspects, one by one.

(I) Scope and extent of judicial review :

All the learned Counsel have relied upon the judgment of the Apex Court in Kihoto Hollohan v. Zachillhu and others (supra). In this case it has been held that the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal and it would be inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within non justiciable legislative area. It was further held that the power to decide disputed disqualifications under para 6(1) is peremptorily of a judicial complexion but the judicial review in the area is limited. In this respect the Apex Court has observed as under in Paragraph 101:--

"In the operative conclusions we pronounced on November 12, 1991 we indicated in clauses (G) and (H) therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in Paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution.

But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the courts is that inspite of a finality clause it is open to the Court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations. While exercising their certiorari jurisdiction, the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. An ouster clause confines judicial review in respect of actions falling out side the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the Court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice."

After referring to various decisions of the Apex Court, the extent and scope of judicial review has been laid down in Paragraphs 109 and 110 which read as under :-

"109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Paragraph 6, the scope of judicial review under Articles 136 and 226 and 227 of the Constitution respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a qui timet action would not be permissible. Nor would interference be permissible at an interlocutory state of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence."

According to learned Counsel for respondents Nos. 2 and 3 the order of the Speaker does not suffer from any vice falling within the doctrine of ultra vires; it is not in violation of any constitutional mandate (subject to the submission on Para (3); there is no failure to comply with rules of natural justice; a grievance as alleged of unfairness is not a matter which renders a decision a nullity; the order does not suffer from any infirmity on the ground of alleged perversity; there is no jurisdictional error, personal bias or mala fides is not available in view of the doctrine of necessity; there are no legal mala fides present and the decision rendered by the Speaker is the one falling within his jurisdiction. It is further urged by them that invariably the Speaker is likely to have political bias and prejudices, but inspite of that the Speaker has been invested with the jurisdiction under the Tenth Schedule in view of his high constitutional office and the principle that the robes of the Speaker do change and elevate the man inside. It is further submitted by them that the tribunal which has jurisdiction over a matter has jurisdiction to decide wrongly as well as rightly and in the absence of right of appeal certiorari jurisdiction cannot be used to rehear the case on evidence and substitute its own findings and that the certiorari will be issued only to correct an error of law which is apparent on the face of the record. It was further submitted that the Court cannot interfere in the finding of facts howsoever erroneous, which can be done in the case of an appeal and in this connection reliance was placed on Gafoora and another v. Dy. Director of Consolidation, Meerut and others, and Hari Vishnu Kamath v. Ahmad Ishaque and others, . Reliance was also placed on the judgment of the Apex Court in Election Commission of India v. Dr. Subramaniam Swamy (supra) on the question of doctrine of legal necessity.

16. The judicial review which is available in respect of an order passed by the Speaker/Chairman under Paragraph 6 is confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides non-compliance of rules of natural justice and perversity as has been laid down by the Apex Court in Kihoto Hollohan's case (supra). The matter is therefore required to be examined, keeping in view the said parameters which have been laid down by the Apex Court.

(II) Interpretation of Paragraph 3 of the Tenth Schedule and its applicability :-

In order to appreciate the arguments advanced by learned Counsel, appearing on both sides, it is necessary at this stage to refer to the rulings of the Apex Court in Kihoto Hollohan v. Zachillhu and others (supra). Ravi S. Naik v. Union of India and others (supra) and G. Viswanathan v. Hon'ble Speaker Tamil Nadu Legislative, Madras and another (supra) upon which reliance has been placed by all the learned Counsel for the partier

17. In Kihoto Hollohan's case (supra), the Apex Court has taken note of the Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-second Amendment) Act, 1985 which reads thus :

"The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance."

The Bill was preceded by appointment of a Committee known as the "Committee of Defections" which was constituted to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard. The Report dated, 7th January, 1969 of the said Committee was rather disturbing wherein it was found that in the short period from March, 1967 to February, 1968, 438 defections occurred and the lure of office played a dominant role in decisions of legislators to defect was obvious inasmuch as out of 210 defecting legislators from some of the States, 116 were included in the Council of Ministers. Thus, the object underlying the provisions in the Tenth Schedule, as pointed out by the Apex Court, is to curb the evil of political defections motivated by the lure of office or other similar considerations which endanger the foundation of our democracy. After examining what is provided in Paragraphs 2, 3 and 4 of the Tenth Schedule, the Apex Court has observed thus in paras 13, 44 and 49 :--

"13. These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election."

"44. But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party's declared policies will not only embarass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by members of the same political party is not looked upon. In political tradition, as a desirable state of things.

49. Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification of defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People apparently, have grown distrustful of the emotive political exultations that such floor crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct whose awkward erosion and grotesque manifestations have been the bane of the times above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. We should, we think, defer to this legislative wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. "Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end... "are constitutional."

18. In the said case Shri Jethmalani, learned Senior Counsel appearing therein had attacked the statutory distinction between defection and split on the ground that if floor crossing by one member is an evil, then a collective perpetration of it by one-third of the elected members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences. The Apex Court found no substance in the said attack and observed in paras 51 and 52 thus :--

"51. This exercise to so hold up the provision as such cross imperfection is performed by Shri Jethmalani with his wonted forensic skill. But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound. 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 extent 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'.

52. Where is the line to be drawn? What number can be said to generate a presumption of bona fides? Here again the courts have nothing else to go by except the legislative wisdom and, again as Justice Holmes said, the Court has no practical criterion to go by except "what the crowd wanted". We find no substance in the attack on the statutory distinction between "defection" and "split"."

19. In Ravi Naik's case (supra) the provisions of Paragraphs 2 and 3 of the Tenth Schedule were examined by the Apex Court and the decision in this case has material bearing on the question under consideration. It is therefore necessary to go into the facts of this case and the law laid down therein.

After the revocation of President's rule on 25th January, 1991, Ravi S. Naik was sworn in as Chief Minister. On the same day Dr. Kashinath G. Zalmi belonging to the MGP filed a petition before the Speaker for disqualification of Ravi Naik on the ground of defection under Article 191(2) read with Para 2(1)(a) of the Tenth Schedule to the Constitution. On 15th February, 1991 Speaker Shri Sirsat passed order disqualifying Shri Naik from the membership of the Goa Legislative Assembly under Article 191(2) of the Constitution of India on the ground of defection as set out in para 2(1)(a) of the Tenth Schedule to the Constitution. Shri Naik filed writ petition before the Panaji Bench of this Court. Prior to that on 10th December, 1990, two separate writ petitions had been filed for disqualification of legislators Shri Bandekar and Shri Chopdekar on the ground of defection under Article 191(2) read with para 2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution. Shri Sirsat, Speaker, had declared both of them as disqualified and they filed writ petitions before this Bench of the High Court. When the said writ petitions were pending, Shri Sirsat was removed from the office of Speaker and Deputy Speaker started functioning as Speaker in his place. Legislators Shri Bandekar and Shri Chopdekar filed applications for review of their order of disqualification dated 13th December, 1990 and the review applications were allowed by the Deputy Speaker functioning as Speaker by Order dated 7th March, 1991. The result was that Order dated 13th December, 1990 disqualifying the said Legislators Bandekar and Chopdekar was set aside. This order was challenged before this Bench of the High Court, but the writ petition was dismissed on the ground of laches on 4th February, 1992. Likewise, Shri Naik also filed an application for review of Order dated 15th February, 1991 under which he was disqualified and this review application was also allowed by the Deputy Speaker functioning as Speaker vide Order dated 8th March, 1991. Against this Order, writ petition was filed before this Bench of the High Court, but the same was dismissed on the ground of laches. Appeals were filed against the said orders before the Apex Court. The Apex Court allowed the appeal vide judgment dated 31st March, 1993. The Apex Court held that Orders dated 7th March, 1992 and 8th March, 1992 made by Acting Speaker in purported exercise of review were nullity and as such, Order dated 13th December, 1990 passed by Speaker disqualifying legislators Chopdekar and Bandekar and Order dated 15th February, 1991 passed by Speaker disqualifying Shri Naik continued to operate and that writ petitions filed by the said legislators Bandekar and Chopdekar and Shri Naik would stand revived. The High Court was directed to dispose of the same on merit. The same were dismissed by this High Court. This is how the appeals were filed by legislators Bandekar and Chopdekar and Shri Naik before the Apex Court which were disposed of vide judgment in Ravi S. Naik v. Union of India and others with Sanjay Bandekar and another v. Union of India and others (supra).

20. The Apex Court has recorded the facts relating to Disqualification Petition filed against Shri Ravi Naik. In the Disqualification Petition, the allegations were that Shri Naik has voluntarily given up membership of MGP and that he had claimed membership of his original party i.e. MGP and that by his said action Shri Naik had incurred disqualification for being member of the House in terms of Article 191(2) of the Constitution of India read with Paragraph 2(a) of the Tenth Schedule of the Constitution. After receiving notice of the petition Shri Naik sought one month's time to file reply and in the said application it was indicated that his case was going to be that he and several other members of the Legislative Assembly belonging to MGP along with him constitute a group which has arisen on account of the split in the original political party. The Speaker granted time of few days and another application for three weeks time filed by Shri Naik was rejected. Shri Naik was informed to appear before the Speaker for personal hearing on 13th February, 1991. On that day Shri Naik did not appear, but an Advocate appeared on his behalf and submitted his reply in writing in which it was stated :-

"(i) On the 24th of December, 1990 in the meeting held at Ponda, Goa, there was a split in the original Maharashtrawadi Gomantak Party. The meeting was attended, among others, by office-bearers namely Executive President, Shri Gurudas Malik, Joint Secretary, Shri Avinash Bhonsla, various executive members and workers of Maharashtrawadi Gomantak Party. It was decided that MGP (Ravi Naik Group) under my leadership be constituted. A resolution to that effect was passed.

(ii) Consequent upon the split, the following members of the Legislative Assembly of the original MG Party have joined the group representing the MGP Ravi Naik Group and constitute the group representing the faction which has arisen as a result of the said split in the original MG party and there are signatures to the declaration to that effects :

1. Shri Ravi S. Naik

2. Shri Ashok T.N. Salgaonkar

3. Shri Shankar Salgaonkar.

4. Shri Pandurang Raut.

5. Shri Vinaykumar Usgaonkar

6. Shri Ratnaker Chopdekar

7. Shri Sanjay Bandekar

8. Shri Dharma Chodankar."

Along with the said reply Shri Naik submitted xerox copies of resolution as well as declaration bearing signatures of eight MLAs. He also prayed that he be given time to adduce necessary evidence to substantiate the averments contained therein. He also prayed for 15 days time to produce affidavits and witnesses. The Speaker, vide order dated 15th February, 1991 examined two questions, namely: (1) Whether the alleged split is proved: and (2) Whether the group of MLAs who have disassociated from the party constitute one third of MLAs of the original party. Both these questions were answered in the negative. After the Speaker held that if there was really a split in the party and if separate group of MLAs of MGP was formed, it was incumbent upon the leader of the group to give information of the split to the Speaker under Rule 3 of the Disqualification Rules in Form I which information was not furnished and under Rule 4 of the disqualification Rules each member had to give a certificate by filing Form III which had also not been done. The Speaker also held that he had already Disqualified two MLAs and the order of stay passed by the High Court could not be taken into consideration. The Speaker had also held that no notice of calling the meeting at Ponda and other details of minutes and signatures of the persons who attended the meeting had been produced and in the absence of the same, the said facts were not proved. He also pointed out that no affidavit was filed even though he had suggested to produce the same. Thus the Speaker held therein that neither the split in the party had been proved nor there existed a group of one-third erstwhile MGP MLAs.

21. The High Court in the said case of Ravi Naik had laid emphasis on the point that in Para 3 of the Tenth Schedule, the burden of proof is on the member who claims that he and other members of his legislature party constitute a group representing a faction which has arisen as a result of split in his original political party and such a group consists of not less than one-third of the members of such legislature party. The High Court further held that since Shri Naik had made a claim that there had been a split, the burden of proof to establish that there was a split was on Shri Naik.

22. In this set of facts, the Apex Court examined the question of burden as well as requirements of Paras 2 and 3 of the Tenth Schedule, The Apex Court has pointed out that the burden to prove the requirements of Para 2 is on the person who claims that a member has incurred disqualification and the burden to prove the requirements of Para 3 is on the member who claims that there has been split in his original party and by virtue of the said split the disqualification under para 2 is not attracted. In the said case Shri Naik had not disputed that he had given up his membership of his original political party, but he had claimed that there has been split in the said party. Accordingly, the Apex Court held that the burden, therefore, lay on Naik to prove that the alleged split satisfied the requirements of para 3. The said requirements being:--

(i) The member of the House should make a claim that he and other members of his Legislature party constitute the group representing a faction which has arisen as a result of split in his original party; and

(ii) Such group must consist of not less than one-third of the members of such Legislature party. The Apex Court further held that in the said case of Naik, first requirement was satisfied because Naik had made such a claim and the only question was whether the second requirement was fulfilled. The Apex Court found that the total number of members in the Legislature party of the MGP (original political party) was eighteen and in order to fulfill the requirements of Paragraph 3 Naik's group should consist of not less than six members of the Legislature party of the MGP. Naik had claimed that at the time of split on December 24, 1990 his group consisted of eight members whose signatures were contained in the declaration, a copy of which was filed with the reply dated February 13, 1991. The Speaker had held that the split had not been proved because no intimation of this split had been given to him in accordance with Rules 3 and 4 of the Disqualification Rules, but the Apex Court over ruled the said reasoning on the ground that failure to give intimation on the part of the leader of the group that had been constituted as a result of the split does not mean that there has been no split. As to whether there has been split or not has to be determined by the Speaker on the basis of the material placed before him. The Apex Court thus held that the split was sought to be proved by declaration dated 24th December, 1990 whereby eight MLAs belonging to MGP declared that they had constituted themselves into a group known as MGP (Ravi Naik group) and the fact that such group was constituted was established by the said declaration. The Apex Court then examined whether as a result of the said group being constituted there was split in the MGP as contemplated in Para 3 of the Tenth Schedule. The two members Bandekar and Chopdekar who were excluded by the Speaker on account of their previous disqualification, which was stayed by the High Court, were held by the Apex Court to have been wrongly excluded and with their inclusion, Naik Group consisted of members of more than one-third of the legislature party of MGP. The Order dated 15th February, 1991 of disqualification passed by the Speaker was therefore held to be in violation of the constitutional mandate contained in Paragraph 3 of the Tenth Schedule to the Constitution and, as such the same was quashed in view of the law laid down in Kihoto Hollohan's case.

23. We shall now briefly refer to the case of G. Viswanathan v. Hon'ble Speaker Tamil Nadu (supra). In this case two AIADMK legislators were expelled on 8-1-1994. It was informed to the Speaker that the said legislators had joined another (new) party called MDMK. The Speaker disqualified them. The High Court dismissed the writ petition against the order of disqualification passed by the Speaker. The crucial question before the Apex Court centered around the interpretation of para 2(1)(a) read with Explanation thereto of the Tenth Schedule. In view of the Explanation to Para 2(1)(a) of the Tenth Schedule, it was held that even if a member is thrown out or expelled from the party, he will not cease to be a member of the political party that had set him up as a candidate for election for the purpose of the Tenth Schedule. It was further held that when a person is thrown out or expelled from the party which had set him up as a candidate and got elected, joins another (party) it would amount to voluntarily giving up membership of the political party which had set him as a candidate for election as such member. The act of voluntarily giving up membership of the political party may be express or implied. The Apex Court further held that the deeming fiction must be given full effect for otherwise the expelled member would escape the rigour of the law which was intended to curb the evil of defections which has polluted our democratic polity.

24. Learned Senior Counsel for the petitioners submitted before us that the order of the Speaker is the result of wrong application of Paragraph 3 of the Xth Schedule which is contrary to the constitutional mandate and such order is subject to judicial review in view of parameter laid down by the Apex Court in Kihoto Hollohan's case (supra). He pointed out that under the Constitution of India, there was no express recognition of political parties, which was introduced in the Constitution by Xth Schedule. According to him, the provisions of Xth Schedule maintain a balance between two important, but countervailing principles, namely freedom of expression and conscience of an elected representative and check against improper floor crossing. The Legislature has envisaged the need to provide for floor crossing on the basis of honest dissent which would be indicated by the "course of conduct commending itself to 1/3rd of the elected representatives" forming a Legislature Party. This, according to him, is the legislative perception when "defection" becomes "split". Relying upon the judgment of the Apex Court in Ravi Naik's case (supra), it is urged that two requirements have to be fulfilled in order to obtain the benefit of Paragraph 3 of the Xth Schedule, viz. :

(i) The member of the House should make a claim that he and other members of his legislature party constitutes the group representing a faction which has arisen as a result of a split in his original political party; and

(ii) Such group consists of not less than 1/3rd of the members of such legislature party.

According to him, this claim need not be in writing, but it can be by conduct as well. He has urged that the word "claim" means to assert and Paragraph 3 does not require any proof "prima facie or otherwise" of the fact that there is a group. The Speaker has no jurisdiction to seek proof about split and once a claim is made by a group, the only inquiry which is required to be made by the Speaker is as to whether the said group constitutes 1/3rd of the members of the legislature party. Such a claim need not be made formally to the Speaker at the time of formation of the group and such claim can be brought in at the time of defence to the disqualification petition, as can be seen from the case of Ravi Naik (supra). According to him, each word in the Constitution must be given full meaning and all the necessary requirements under Paragraph 3 are satisfied by the petitioners and the order of the Speaker disqualifying them is unwarranted. Thus, according to learned Senior Counsel for the petitioners, it is not necessary to prove the split in the original party, but what is required to be proved under Paragraph 3 of the Xth Schedule is the claim of such split, supported by group action consisting of not less than 1/3rd of the members of the legislature party.

25. Alternatively, it has been argued by him that the word "split" is not a term of art and it means alienation, severance or separation or disassociation or dissension or disconnection. It has been further argued that there is no particular form, manner or ceremony for a split in a political party and it can be inferred from circumstances; that all the members of the legislature party, are admittedly the members of the Congress political party and two of the petitioners are AICC members and 5 of them are PCC members; formation of separate party itself tantamounts to voluntarily giving up membership of the original political party which would also necessarily cause split in the original political party; that the Speaker in the impugned order at Paragraph 68 on page 60 has himself come to the conclusion that the petitioners have voluntarily given up the membership of their political party by having formed another political party, viz., Goa Rajiv Congress Party. It was further urged that though it was not necessary to show split in the original political party, yet the petitioners have placed enough material to prove the split, which includes resolution dated 24-7-98, letter dated 27-7-98 to the Governor, informing of the split, letter dated 27-7-98 to the Speaker for allotment of separate sitting arrangement which could only happen after there is split in the party, letter of resignation of petitioners Nos. 1, 2, 3, 6 and 7 as Ministers, tendered to the Governor, Forms I and III submitted by the petitioners to the Speaker on 3-8-1998, affidavits of all the petitioners to the effect that they had split from Congress party and have formed a new party, the petitioners Nos. 1 and 2 being 2 out of 6 members of AICC from Goa and the petitioners Nos. 1, 2, 3, 6 and 9 being members of PCC Goa. In view of the above, the conclusion of the Speaker on the basis of which the petitioners have been disqualified to the effect that there should be a vertical split in the political party at all rungs is not only absurd, but not pragmatic. According to him, if the logic applied by the Speaker is accepted, then it would mean that even if all the members of the legislature party form a new party, there would be no split within the meaning of Paragraph 3 and all members of the legislature party would be disqualified enmass.

26. Learned Advocate for the petitioners also urged before us that the expulsion order dated 24-7-1998 is a nullity because it was passed in violation of the principles of natural justice for want of notice to the petitioners Nos. 6 to 10, who were never even informed of disqualification till they voluntarily gave up the membership of the original political party. It was pointed out that there was no difference between expelled and unexpelled members of the legislature party, since even the expelled members are deemed to belong to the political party by which such member was set up as a candidate for election and if such expelled member along with others from the same party form a group and voluntarily give up membership of the original political party, then in view of Paragraph 3, they cannot be subjected to disqualification. Relying upon the judgment of the Apex Court in Viswanathan's case (supra), it was submitted that the Speaker's logic that 5 expelled members when they joined Goa Rajiv Congress Party were subject to disqualification under Paragraph 2 of the Xth Schedule and the remaining petitioners, namely petitioners Nos. 1 to 5 do not constitute 1/3rd under Paragraph 3, as a result of which, the said petitioners Nos. 1 to 5 also stand disqualified, is contrary to the law laid down by the Apex Court in Viswanathan's case (supra) and the same is an argument in vicious circle. It was also pointed out that whether the expulsion or the split took place on 24th or 27th July, 1998, does not have any material bearing, if it is established that a group consisting of not less than 1/3rd members of the legislature party have voluntarily given up their membership of the original political party and formed a separate group.

27. Learned Senior Counsel Shri Kapil Sibal urged before us that a member claiming protection under Paragraph 3 of the Xth Schedule has not only to make a claim, but he has to prove that he and other members of his legislature party constitute a group representing a faction which has arisen as a result of the split in his original political party. It is only when the split in the original political party is established, thereby resulting into a group that it has to be further examined whether such group consists of not less than 1/3rd members of such a legislature party. According to him. Xth Schedule need not have dealt with the political parties, if only 1/3rd number of the legislature party was considered sufficient for the purpose of protection under Paragraph 3 of the Schedule. According to him, Xth Schedule deals primarily with split in the political party, which is relevant for the purpose of preventing floor crossing by the members of the legislature party. He emphasized that Paragraph 2(1)(a) deals with voluntarily giving up membership of political party; Paragraph 2(1)(b) deals with abstention from voting contrary to any directions issued by political party without prior permission of such political party or subsequent condonation of such political party; Paragraph 3 deals with a situation where a group representing a faction, which has arisen as a result of the split in the original political party, but such group is saved from disqualification if it consists of not less than 1/3rd of the legislature party and Paragraph 4 deals with merger of the original party with another political party. According to him, mere claim as suggested by learned Senior Advocate for the petitioner, is not sufficient, but prima facie proof of split is required to be adduced before the Speaker and nature of the proof, of course, would depend upon the facts and circumstances of each case. The Speaker would not be concerned as to who goes where and with whom, but he must be prima facie satisfied that there is a split in the political party. It was further pointed out that the Speaker is entitled to decide any question which arises in relation to whether a member of House has become subject to disqualification and the claim made under Paragraph 3 is required to be substantiated by proof. According to him, the Apex Court did not interpret the expression 'split' in a political party in Kihoto Hollohan's case (supra) but from Ravi Naik's case (supra) it follows that the burden to prove the split in the original political party lies on the member who claims such split. It was thus urged that if mere claim was sufficient without any proof, then the Apex Court would have never stated that the burden of proof to prove the split was on Ravi Naik and besides that Paragraph 3 could simply provide that where 1/3rd members of legislature party form a separate group in relation to their original party, they shall not be subject to disqualification on the ground that they had voluntarily gave up the membership of the original political party. If Paragraph 3 is interpreted, as suggested by learned Advocate for the petitioners part of Paragraph 3 would become redundant and will have to be ignored, which is not permissible in the light of well recognised principles of statutory interpretation. On merits of split, his contention is that the petitioners have failed to prove the split and the disqualification order cannot be interfered with on this count.

28. Learned Senior Counsel Shri Parasaran urged that the question which has arisen for determination in this petition is not covered by any ruling, though rulings of the Apex Court do throw some light on the same. He emphasized that a member of Legislature party contests the election on a ticket issued by a party, the party publishes an election manifesto and the policies which it promises to pursue; that a candidate is thus elected by the people because of the policies reflected in the manifesto, which are promised to be pursued by him during his term of office; that if he either gives up membership of that political party Or joins any other political party, it would be a flagrant violation of mandate on which he had been elected; that even inspite of the above position Xth Schedule recognizes split in the political party on the basis of honest dissent; that such a split saves a member from disqualification, if he is part of a group which consists of not less than 1/3rd members of the Legislature party. According to learned Senior Counsel Shri Parasaran, Xth Schedule is devised to ensure against unprincipled defection for lure of office and in view of the words "arising as a result of split in his political party" have to be given a meaning and the interpretation of Paragraph 3 suggested by the learned Senior Counsel for the petitioners would make the said words/part of Paragraph 3 as totally redundant. He relied upon a number of rulings in support of the propositions relating to mischief and redundancy based upon the principles of interpretation of statute. It is well established that the construction which advances intention of the Legislation, remedies the mischiefs to thwart for which it is enacted, should be accepted and that the provision of a statute should be so interpreted, so as not to render any of its provision otiose. It is not necessary to refer to the rulings on this aspect since the position is now well settled.

29. According to learned Senior Counsel Shri Parasaran mere claim as suggested by learned Senior Counsel for the petitioner without any further proof is not sufficient and even prima facie legitimacy of such claim is to be decided by the Speaker under Paragraph 6 of the Xth Schedule. Ravi Naik's case (supra) itself speaks of burden to be discharged by the member who claims split in the original political party and in that case, Shri Ravi Naik prima face had established a split in the political party antecedent in time to the resultant faction in the legislature party at different levels in the organization had already occurred and Shri Ravi Naik was ready to lead evidence. Thus, according to him, existence of a split in the original political party is fundamental to the application of Xth Schedule. The word "split" presupposes a break from the original political party. It is further urged that a National political party has a vertical hierarchy, commencing from the lowest constituted level within the organization right upto the highest policy making body within the organization and if some members of the legislature party break away for lure of office and form a separate faction within the legislature party, it cannot, by any stretch of imagination be regarded as a split at various levels in the political hierarchy; that the Xth Schedule was conceived to ensure that members of legislature party without reference to the political party should not cross floors; that it is only those acts of crossing the floor which owe their genesis to a split in the political party which are sought to be legitimized under Paragraph 3 of the Xth Schedule and that the split in the original political party and the creation of the faction cannot be co-terminus under Paragraph 3 of the Xth Schedule. On merits of the split, it was urged that all the 10 defected members are holding ministerial posts, including the petitioner who is the Chief Minister and that it is crystal clear that they have crossed the floor only for lure of office.

30. Arguments are also advanced by learned Senior Counsel Shri Kapil Sibal and learned Counsel Shri Parasaran in relation to the documents produced by the parties in support of their case and this aspect we shall deal with when we take up the third point of determination.

31. In reply Senior Counsel Shri A. Dessai reiterated his contention that there are two parts of Paragraph 3 of the Xth Schedule, namely one relates to assertion of claim and the second relates to numerical strength. Therefore, according to him, if there is assertion of group claim then the Speaker has to see only 1/3rd number. He referred to Paragraph 124 of S.R. Bommai v. Union of India, , wherein it is stated by the Apex Court that it has to be emphasised here that although Xth Schedule was added to the Constitution to prevent political bargain and defections, it did not prohibit formation of another political party if it was backed by not less than 1/3rd members of the existing legislature party.

32. We have recorded, in details, the background in which the Xth Schedule was enacted prior to coming into force of the Xth Schedule, the Constitution had not expressly referred to the existence of political parties. But Xth Schedule does recognize the political parties and the role they play in the political process. Paragraph 2(1)(a) provides that a member of a house belonging to any political party shall be disqualified if he has voluntarily given up his membership of such political party. We are not concerned with Paragraph 2(1)(b) in the petition under consideration. Explanation (a) to para 2(1) provides that for the purposes of this sub-paragraph an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as member. We are also not concerned with the remaining part of the explanation and sub-Paragraphs 2, 3 and 4 of Paragraph 2 of the Xth Schedule. Paragraph 3 of the Xth Schedule, in so far as is relevant for the decision, reads as under :

"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 the 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 he disqualified under sub-Paragraph (1) of Paragraph 2 on the ground-

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

(ii) ..........................

(b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub Paragraph (1) of Paragraph 2 and to be his original political party for the purposes of this paragraph."

Paragraph 4 deals with merger of original political party with another political party with which we are also not concerned in this petition. However, it is important to note that Paragraphs 2, 3 and 4 deal with the situation with reference to political party/original political party and the original political party has been defined under Paragraph 1(c) as under :

"(c) original political party', in relation to a member of a House, means the political party to which he belongs for the purposes of sub-Paragraph (1) of Paragraph 2."

A combined reading of Paragraphs 2 and 3 of the Xth Schedule shows that if a member of a House voluntarily gives up his membership of a political party to which he belongs, then he incurs disqualification on the ground of defection, but when a group representing a faction which has arisen as a result of split in original political party consists of not less than 1/3rd of the members of such legislature party, such group is not subject to disqualification on the ground of defection due to split. In fact, in Kihoto Hollohan's case.

(supra) this statutory distinction between "defection" and "split" had been strongly condemned by learned Senior Counsel Shri Jethmalani. But the Apex Court found no substance in the said attack on the ground that the underlying premises in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed and the Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. But at the same time, legislature envisaged the need to provide for such floor-crossing on the basis of honest dissent. It was pointed out by the Apex Court 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 and 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'. This means that when a group consists of not less than 1/3rd member of legislature party, such group action lends credence and reassurance to a presumption of bona fides which is recognised by legislature while making a distinction between 'defection' and 'split' for the purpose of disqualification under the Xth Schedule and, as such, it may not be necessary to go into the question as to whether 1/3rd group was lured for office since such group action of split for the original political party takes out such case from arena of disqualification.

33. The question for determination is whether in view of the rival contentions mere claim of split in the political party is sufficient or that proof of split has to be adduced before the Speaker and such proof should reflect split at all rungs of the political party.

34. Neither expression "claim" nor "split" has been defined in the Tenth Schedule. The connotation of expression "claim" is assertion of rights and there is no dispute in this respect. How then the word "split" has to be construed in the context ? In Legal Thesauras by William Burton, the word 'split' has been defined by way of various expressions including separation, severance, dissention disassociation disconnection, detachment, part company, break, etc. The dictionary meaning of the word 'split' which can be applied in the context in which it is used in the Tenth Schedule could be severance/ separation of links with political party resulting in factions. There did not appear to be any dispute in the course of arguments on this meaning of 'split' and in fact, learned Senior Counsel Shri Kapil Sibal supported the same in the course of his arguments.

35. The claim which is required to be made under Paragraph 3 of the Tenth Schedule is that a group representing a faction has arisen as a result of split in the original political party. Applying the well settled principles of interpretation, the provisions in the statute have to be construed in such a way that it does not leave any part ineffective or result in any part being redundant. The construction which advances the intention of the legislation, remedies the mischief to thwart for which it is enacted should be accepted.

36. In this respect, learned Senior Counsel Shri Kapil Sibal had urged that mere putting up of claim would not be sufficient but prima facie proof in support of the claim would be required. He further submitted that the nature of evidence for the said purpose would depend upon facts and circumstances of each case. According to learned Senior Counsel, Shri Parasaran split has to be at various levels of the political hierarchy.

37. Applying the principles of statutory construction, in our view, mere bare claim would not be sufficient, to prima facie prove split resulting in faction/group and that such group consists of not less than one-third members of the Legislature party. Prima facie proof in support of claim shall have to be adduced before the Speaker. The Speaker has to prima facie satisfy himself that faction/group has arisen as a result of split. It is not at all necessary that it should be a vertical split at all levels or rungs of the political party. It is not for the Speaker to find out the extent or percentage of the split in the political party. However, when it comes to legislature party, the group claim representing the faction has to be not less than one-third of the members of the Legislature party.

38. At this stage, we would like to point out that the Committee on Defections was appointed by the Lok Sabha on 8th December, 1967 to consider :-

(a) The problem of legislators changing their allegiance from one party to another; and

(b) Their frequent crossing of floor.

The Tenth Schedule was enacted much after submission of report of this Committee. The Apex Court in Kihoto Hollohan's case (supra) has observed in para 12 thus :--

"12. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions of disqualification under Paragraph 2 in cases of "split" in the original political party or merger of the original political party with another political party."

39. The Tenth Schedule deals with defection from political parties which is effected through medium of floor crossing by its members of the Legislature party.

40. "Split" need not necessarily be showdown of groups inter se face to face in the party forum. It need not be a two-way affair, but it can be unilateral act of parting company, disassociation or severance/separation of links with the political party resulting in factions. Mere bare claim, by itself, without any further proof may not be sufficient.

41. In Ravi Naik's case (supra), the Apex Court while dealing with Paragraphs 2 and 3 of the Tenth Schedule held that the burden to prove the requirements of Paragraph 2 is on the person who claims that a member has incurred the disqualification and the burden to prove the requirements of Paragraph 3 is on the member who claims that there has been a split in his original political party and by virtue of the said split the disqualification under Paragraph 2 is not attracted. In that case, the Apex Court noted that Ravi Naik had not disputed that he had given up his membership of his original political party, but he had claimed that there had been a split in the said party and the burden therefore was on Ravi Naik to prove that the alleged split satisfied the recruitments of Paragraph 3. The Apex Court further observed in Paragraph 38 of the judgment that as to whether there was a split or not has to be determined by the Speaker on the basis of material placed before him and in the facts and circumstances of the said case the split had been established by declaration dated 24th December, 1990. The declaration as well as resolution was of the same date i.e. 24th December, 1990. In these circumstances, the Apex Court had held that the first requirement was satisfied because Ravi Naik had made such a claim. It is to be noted that the said claim was in fact supported by the declaration which substantiated the said claim. The Apex Court further examined whether as a result of the said group being constituted there was a split in MGP as contemplated in Paragraph 3 of the Tenth Schedule. The Apex Court held that the group consisted of one-third members of the Legislature party of MGP and, as such order dated 15th February, 1991 passed by the Speaker was quashed in view of the law laid down in Kihoto Hollohan's case (supra) on the ground that it was passed in violation of the constitutional mandate contained in Paragraph 3 of the Tenth Schedule.

42. In view of the above, we cannot accept the contention of learned Senior Counsel, Shri A. Dessai that mere bare claim of split, by itself without any further proof, is sufficient nor can we accept the contention of learned Senior Counsel Shri Parasaran that the evidence of split should be in the nature of split at all levels/ rungs in the political hierarchy. In our view prima facie proof of split in the original political party has to be adduced before the Speaker and the Speaker has to determine as to whether there was a split or not on the basis of the material placed before him.

43. III- Whether any interference is called for in the impugned order in the light of the parameters of judicial review laid down by the Apex Court in Kihoto Hollohan's case :--

We now come to the third aspect on which the arguments were advanced by learned Counsel for the parties which is as to whether any interference is called for in the impugned order passed by the Speaker in the light of the parameters of judicial review laid down by the Apex Court in Kihoto Hollohan's case (supra).

44. On either side arguments have been advanced that the expulsion order dated 24-7-98 and the declaration of split dated 24-7-98 have been ante dated, whereas the alleged expulsion and the alleged split took place on 27th July, 1998. In fact, it does not really matter much whether the said documents were executed on 24th July or 27th July, 1998. Even after the expulsion of the members of the Legislature party from the political party the expelled legislative members are still deemed to belong to the original political party in terms of Explanation to Paragraph 2(1) of the Tenth Schedule. The strategy of the expulsion to counteract the split cannot obviously work in the light of the law laid down by the Apex Court in Vishwanathan's case. In Vishwanathan's case two AIADMK legislators had been expelled who, subsequently, joined MDMK party and they were disqualified on the ground that they had voluntarily given up membership of the original political party since they joined MDMK party and, as such, they were disqualified under Paragraph 2(1)(a) of the Tenth Schedule. The said MLAs did not claim any protection under Paragraph 3. As we have already pointed out, even after expulsion such members are deemed to belong to the original political party and if they join a faction of the original party, as a result of split in the original political party and such group consists of not less than one-third members of such legislature party, the protection under Paragraph 3 would be available to them. Therefore the finding of the Speaker, that petitioners Nos. 6 to 10 stood disqualified due to expulsion and their joining Goa Rajiv Congress party, is in violation of the constitutional mandate of Paragraphs 2 and 3 of the Tenth Schedule. Consequently, the findings of the Speaker that petitioners Nos. 1 to 5 do not form one-third members of the group necessary under Paragraph 3 is also in violation of the constitutional mandate contained in Paragraphs 2 and 3 of the Tenth Schedule.

45. Corning to the question of split in the original political party, it is not necessary that the plea of split should have been specifically taken by the petitioners in their letter dated 27-7-98 to the Speaker. In the said letter the petitioners had stated that they had decided to form a separate group in the Congress-I Legislature party under the name of Goa Rajiv Congress party and sought separate sitting arrangement for the said group in the Assembly. The plea of split can be taken even at the time of filing reply to the disqualification petition as was done in Ravi Naik case (supra). We may also point out that a split can be inferred from the conduct of the members or other circumstances which may be placed before the Speaker. Further, it may be pointed that the first petitioner in his letter dated 27th July, 1998 had in fact informed the Governor that a group of MLAs belonging to Congress-I Legislature party had split from the party and had formed a separate party called Goa Rajiv Congress party. The declaration of MLAs numbering 23 supporting the first petitioner was filed before the Governor along with the resolution passed on 24th July, 1998. The Speaker had discarded the resolution dated 24-7-98 on the ground that it was ante dated. Affidavits had been filed before the Speaker by all the petitioners about split and formation of Goa Rajiv Congress party. On the question of split the Speaker had held in para 81 that the document produced and relied up by the petitioners when read with the pleadings clearly indicate that there has not been any split either of the executive committee. State Level. Block Level etc. He added that one-third split in the organization/political party is not required but split should be at all rungs. It is further stressed that the petitioners had not set out or claimed of any split beyond ten petitioners nor there is any proof in this regard. We may point out that the Speaker belongs to INC and is bound to be aware of the party constitution as well as constitution of AICC. PCC. etc. Even though the petitioners did not specifically place before him that two of the petitioners were AICC members, out of six from Goa and five of the petitioners were PCC members, yet when the Speaker came to the conclusion that the documents produced and relied upon by the petitioners did not indicate that there has been any split either in the Executive Committee, State Level, Block Level, etc. he lost sight of the fact in the context that two of the petitioners were members of the AICC out of six from Goa and five of the petitioners were members of PCC Committee. The position that two of the petitioners are members of AICC out of six from Goa and five of them are members of PCC has not been disputed before us and the only plea in this respect which has been put up before us is that the said facts were not placed before the Speaker. The Speaker, in our opinion, should have taken cognizance of these facts. The petitioners had met together and took decision to split from the Congress-I party and to form a separate group namely Goa Rajiv Congress party. We have already pointed out that the split need not necessarily be showdown of groups inter se face to face in the party forum and it need not also be a two-way affair, but it can be unilateral act of severance, separation of links with the political party resulting in factions. The split and formation of faction/group can be simultaneous i.e. one after another and even without any time lag in between though the split must occur first resulting in faction/group.

46. On the basis of the material which was before the Speaker, his conclusions that split had not been proved or that the petitioners Nos. 6 to 10 stood disqualified under Paragraph 2(1)(a) for having given up their membership of the political party by joining Goa Rajiv Congress party and the petitioners Nos. 1 to 5 by themselves did not form one-third members of the group and, as such, they stood disqualified, are not only in violation of the constitutional mandate contained in Paragraphs 2 and 3 of the Tenth Schedule, but in our opinion, the said findings on the basis of material placed before the Speaker are perverse and are liable to be set aside. The Speaker has himself come to the conclusion in Paragraph 68 that keeping aside the expulsion, from the very conduct of the petitioners and more specifically letter dated 27-7-98 (Exh. A to the petition) which is signed by all the ten petitioners) it is clear that the petitioners have given up the membership of their original political party viz., the Indian National Congress by having formed another political party viz., Goa Rajiv Congress party. In such eventuality, the petitioners would be protected under Paragraph 3 of the Tenth Schedule once the split is established in the original political party, which in our opinion have been duly proved.

47. In addition, we would like to point out that the findings of the Speaker are vitiated on account of lack of fair play which is part and parcel of principles of natural justice and on account of partisan attitude of the Speaker.

48. The high constitutional office of the Speaker has been highlighted by Shri G,V. Mavlankar and Pandit Jawaharalal Nehru which has been quoted in Paragraph 116 of the judgment of the Apex Court in Kihoto Hollohan's case (supra). Pandit Jawaharlal Nehru had opined that Speaker's post should be occupied by men of outstanding ability and impartiality. Confidence in the impartiality of the Speaker is an indispensable condition for successful working of democratic system. Caesar's wife must be above suspicion. Justice should not only be done but it should be seen to have been done. The Apex Court in Paragraph 118 in Kihoto Hollohan's case (supra) has expressed the hope that the robes of the Speaker do change and elevate the man inside.

49. Learned Advocate for the petitioners, pointed out various factors to demonstrate that the Speaker acted in a biased manner. Learned Advocates for the respondents, submitted that challenge on the ground of personal bias or mala fides is not available.

50. We now proceed to illustrate the factors pointed out by learned Advocate for the petitioners which lead us to come to the conclusion that the Speaker had abandoned fair play and acted in a partisan manner :

(i) The notice for removal of the Speaker was given on 13-7-98 by two members of MGP and one member of B.J.P. and as per notice published in the Assembly Bulletin Part II, Notice of Motion was to be taken on 29th July, 1998. On 27th July, 1998 the petitioners had informed the Speaker that they had decided to separate from Congress-I Legislature party and to form Goa Rajiv Congress party and made a request to allot separate seats to the said group in the Assembly. It is in this background that ex-parte ad interim order passed by the Speaker on 28th July, 1998 disqualifying the petitioners has to be viewed. After disqualifying the petitioners by ex-parte ad interim order, the motion against the Speaker is said to have been taken on 29th July, 1998 and defeated. The said ex-parte ad interim order of the Speaker was set aside by the Division Bench of this Court to which both of us are parties in Writ Petitions No. 296/98 and 297/98. This judgment is dated 3rd August, 1998 wherein we had held that the Speaker had acted in great haste and against all canons and principles of natural justice and it appeared that the impugned order was passed with a view to preempt the corning events which had cast their shadow before. It was also found that the ground on which the public notice was issued that inspite of attempts to serve the petitioners, they could not be served, was not correct.

(ii) Treasury Benches disrupted the Assembly proceedings on 27-7-98 and at 3.10 p.m. the Speaker adjourned the proceedings to 28-7-98. It may be pointed out that the Ministry- headed by respondent No. 2 had fallen into minority on account of the petitioners leaving the Congress-I party. These facts are therefore significant from this point and in the meantime Disqualification Petitions No. 1/98 and 2/98 were filed on 27-7-98 in the evening and ex-parte ad interim order was passed at 1.30 p.m. on 28-7-98 restraining the petitioners from participating in the proceedings of the Goa Legislative Assembly from 28-7-98.

(iii) In reply filed by the petitioners, grounds of bias, mala fides had been alleged and it was submitted that the said issues be decided first as preliminary issues. The Speaker took the defence of necessity in going ahead with the matter. Learned Advocates for the respondents, have stated that the Speaker is the only authority under the Tenth Schedule to decide the issue. However, the said argument loses sight of Rule 7(4) of the Members of Goa, Daman and Diu Legislative Assembly (Disqualification on ground of Defection) Rules, 1986 which have been framed under Paragraph 8 of the Tenth Schedule by the Speaker of Goa, Daman and Diu Legislative Assembly. The said Rule 7(4) as also Rules 7(5) and 7(6) read as under :---

"(4) After considering the comments, if any, in relation to the petition, received under sub-Rule (3) within the period allowed (whether originally or on extension under that sub-Rule), the Speaker may either proceed to determine the question or, if he is satisfied, having regard to the nature and circumstances of the case that it is necessary or expedient so to do, refer the petition to the Committee for making a preliminary inquiry and submitting a report to him.

(5) The Speaker shall, as soon as may be after referring a petition to the Committee under sub-Rule (4), intimate the petitioner accordingly and make an announcement with respect to such reference in the House or, if the House is not then in session, cause the information as to the reference to be published in the Bulletin.

(6) Where the Speaker makes a reference under sub-Rule (4) to the Committee, he shall proceed to determine the question as soon as may be after receipt of the report from the Committee."

Before the Speaker the case of Election Commission of India v. Dr. Subramaniam Swamy and another (supra) was quoted on the ground of necessity. In the said case the allegations of bias had been levelled against the Chief Election Commissioner before whom the matter was pending and the Apex Court indicated the proper course to be followed in the situation as under :-- "Therefore, the proper course to follow is that the Chief Election Commissioner should call a meeting of the Election Commission to adjudicate on the issue of disqualification of Ms. J. Jayalitha on the grounds alleged by the respondent. After calling the meeting he should act as the Chairman but then he may refuse himself by announcing that he would not participate in the formation of opinion. If the two Election Commissioners reach a unanimous opinion, the Chief Election Commissioner will have the opinion communicated to the Governor. If the two Election Commissioners do not reach a unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, the doctrine of necessity would compel the Chief Election Commissioner to express his views so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith as required by Article 192(1) of the Constitution."

In view of the above, the Speaker could have resorted to the procedure prescribed under Rule 7(4) of the said Rules. Of course, on the receipt of the report of the Committee, the Speaker has to proceed further to determine the question, but then report of the Committee has to be given due regard and consideration.

(iv) The date of expulsion order of petitioners Nos. 6 to 10 was sought to be proved by the fact that a copy of the expulsion order along with Form I and Form III was handed over to the Speaker on 25-7-98 at 8.00 p.m. and the Speaker in his impugned order has relied upon this fact that the same was received by him on 25-7-98 and on the basis of the same he has accepted the theory of expulsion on 24-7-98. Papers which are filed by the parties are not received by any constitutional functionary himself but the Secretary or the office of the constitutional functionary receives the same. If the said papers had been handed over to the Secretary of the Legislature, then probably the portion would have been somewhat different and in case of challenge. Secretary of Legislature could be summoned to appear before the Speaker. The acceptance of the said papers by the Speaker is something unusual which we are not able to appreciate.

(v) Two Ministers and Deputy Speaker were expelled by expulsion order dated 24-7-98. The Ministers could not be continued after the expulsion, but they were sought to be dropped only on 27-7-98 which fact may throw doubt on the date of expulsion order as well as receipt of the same by the Speaker on 25-7-98. On the contrary, there is some justification of withholding of publicity of split since, according to the petitioners, alignment had to be finalized.

(vi) The Speaker had fixed the Order of Disqualification Petitions No. 1/98 and 2/98 on 14-8-98 at 12.00 noon which was adjourned to 4.00 p.m. and it is the contention of the petitioners that the same was done with a view to entertain Disqualification Petition No. 3/98 filed by respondent No. 4. On that Disqualification petition, order was passed by the Speaker fixing the same for interim orders on 17-8-98. The petition has now been kept sine die by the Speaker.

(vii) The Speaker did not give any copy of the order of Disqualification passed against the petitioners on 14-8-98 at 4.00 p.m. even though passages from the typed judgment had been read by the Speaker at the time of pronouncement of the said judgment. The petitioners have made a grievance that the supply of copy had been intentionally delayed to preempt them from approaching this Court for relief and the copy of the judgment was furnished to them only on 17-8-98 in the after lunch session when the present writ petition was being argued before this Bench for the purpose of stay. It is pertinent to note in this connection that the first petitioner had been asked by the Governor to seek Vote of Confidence on 19-8-98.

(viii) The letter dated 14-8-98 with which the operative order was sent to the petitioners shows that the judgment was to be annexed with it, but the words "judgment and" were deleted by whitener and the text of the judgment was withheld till after lunch session on 17-8-98.

51. All the above circumstances are clear indication of the fact that the Speaker had abandoned fair play which is part and parcel of principles of natural justice and he had acted with partisan attitude which has affected his assessment of material on record.

We are aware that ordinarily courts would be loathe to uphold allegations of bias against a person holding high constitutional office, but the facts and circumstances disclosed are glaring on the face of it which had to be taken note of by us.

52. In view of the above, even on the ground of principles of natural justice and the partisan attitude of the Speaker, the impugned order is liable to be set aside.

53. So far as the Disqualification Petition No. 3/98 is concerned, we do not find, in the facts and circumstances of the case, there is any misjoinder as alleged by the learned Advocate for respondent No. 4. We do not wish to express any opinion in the matter but would like to observe that in case the said petition is found to be maintainable, the same shall be dealt with in the light of the observations made in this judgment and in accordance with the law on the subject.

54. For the aforesaid reasons impugned judgment and order dated 14-8-98 passed by the Speaker allowing Disqualification Petitions No. 1/98 and 2/98 and disqualifying the petitioners w.e.f. 27-7-98 from being members of the Legislative Assembly of Goa under Article 191(2) of the Constitution read with Tenth Schedule, is hereby quashed and set aside.

We further direct that the Disqualification Petition No. 3/98. in the event it is found to be maintainable, shall be dealt with in the light of the observations made in this judgment and in accordance with the law on the subject.

The writ petition is allowed in the aforesaid terms and rule is made absolute in the aforesaid terms. The parties are however, left to bear their costs.

55. At this stage, learned Advocate Shri Vahidulla, appearing on behalf of respondents Nos. 2 and 3 seeks stay for one week of the judgment passed by us. Learned Advocate Shri Coelho Pereira opposes the grant of stay and relies upon a Division Bench judgment of Madhya Pradesh High Court in Ramgopal Satyanarain, Bus Operator, Rewa v. M. P. State Road Transport Corporation, Bairagrah, Bhopal and others, .

56. We have arrived at our conclusions primarily on the basis of law laid down by the judgments of the Apex Court. Hence the request for stay is refused.

57. Petition allowed.